The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/00896/2018


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
on 28 November 2018
on 30 November 2018




Before

UPPER TRIBUNAL JUDGE blum

Between

ERROL LLOYD BARRETT
(anonymity direction NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT


Respondent

Representation:

For the Appellant: None (the appellant acted as a litigant-in-person)
For the Respondent: Mr S Kandola, Senior Home Office Presenting Officer


DECISION AND REASONS

1. This is a remade decision following the identification of a material error on a point of law in the decision of Judge of the First-tier Tribunal O R Williams (the judge), promulgated on 11 April 2018, in which he dismissed the appellant's appeal against the respondent's decision dated 8 January 2018 refusing to issue him with a residence card as the former family member of an EEA national exercising Treaty rights who has a retained right of residence under regulation 10(5) of the Immigration (European Economic Area) Regulations 2016 (the 2016 Regulations).

2. In an 'error of law' decision promulgated on 20 July 2018 I found that the judge erred in law by failing to adjourn the hearing in order to make an 'Amos Direction' pursuant to Amos v SSHD [2011] EWCA Civ 552 to obtain HMRC records relating to his ex-wife's employment for the period 1996 to 31 October 2015. I additionally found that the judge, through no fault of his own, misdirected himself in respect of the application of Reg 10(5) of the Immigration (European Economic Area) Regulations 2016 following the Court of Appeal decision of Baigazieva v Secretary of State for the Home Department [2018] EWCA Civ 1088, promulgated on 20 April 2018, after the date of the decision under appeal.

3. I set aside the decision of the First-tier Tribunal and issued an Amos Direction. In compliance with the Amos Direction the respondent provided a witness statement from Wendy Gilbert, an officer of HMRC, dated 10 October 2018, setting out the Self-Assessment tax return details for the appellant's ex-wife (Ms Mirella Favia) covering the years 2016 to 2018, and PAYE details covering the years 2003 to 2012. The statement indicated that there was no employment recorded for the appellant's ex-wife in the years 2010 to 2011 and 2011 to 2012, and no PAYE employment records were held for the tax years 2012 - 2013 to 2015 - 2016.

Factual Background

4. The appellant is a national of Jamaica, born in 1972. According to his witness statement dated 26 March 2018 he met Ms Favia, an Italian national, in Jamaica in August 2009 and they got married on 19 November 2010. She gave birth to their child, a son, on 19 November 2011. The appellant, Ms Favia and their son went to Italy in December 2011 and decided to move to the UK in 2012. He first entered the United Kingdom on 28 June 2012 as the family member of his wife who was exercising her EEA free movement rights as a jobseeker.

5. On 4 December 2012 the appellant was issued with a residence card as the family member of his Italian national wife, valid until 4 December 2017. According to Ms Gilbert's witness statement Ms Favia had been employed in various jobs in the UK from 2003 to sometime in 2009/2010. It was the appellant's evidence that he met Ms Favia in Jamaica in August 2009. I am satisfied, based on this evidence, that Ms Favia had been exercising EEA treaty rights in the UK from 2003 to 2009. She would therefore have attained a permanent right of residence in the UK. The evidence before me however indicates that she left the UK, at the latest, in August 2009, and did not return for the purpose of residence until 2012. Her right of permanent residence was consequently lost by virtue of Reg 15(3) of the 2016 Regulations.

6. The relationship between the appellant and his wife soured and divorce proceedings were initiated some time round July 2015. On 24 October 2017 the appellant applied for a residence card confirming that he retained a right of residence following his divorce.

7. The respondent refused to issue the residence card because the appellant only submitted a photocopy of his ex-wife's Italian passport. Nor was the respondent satisfied that the appellant and his ex-wife had both been living in the UK for at least one year during the marriage, or that his ex-wife was exercising treaty rights at the date of the termination of the marriage, or that he had been a worker, self-employed person or self-sufficient person since the termination of the marriage.

The evidence

8. A bundle of documents prepared for the First-tier Tribunal hearing contained, inter alia, a statement from the appellant, a GCID Case record Sheet indicating that the appellant was initially issued with a residence card because his ex-wife was a job-seeker who had previously been employed in the UK, an HMRC employment history relating to the appellant, issued on 19 January 2018, showing the appellant's employment for the tax years 2013 to 2018, the decree absolute (6 October 2015, referring to the decree nisi issued on 21 August 2015), copies of Ms Favia's passport, and various wage slips relating to the appellant.

9. In his statement the appellant set out his immigration history, described the history of his relationship with his ex-wife, and explained that he maintained a strong relationship with his son. In his oral evidence before the Upper Tribunal the appellant accepted the evidence obtained pursuant to the Amos Direction. He explained that his application was made to enable him to maintain his good relationship with his son. He did not suggest, or provide any evidence that Ms Favia had been exercising Treaty rights in the UK from 2012 to 2016, other than as a job-seeker when she first entered in 2012.

Reasons for decision

10. I found the appellant an entirely credible witness. He was open and forthright in his account of his immigration history, his relationship with his ex-wife, and his relationship with his son. The various HMRC documents, in conjunction with the wage slips, confirm that he has been employed in the UK from 2013 to at least June 2017. I have no reason to doubt the appellant's claim that he enjoys a good relationship with his son.

11. I explained to the appellant at the remade hearing that I was nevertheless bound to consider whether he was entitled to a residence card as a family member who has retained the right of residence. In order to retain a right of residence under Reg 10 of the 2016 Regulations the appellant must demonstrate that he was residing in the UK in accordance with the Regulations at the date of the termination of the marriage. In Baigazieva, Singh LJ observed that, in the light of the CJEU's judgment in NA v Secretary of State for the Home Department [2017] QB 109, the SSHD now accepted that, in order to meet the condition in regulation 10(2)(a) to have been the family member of a qualified person (within the meaning of Reg 6), it was sufficient for the person asserting the retained right of residence to show that the EEA national spouse/partner was a qualified person as at the date of the initiation of divorce proceedings, rather than at the date of decree absolute.

12. The divorce proceedings were initiated sometime in July2015. There was however no evidence that the appellant's ex-wife was a qualified person at that time. Indeed, there is no evidence that she exercised any Treaty rights as a qualified person until sometime in 2017, other an as a job-seeker when she entered the UK in 2012. There was no evidence that the appellant's ex-wife sought employment or that she had registered as a job-seeker following her entry into the UK in 2012. She could not have remained a job-seeker from 2012 until 2015. In these circumstances I find the appellant is not a family member who retained a right of residence and was not therefore entitled to a residence card.


Notice of Decision

The EEA appeal is dismissed




28 November 2018

Signed Date
Upper Tribunal Judge Blum