Tribunal decisions

The decision

IAC-AH-KRL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/00911/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10th March 2017
On 23rd March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

Edwina Funsho Deniyi
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Adeolu of David and Vine Solicitors
For the Respondent: Miss Z Ahmad, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction and Background
1. The Appellant appeals against a decision of Judge A W Khan of the First-tier Tribunal (the FtT) promulgated on 15th September 2016.
2. The Appellant is a female Nigerian citizen, born 11th July 1976 who on 10th April 2015 applied for a permanent residence card as confirmation of her right to reside in the United Kingdom. The application was made on the basis that the Appellant had previously been married to an EEA citizen. That marriage ended in divorce on 27th January 2010. At that time the Appellant’s former spouse had been exercising treaty rights. As a result the Appellant was found to have retained a right of residence and was granted five years’ residence between 8th December 2010 and 8th December 2015.
3. The Respondent refused the application on 7th September 2015 with reference to regulation 10(5) and 15(1)(f) of the Immigration (European Economic Area) Regulations 2006 (the 2006 regulations).
4. In summary, the Respondent did not accept that at the date of divorce the former spouse was exercising treaty rights and therefore the requirement of regulation 10(5) was not satisfied.
5. The Respondent contended that the Appellant had not proved that she had been exercising treaty rights for a continuous five year period. The Respondent noted that the Appellant was made redundant on 30th April 2010, and the evidence did not indicate that she commenced employment again until 6th March 2012. The Respondent also contended that the evidence of self-employment submitted by the Appellant, was insufficient to demonstrate that she had been a self-employed person in the United Kingdom.
6. The Appellant appealed pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) and the appeal was heard by the FtT on 25th August 2016.
7. The FtT found (paragraph 11) that insufficient evidence had been submitted to prove the Appellant’s former spouse was exercising treaty rights at the date of divorce and therefore regulation 10(5)(a) was not satisfied.
8. The FtT found (paragraph 13) that there was a gap in the Appellant’s self-employment, which was either between 1st April 2011 and 30th June 2011, or between 1st May 2011 and 30th June 2011.
9. The FtT accepted that the Appellant had received statutory maternity pay for a period of 39 weeks from the end of her employment on 31st May 2010. This would have lasted until the third week of March 2011. The FtT found that the Appellant did not start work again until 1st July 2011, and therefore between the time when maternity pay ceased, and 1st July 2011, the Appellant was neither a worker or a self-employed person. She had therefore not proved that she had resided in the United Kingdom in accordance with the 2006 regulations for a continuous period of five years.
10. The Appellant applied for permission to appeal to the Upper Tribunal. In brief summary it was contended the FtT had materially erred in finding that the former spouse was not exercising treaty rights at the date of divorce. This had been conceded by the Respondent’s representative at the commencement of the FtT hearing, and because of that concession, no further evidence was given.
11. It was further contended that the FtT had erred in law in finding that there was a gap in the Appellant’s employment. It was contended that the FtT had not taken into account the guidance in Weldemichael and Another [2015] UKUT 00540 (IAC). It was contended that the Appellant had not lost her status as a worker by reason of being on maternity leave.
12. Permission to appeal was granted and directions were issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FtT decision contained an error of law.
The Upper Tribunal Hearing
13. At the commencement of the hearing Miss Ahmad indicated that it was accepted the FtT had erred in law in concluding that regulation 10(5)(a) was not satisfied. Miss Ahmad confirmed that the Respondent’s file indicated that a concession had been made before the FtT that the Appellant’s former spouse was exercising treaty rights at the date of divorce. Miss Ahmad submitted that this error was not material, on the basis that the FtT had not erred in finding that the Appellant had not proved that she had been exercising treaty rights for a continuous five year period.
14. In making oral submissions Mr Adeolu relied upon the grounds contained within the application for permission to appeal. In summary it was submitted that the FtT had erred in law in finding at paragraph 13 that the Appellant had not been exercising treaty rights for a continuous period of five years. The FtT should have taken into account the guidance in Weldemichael which indicated that the Appellant retained continuity of residence when she was not in employment because of her pregnancy.
15. Miss Ahmad in making oral submissions submitted that Weldemichael did not assist the Appellant, because that decision only related to EEA nationals, and not family members of EEA nationals.
16. In the alternative, if Weldemichael did apply, the guidance did not assist the Appellant, because she had been without employment for a period in excess of 52 weeks.
17. By way of response Mr Adeolu submitted that Weldemichael did apply to family members of EEA citizens, pointing out that the second Appellant in that case was a Nigerian citizen. Mr Adeolu submitted that a 52 week period was referred to in the head note of Weldemichael, but this was not in fact reflective of the decision as a whole and the Upper Tribunal had not stipulated that there was a time period of 52 weeks.
18. At the conclusion of oral submissions I reserved my decision.
My Conclusions and Reasons
19. I find that the FtT erred in law at paragraph 11 in finding that the former spouse had not been exercising treaty rights at the date of divorce on 27th January 2010. I am satisfied this point was in fact conceded by the Respondent’s Presenting Officer at the commencement of the hearing before the FtT. The Appellant had in fact been granted residence documentation following her divorce, based upon an acceptance that her former spouse had been exercising treaty rights at the date of divorce.
20. The FtT therefore erred in law on this issue, but I find that this error is not material as I find no error in relation to the FtT finding regarding regulation 15(1)(f). In order to acquire a permanent right of residence the Appellant must prove that she has resided in the United Kingdom in accordance with the 2006 regulations for a continuous period of five years, and was, at the end of that period a family member who has retained the right of residence.
21. The FtT found the Appellant had not proved that she had been exercising treaty rights for a continuous period of five years. The FtT found that the evidence indicated that the Appellant ceased employment on 31st May 2010, and she did not start work again until 1st July 2011. The FtT found that the Appellant received statutory maternity pay until the third week of March 2011. These findings have not been challenged in the grounds seeking permission to appeal.
22. The FtT was not referred to Weldemichael by either party. I do not find that the guidance in Weldemichael assists the Appellant in showing that the FtT erred in law. I do not accept the submission that Weldemichael only applies to EEA citizens, and I set out below the head note to that decision which I find is an accurate summary of the guidance given;
An EEA national woman will retain continuity of residence for the purposes of the Immigration (European Economic Area) Regulations 2006 (the 2006 EEA regulations) for a period in which she was absent from working or job seeking owing to the physical constraints of the late stages of pregnancy and the aftermath of childbirth if, in line with the decision of the CJU in Jessy St Prix:
(a) at the beginning of the relevant period she was either a worker or seeking employment;
(b) the relevant period commenced no more than eleven weeks before the expected date of confinement (absent cogent evidence to the contrary that the woman was physically constrained from working or seeking work);
(c) the relevant period did not extend beyond 52 weeks; and,
(d) she returned to work.
So long as these requirements are met, there will be no breach of the continuity of residence for the purposes of regulation 15. Time spent in the United Kingdom during such periods counts for the purposes of acquiring permanent residence.
23. The guidance in the head note is taken from paragraph 59 of Weldemichael. The FtT was correct in finding that the Appellant had not retained continuity of residence. This is because the Appellant ceased employment on 31st May 2010, and did not start again until 1st July 2011. Therefore the relevant period did extend beyond 52 weeks, and for that reason the Appellant did not retain continuity of residence, and the FtT was correct to find that she had not exercised treaty rights for a continuous five year period.
24. Therefore although the FtT erred in finding the Appellant’s former spouse was not exercising treaty rights at the date of divorce, that error was not material, because the appeal could not succeed as the FtT did not err in finding that the Appellant had not exercised treaty rights for a continuous five year period.
Notice of Decision
The making of the decision of the FtT did not involve the making of a material error on a point of law. I do not set aside the decision. The appeal is dismissed.
Anonymity
No anonymity direction was made by the FtT. There has been no request made to the Upper Tribunal for anonymity and I see no need to make an anonymity order.

Signed Date 15th March 2017

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The appeal is dismissed. There is no fee award.

Signed Date 15th March 2017

Deputy Upper Tribunal Judge M A Hall