Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/01592/2016

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On 27 February 2017
On 03 March 2017

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

MR THIAGO FERNANDES GOMES PEREIRA
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Mr P Duffy, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Boylan-Kemp, promulgated on 24 May 2016. Permission to appeal was granted by Upper Tribunal Judge Rintoul on 23 December 2016.

Anonymity
2. No direction has been made previously, and there is no reason for one now
Background
3. The appellant was issued with a Family Member Residence Stamp on 17 August 2009. He was issued with a residence card on 7 October 2010. On 19 August 2015, he applied for a permanent residence card. That application was refused on 23 January 2016.
4. The appellant's application for a residence card was refused because it was said that he had provided insufficient evidence to show that his spouse was exercising Treaty rights in the United Kingdom for a continuous five-year period.
The hearing before the First-tier Tribunal
5. At the hearing before the First-tier Tribunal, the appeal proceeded by way of a paper consideration, at the appellant's request. The judge found that the appellant had provided no further evidence in support of his appeal and concurred with the view of the respondent.
The grounds of appeal
6. The grounds of appeal in support of the application stated that the appellant's spouse had been living and working in the United Kingdom since 2009.
7. In considering this matter on 23 December 2016, Upper Tribunal Judge Rintoul noted a document attached to the original grounds of appeal to the First-tier Tribunal, which took the form of a printout from the spouse's employer of her weekly earnings from the financial year 2010/2011 until 2014/2015 as well as from 6 April 2015 until 29 January 2016. Permission to appeal was granted on the basis that the judge failed to take into account or failed to explain why this document did not amount to evidence of the exercise of Treaty rights. Judge Rintoul expressed his preliminary view that the decision of the First-tier Tribunal involved the making of an error of law; that it should be set aside and remade in the Upper Tribunal by being allowed on the basis that the appellant had shown that his spouse was exercising Treaty rights for a period of 5 years and that he had been residing with her. He made the following direction:
"Accordingly, unless submissions to the contrary are made within 5 working days of the issue of this order, the Upper Tribunal will set aside the decision of the First-tier Tribunal and remake it, allowing the appellant's appeal under the Immigration (European Economic Area) Regulations 2016."
8. The respondent’s Rule 24 response, received on 9 January 2017, indicated that the respondent did not oppose the application and invited the Upper Tribunal to determine the appeal with a fresh oral hearing. The respondent explained that because she had not seen the printout of the spouse's earnings, she was unable to concede at that stage whether the appeal should be allowed outright.
9. Upper Tribunal Judge Rintoul made further directions on 19 January 2017, in which the appellant was directed to serve on the respondent, at least 7 days before the hearing, the original letter from her employer, namely Wagamama, dated 30 May 2016 and any other material confirming that she had been in employment as claimed.
10. Further directions were made on 30 January 2017 for the parties to serve on each and the Tribunal any documentary evidence upon which evidence was placed, even if previously served.
The hearing
11. When this matter came before me, there was no attendance by or on behalf of the appellant. I was satisfied that notice of the hearing had been posted to the appellant at the address he had provided and decided to proceed with the matter in his absence. Mr Duffy simply invited me to decide the matter on the basis of the evidence before me.
12. At the end of the hearing I reserved my decision.
Decision on error of law
13. The sole issue in this appeal is whether the appellant’s spouse (hereinafter referred to as the sponsor) was exercising Treaty rights in the United Kingdom for a continuous 5-year period. Judge Boylan-Kemp concluded that the appellant provided no further evidence in support of his appeal. That is simply not the case. Attached to the notice of appeal were a significant quantity of documents. Most importantly, the sponsor’s employment history was set out in a schedule which detailed her substantial weekly earnings at Wagama from 9 April 2010 until 29 January 2016. For this reason, I conclude that the First-tier Tribunal involved the making of an error of law and the decision is set aside accordingly.
14. I have decided to remake the decision in the Upper Tribunal on the basis of all the evidence before me. The schedule of weekly earnings alone suffices to establish that the sponsor was exercising Treaty rights, in a genuine and effective manner, for a continuous period of five years. In addition, in appealing to the Upper Tribunal, the appellant has provided a letter dated 30 May 2016 from the sponsor’s employer which confirms that she has been employed by Wagamama since 20 December 2009 until the date of the letter. The letter also mentions that the sponsor only stopped working to go on maternity leave on 23 December 2011. On that last point, I have taken into consideration the decision in Weldemichael and another (St Prix [2014] EUECJ C-507/12; effect) [2015] UKUT 00540, where it was held that an EEA national woman will retain continuity of residence for the purposes of 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 CJEU in St Prix: (i) at the beginning of the relevant period she was either a worker or seeking employment; (ii) the relevant period commenced no more than 11 weeks before the expected date of confinement (absent cogent evidence to the contrary that the woman was physically constrained from working or seeking work); (iii) the relevant period did not extend beyond 52 weeks; and (iv) 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 and Time spent in the United Kingdom during such periods counts for the purposes of acquiring permanent residence.
15. In this case, the sponsor was a worker prior to commencing her maternity leave, in that she had been employed since December 2009 and was commencing her maternity leave two years later. The child of the appellant and sponsor was born in March 2012, less than 3 months after the maternity leave started. While it is unclear what the sponsor’s expected date of confinement was, if the sponsor’s maternity leave commenced more than 11 weeks prior to the EDC, this is understandable given that her job involves working in a busy restaurant rather than office work.
16. I am satisfied that the nature of such work amounts to cogent evidence that the sponsor would be physically constrained from working in the later weeks of her pregnancy. The evidence before me establishes that the sponsor’s maternity leave did not extend beyond 52 weeks and that she returned to work.
17. The appeal is allowed.

Conclusions

The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

I set aside the decision to be re-made.

I substitute a decision allowing the appeal on the basis that the appellant demonstrated that his spouse was exercising Treaty rights in accordance with Regulation 15.

Signed Date 13 January 2022

Upper Tribunal Judge Kamara

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make no fee award for the following reason. The evidence which led to this appeal being allowed was not before the respondent at the time the application for permanent residence was being considered.

Signed Date: 13 January 2022

Upper Tribunal Judge Kamara