Tribunal decisions

The decision

IAC-AH-LR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/01612/2015

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice, Belfast
Decision & Reasons Promulgated
On 23 February 2017
On 8 March 2017

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

Mr pawel spodniewski
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: in person
For the Respondent: Ms M O’Brien, Presenting Officer

DECISION AND REASONS
1. The appellant appeals with permission against a decision of First-tier Tribunal Judge K Swinnerton, promulgated on 16 March 2016 in which he dismissed the appellant’s appeal against the decision of the Secretary of State made on 30 September 2015 to refuse his application for a document certifying confirmation of his right of a permanent residence in the United Kingdom pursuant to Regulation 15(1) of the Immigration (European Economic Area) Regulations 2006 (“the 2006 EEA Regulations”). Since the date of the appeal, the 2006 EEA Regulations have been replaced by the Immigration (European Economic Area Regulations) 2016 (“the 2016 EEA Regulations”) but that has made no material difference to this appeal.
2. The appellant is a citizen of Poland and is married. It is his case that he has been employed by Ewing Seafoods in Belfast since 2006 on a full-time basis and, as he has lived in the United Kingdom during that period he has acquired permanent right of residence.
3. The respondent rejected the application made on 30 September 2015 on the basis that he had failed to provide evidence that he had been a qualified person for the relevant period.
4. The appellant supplied with his appeal a number of documents including his P60s for the five tax years from 2010-2011 onwards as well as a letter from his employer confirming how long he had been working. The appellant did not, however, request an oral hearing.
5. The judge recorded [13] to [15] the additional evidence that the appellant had provided, finding at [25] and [26] as follows:-
“25. The documentation provided from Ewing Seafoods and the P60 end of year tax certificates assist the appeal of the appellant but there is a discrepancy in the surname on all of that documentation. The surname is spelt Spodniewki (without the second “s”) and not Spodniewski (with the second “s”) which is the correct spelling of the appellant’s name and the spelling which appears in the appellant’s copy passport. That is an important discrepancy that cannot be overlooked.
26. Having looked at the documents in this case with care, I find that the additional documentation provided by the appellant and his employer and the tax certificate has helped such documentation needs to refer to the correct appellant”.
6. On that basis the judge dismissed the appeal.
7. The appellant sought permission to appeal on the grounds that the error had now been corrected as confirmed by the employer in a letter attached to the grounds.
8. On 9 August 2016 First-tier Tribunal Judge Lever granted permission, noting the letter from the employer stating: -
“4. It is arguable that by taking such a strict point as being the only point against the appellant in the absence of an opportunity to explain there was an arguable error of law which this letter underlines”.
9. In her response pursuant to 24 the respondent submits that following the decision in Ladd v Marshall [1954] 1 WLR 1489 that the new evidence did not meet the test and thus the appeal was opposed.
The Hearing on 23 February 2017
10. The appellant apologised for the errors that he had made, adding that these had now been corrected.
11. Ms O’Brien submitted that on the basis of the decision in Ladd v Marshall, as confirmed by the starred decision in MA (Fresh Evidence) Sri Lanka* [2004] UKIAT 00161, the evidence submitted with the application for permission to appeal to the Upper Tribunal could not be taken into account. She submitted further that the judge’s reasoning was adequate and that he had been entitled to rely on the discrepancy in the documentation.
12. What is notable about the documentation is that the only discrepancy is in the spelling of the name between passport and the other documents. Other than the omission of the letter “S” all the details such as addresses, national insurance number and employer’s details are the same.
13. What the judge does not do is say whether he accepts the documents as evidence or what weight he attaches to them. To describe documents as “helpful” does not say whether he found them persuasive or what weight was attached thereto. Then Ms O’Brien submitted that the decision was not perverse.
14. The judge’s decision does not, however, contain adequate reasoning for the conclusion that the requirements of the Regulations are not met; that is only implied. Further the judge appears to have excluded from any consideration that there was a simple explanation for the discrepancy. Taking these factors together, I consider that the decision of the First-tier Tribunal is unsafe and should be set aside. It is therefore unnecessary for me to consider whether the letter from Ewing Seafood meets the requirements of the decision in MA*.
Remaking the Decision
15. The respondent did not submit that the documents produced are unreliable. I am satisfied by the documents provided that the applicant has worked continuously for Ewing Seafood since 2006, a period well in excess of five years. I am satisfied also that this is confirmed by the P60s he has produced. I am satisfied by the letter from Ewing Seafood that it was owing to an administrative error that the appellant’s name was incorrectly recorded by his employer. Accordingly, and as the applicant is still employed by Ewing Seafood, I am satisfied that he meets the requirements of Regulation 15 of the Immigration (European Economic Area) Regulations 2016 and is thus entitled to a residence card as confirmation of that. I therefore allow the appeal on that basis.

SUMMARY OF CONCLUSIONS

(1) The decision of the First-tier Tribunal involved the making of an error of law and I set it aside.

(2) I remake the decision by allowing the appeal under the Immigration (European Economic Area) Regulations 2016.

No anonymity direction is made.

Signed Date: 6 March 2017

Upper Tribunal Judge Rintoul

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 as the appeal was necessary, the appellant not having provided the necessary evidence with his initial application.

Signed Date 6 March 2017

Upper Tribunal Judge Rintoul