Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/02418/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 November 2016
On 9 November 2016

Before

UPPER TRIBUNAL JUDGE WARR

Between

SERGE MINOU
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE for the HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Khalid, of counsel, instructed by Chancery CS Solicitors
For the Respondent: Mr P Singh, Home Office Presenting Officer.

DETERMINATION AND REASONS
1. The appellant is a national of Cameroon born on 18 October 1979. He appeals the decision of the Secretary of State on 9 February 2016 refusing to issue him with a permanent residence card as the former spouse of an EEA national exercising Treaty Rights in the United Kingdom.
2. The appellant had applied for a residence card as a spouse of an EEA national and this was issued on 11 February 2010 and was valid until 11 February 2015.
3. On 7 September 2015 the appellant's representatives applied for a permanent residence card as a confirmation of a retained right to reside in the United Kingdom.
4. It is common ground that the appellant's marriage ended in divorce on 2 November 2015. The appellant had got married to his wife on 2 February 2009.
5. The respondent refused the application because she was not of the view that evidence had been provided that his wife was exercising treaty rights from November 2011 to December 2012, from May 2014 to February 2015, and also from October 2015 up until the point of the divorce.
6. The respondent was also of the view that the appellant had failed to provide evidence of his self-employment since the divorce and refused the application on that basis also. The appellant's appeal came before a First-tier Judge on 12 May 2016 to be determined as a paper case, neither party requesting an oral hearing. The judge exercise discretion to determine the appeal on the papers. In paragraph 5 of the decision the judge stated that the burden lay on the appellant to prove on the balance of probabilities that he met the terms of the Immigration EEA Regulations with reference to Regulation 15 (1) (f) "so as to show residence here in the United Kingdom for a continuous period of five years."
7. Having considered pages in the appellant's bundle the judge found that he could not see evidence that the appellant's spouse had been exercising treaty rights from November 2011 to December 2012. In paragraph 15 he commented "in any event it seemed to me that the real issue in this appeal turned on Regulation 10 (6) even if I am wrong on the exercise of Treaty Rights by the EEA national." Having found nothing in the papers submitted to address this point the judge found that the appellant had failed to address the issue raised by the respondent. He added:
"Even if he had produced evidence in relation to missing gaps on the spouse's Treaty Rights (which was not wholly clear to me) in any event the appeal must fail for the foregoing reasons."
8. Accordingly the judge dismissed the appeal. The appellant applied for permission to appeal. A First-tier Judge granted permission on 28 September 2016. The judge noted that the marriage had run from 2 February 2009 until 2 November 2015 when the decree absolute was signed:
"Retained residence would not, therefore, have arisen as an issue had the 5 years' continuous residence been established prior to the date of divorce. It is, therefore, arguable that the judge fell into error in failing to consider the P60s relating to the exercise of Treaty Rights during the course of the marriage."
9. The respondent filed a response on 18 October 2016. In paragraph 3 of the response it was stated:
"The appellant was required to show that his ex-wife was exercising treaty rights in accordance with the EEA Regulations for the period February 2009 to February 2014. The judge noted at paragraph 14 that there were gaps in the evidence during the course of the marriage. Even if one were to count back from the date of the termination of the marriage which was in November 2015 to 2010 there was insufficient evidence available to show that the EEA national was exercising Treaty Rights for a continuous period of 5 years."
10. A difficulty arose at the hearing before me in that the appellant's evidence bundle before the First-tier Judge had become detached and was no longer in the court bundle. Mr Singh had not got a copy.
11. Mr Khalid helpfully provided the relevant parts of the bundle. He submitted that while the judge had been unable to locate the evidence it was in the bundle as the appellant had stated.
12. Mr Singh was given the opportunity to consider the bundle and the original documents. He accepted what was said in the respondent's response on the question of the 5 year period of residence that I have set out above. The respondent appeared not to have demurred from what had been said when permission to appeal had been granted. He commented that it was unclear that the judge had referred to the correct bundle as the pages that Mr Khalid had submitted filled in the gaps.
13. Having carefully gone through all the material Mr Singh accepted that the evidence showed that the appellant's spouse had been exercising Treaty Rights during the marriage in accordance with regulation 15 (1) (b). He was content that the appeal be allowed. I did not trouble Mr Khalid in the circumstances.
14. I am grateful to Mr Singh for his assistance. It is possible that the First-tier Judge, who of course did not have the assistance of representatives from either side, directed his attention to the wrong bundle. In any event is now agreed and accepted that the material before the judge ought to have led him to allow the appeal on the evidence before him.
15. Appeal allowed under the EEA regulations. The appellant is entitled to a permanent residence card having established 5 years' continuous residence under Regulation 15 (1) (f).

Anonymity Direction
The First-tier Judge made no anonymity order and I make none.
Fee Award
Any fee paid by the appellant should be returned to him.

Signed
G Warr, Judge of the Upper Tribunal

3 November 2016