Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/02557/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
Heard on 6th December 2016
On 3rd January 2017
Prepared on 23rd December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

Between

MRS MAUREEN OKORO
(Anonymity order not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr J. Patel, solicitor
For the Respondent: Mr E. Tufan, Home Office Presenting Officer

DECISION AND REASONS

The Appellant

1. The Appellant is a citizen of Nigeria born on 14 April 1985. She appealed against a decision of the Respondent dated 3 March 2016 in which the Respondent refused to issue the Appellant with a permanent residence card as confirmation of a right to reside in the United Kingdom as the family member of a European economic area national who was exercising treaty rights in the United Kingdom. Judge of the First-tier Tribunal Traynor allowed the appeal on the papers in a decision promulgated on 11 May 2016. The Respondent appeals with leave against that decision and for the reasons which I have set out below I have set the decision at first instance aside and have proceeded to remake the decision. I therefore refer to the parties as they were known at first instance for the sake of convenience.

2. The Appellant married Mr Kelvin Alfred, born on 28 December 1984, on 22nd of November 2008 their relationship having begun the year before. Mr Alfred is a citizen of Austria who has had a history of working in this country and I will refer to him as the Sponsor. On 18 December 2009 the Appellant entered the United Kingdom (having visited this country 3 years before). 11th of May 2010 she applied for and was granted a residence card as a non-EEA national. This was issued to her on 12th of October 2010. On 30th of September 2015 she applied for a permanent residence card on the basis that she had held a residence card for 5 years. It was the refusal of that application which has formed the basis of these proceedings.

Explanation for Refusal

3. In refusing the application the Respondent noted that the Appellant needed to provide sufficient evidence to demonstrate that the Sponsor was exercising treaty rights in the United Kingdom as defined under Regulation 6 of the Immigration (European Economic Area) Regulations 2006 ("the 2006 Regulations"). With her application the Appellant provided wage slips for the Sponsor for the period 11th of September 2014 and 11 January and 11th of February 2015.

4. The Respondent decided to make various checks to verify the Sponsor's employment. On 26th of February 2016 a telephone call was made to the payroll Department of Wilson James Ltd who confirmed that the Sponsor no longer worked for that company. The Sponsor had left on 18 September 2015 and there was no further evidence to demonstrate that the Sponsor was currently exercising treaty rights. The application was therefore refused under Regulation 6. The Respondent did not consider the matter under Article 8 of the European Convention on human rights, Appendix FM or paragraph 2768DE of the immigration rules stating no valid application had been received under one or other of those requirements.

The Proceedings at First Instance

5. The Appellant appealed explaining that both she and the Sponsor had been in employment until they moved from Grays in Essex. The Sponsor was looking for work and she asked for the application to be reconsidered. She had the right to stay in the United Kingdom as the family member of an EEA national. Not only was the Sponsor Austrian but so were the 2 children of their family.

6. In his determination the Judge directed himself on Regulation 6 of the 2006 Regulations which defines a qualified person. A qualified person can mean a person who is in the United Kingdom as a job seeker. The Judge noted that the Sponsor had been awarded jobseekers allowance from 2nd of September 2015. On 18 April 2016 the Sponsor began work with the Reed business support agency (although no direct written evidence of that employment appears to have been provided to the Judge).

7. At paragraphs 16 to 20 the Judge set out his findings. It was sufficient for the Sponsor to establish that he was a jobseeker and actively looking for employment for the Appellant's appeal to succeed. As this was an EEA appeal the Judge was entitled to take into account evidence given at the date of hearing. The new employment with Reed business support agency was in his view sufficient because the Appellant had provided reference numbers for that business which could be contacted by telephone if necessary in order to establish the authenticity of the information which the Appellant had provided. At paragraph 20 the Judge explained why he was allowing the appeal. The Appellant could discharge the burden of proof because:

"there is no other information which would show that the Appellant's husband is not a genuine jobseeker or someone who has not been actively pursuing employment. I find that such circumstances prevailed at the time of the application and that there was no intent on the part of the Appellant to otherwise seek to mislead the Respondent concerning her husband's circumstances. Where the Appellant's husband is a jobseeker then for the purposes of Regulation 6 he is a qualified person."

He allowed the appeal.

The Onward Appeal

8. The Respondent's appeal against this decision argued that there was a material error of law in the determination. There was no evidence to show the Sponsor was currently exercising treaty rights, there was no formal evidence of the job with Reed business support agency. The burden was on the Appellant to provide evidence in support of her claim it was not for the Respondent to obtain it for her for example by telephoning the number the Appellant gave for Reed. It was insufficient for the Appellant to argue that as she had held a residence card for 5 years she qualified for permanent residence. All the residence card demonstrated was that at the time of the original application her Sponsor was a qualified person. In order to acquire permanent residence, she needed to show that she had resided in the United Kingdom with the Sponsor in accordance with the 2006 Regulations for a continuous period of 5 years. The Judge had made no finding on that crucial point.

9. The application for permission to appeal came on the papers before Judge of the First-tier Tribunal Grimmett. In granting permission to appeal she wrote that it was arguable that there was no evidence to show that the Sponsor was exercising treaty rights at the date of decision and no evidence to show he was receiving jobseeker's allowance after 5th of April 2016. The Appellant responded to the grant of permission by way of a skeleton argument which was lodged with the Tribunal. This gave more information about the Sponsor's working history than had been provided to the Respondent at the time of the original application. The skeleton argument referred to the Sponsor being employed by G4S as a security officer between 16th of July 2012 and 31st of October 2012. Thereafter between 17th of October 2013 and 19th of September 2015 the Appellant was employed as a security officer with Wilson James Ltd. From August 2015 he was entitled to jobseeker's allowance. There were payslips to show that between 18th of April 2016 and 29th of June 2016 the Sponsor was employed as a security guard by Giant professional Ltd. After that employment finished he went on to jobseeker's allowance. Currently the Sponsor was employed by SQR as a security officer and had been since October 2016.

The Error of Law Hearing Before Me

10. At the commencement of the hearing the Appellant's solicitor referred to the detailed letter supplied by the Appellant to the Judge at the first instance hearing which gave details of the Sponsor's employment. In response and by way of argument for the Respondent's appeal against the decision at first instance the Presenting Officer stated that the Appellant could not qualify for a permanent residence card. The leading authority on the point was the Upper Tribunal decision of OA Nigeria. This made clear that a Sponsor must be exercising treaty rights for a continuous period of 5 years in order to satisfy the requirements to obtain a permanent residence card. The 5 year period did not have to start with the Appellant's arrival in the United Kingdom nor did it have to be backdated from the date of the hearing at first instance but it did have to be a continuous period of 5 years.

11. Looking at the Appellant's skeleton argument which gave more details of the Sponsor's work history than had been before the Judge this showed that the Appellant had been employed by G4S for a matter of 2 or 3 months in 2012. Employment started a year later according to paragraph 6 of the skeleton on 17 October 2013 when the Appellant went to work for Wilson James Ltd. What was the Sponsor doing in the meantime? Was he looking for a job for a year? The rule said that one can only look for a job for a maximum of 6 months but in any event the case did not reach that far because there was no evidence from the relevant period.

12. On the basis of the paperwork at the moment the most the Appellant could get would be another residence card but she could not receive a permanent residence card because that was not evidenced. A residence card was a snapshot of the situation at the time of application. For a permanent residence card there had to be 5 years of exercising treaty rights. In reply the Appellant's solicitor said that it would be possible for the Sponsor to show that he had been continuously employed for a period of 5 years he would be able to fill in the gaps.

13. I considered the submissions made to me noting that the test at this stage was whether the First-tier Tribunal had made such an error of law that the determination fell to be set aside and the appeal reheard. In considering whether the Appellant was entitled to a permanent residence card the Judge had applied the wrong test. The Judge applied the test which arises when a residence card is sought. Where a permanent residence card is sought the test is more onerous. The relevance then of the 5 year period is that the Appellant must be able to show that her Sponsor had exercised treaty rights over a continuous period of 5 years. There was nowhere near enough evidence before the Judge at first instance to show that and it was therefore an error of law to allow the appeal on the limited evidence which was available even if it was more than the Respondent had had. I indicated to the parties that I would set aside the First-tier decision and rehear the appeal there and then.

The Substantive Re-hearing

14. The Sponsor attended and gave oral testimony. Asked to explain the gap between October 2012 when his G4S employment finished and October 2013 when his employment with Wilson James began he said he was looking for a job. Work at the Olympics had finished by October 2012 and he was on jobseeker's allowance. Before he began work at the Olympic site with G4S as a security officer he had been doing agency work at Bow Street. There was no gap he had been working with an agency. Asked in cross-examination whether he had any documentary evidence to prove this he said if he was allowed more time he could contact the job centre or otherwise look through his papers to find payslips. He did not know that the requirement was that he should go back over the last 5 years. It was put to him that point had been raised in the grounds of onward appeal but he said that he was not aware of it.

15. In closing submissions the Appellant's solicitor asked for further time for the Sponsor to look through his papers to obtain more information showing his working history. In reply the Presenting Officer indicated that if the Appellant could find acceptable evidence at the date of hearing she would qualify for a permanent residence card but as the evidence stood at present she did not. The Appellant's solicitor asked for a period of 14 days to look for the further information as the Sponsor was certain that he could gather the necessary evidence. The Appellant's solicitor accepted that the work record in the skeleton argument was incomplete. I therefore gave a direction that there was leave to the Appellant to file further evidence of the Sponsor's working history within 14 days, the Respondent to be entitled to comment thereon within 7 days of receipt of the evidence.

16. On 12th December 2016 the Appellant's solicitors wrote to the Tribunal with further evidence of the Sponsor's employment. This was received by the Tribunal on 15th of December 2016. A period of 7 days has elapsed since the further evidence would have been received by the Respondent but no comments in reply have been received from the Respondent. I proceed therefore on the basis that the respondent has no further submissions to make in this matter.

The Further Evidence

17. The further evidence supplied took the form of a witness statement of the Sponsor and a large bundle of unpaginated but original documentation mostly pay slips and correspondence with employers. The Sponsor had always been employed since he had arrived in United Kingdom save when he was claiming jobseeker's allowance. He had payslips that covered the period from 31st of March 2007 to 31 May 2007 from a company called NCP. His solicitors had asked for confirmation of the exact start and end dates for that employment. There was then a gap between 1 June 2007 and 24 September 2008 when the Sponsor began work with a company called ITS construction. Further information from them was awaited. There was then a gap between 25th of September 2008 and 17th of April 2011 when the Sponsor began work with a company called the Superior service but he had no documentation as to the end date of that employment.

18. That suggested a gap between 18th of April 2011 and 29th of May 2011 when he was employed by the Brook Street agency from 30th of May 2011 until 6th of January 2012. In fact a record from Premiere Employment Group Ltd (another agency) showed that the Appellant worked some days for them between 18th April 20111 and 16th July 2011. He worked throughout 2012 for G4S and was on jobseeker's allowance on 29th of January 2013 until 27th of October 2013 when he began work with Wilson James until 19th of September 2015. He was then again on jobseeker's allowance from 17th of August 2015 to 22nd of April 2016 when he went to work for Giant from 18 April 2016 to 29th of June 2016. He was on jobseeker's allowance from 28th of June 2016 until 18 October 2016 when he began work with SQR security solutions Ltd. He continues to be employed by that company.

19. Unfortunately the dates given in the Sponsor's statement do not match some of the original payslips and other documentation he provides. For example, the Sponsor states that he began work for the Superior service on 18th of April 2011 and that there was a gap undocumented between 25th of September 2008 and 17th of April 2011 before then. However, that is not borne out by the wage slips provided by the Sponsor which shows that he was working for the Superior service in March 2009 and there is a letter from the superior service company dated 6th of April 2009 confirming that the Sponsor had been working with them as a temporary warehouse operative since 25th of September 2008 until the date of that letter (addressed to whom it may concern). Quite why that letter was required is not explained but is perhaps irrelevant for the Tribunal's purposes. What is important is that contrary to what is said in the statement there are not in fact as many gaps as the statement would tend to suggest.

Findings

20. What I have to decide is a very narrow point, it is whether the Sponsor can show continuous exercise of treaty rights over a given 5 year period. If he can show that then the Appellant is entitled to be issued with a permanent residence card. The best 5 year period would appear to be from about the middle of 2011 until the middle of 2016. It is clear from the documentation now supplied by the Appellant that he has had a long working history in this country. I do not consider it speculation to find that gaps in the Sponsor's employment record before 2010 are most likely to relate to periods abroad for example when he was in Nigeria and met the Appellant. According to the Appellant's application for a permanent residence card she and the Sponsor met in Nigeria and they began living together in November 2007. Between 2009 and 2014 they lived together at the address in Grays Essex referred to by the Appellant (see paragraph 5 above). Given that history it is inevitable that the early years of the Sponsor's employment in this country should have gaps whether documented or otherwise. What I am concerned with is whether the Sponsor can show 5 years continuous employment for the period which I have suggested above. What is clear is that the Appellant worked in 2011 and 2012 for different employers. According to the Sponsor's statement there was a short gap of about a month over the Christmas period which could be explained by a short holiday. In the bundle is a payslip for Wilson James which shows that the Sponsor was employed for a month in December 2012. According to the Sponsor's statement he then went on to jobseeker's allowance for several months before working (for a second time) for Wilson James. It was the difficulty over the evidence for work at Wilson James that caused the Respondent to refuse the application in the first place. That evidence has now much improved.

21. What the Sponsor has now provided are payslips for January and February 2015 which show that he had already been working 10 or 11 months for that company by that time. There are further payslips and a letter from Wilson James dated 25th of November 2016 addressed to the Appellant's solicitors confirming that the Sponsor began work on 17 October 2013 and left that company on 15 September 2015. There then followed another period of receipt of jobseeker's allowance and further employment. I am satisfied therefore that there are no significant gaps in the employment history. The Sponsor can show that he was either working (which he did for most of the time) or in receipt of jobseeker's allowance (for a minority of the time) for a continuous period of 5 years such that he can satisfy the Regulations.

22. The main problem for the Sponsor according to the argument made to me at the hearing is that during 2013 relying upon the records of the Job Centre he received jobseeker's allowance for about 9 months from the end of January until October 2013. This runs up against regulation 6 (2A) which provides that a person who has ceased working may only retain worker status for a maximum of 6 months. The paragraph applies to someone who is in duly recorded involuntary unemployment after having been employed in the United Kingdom for less than one year. In this case the sponsor had been working for substantially more than one year when he was registered as a jobseeker for more than 6 months in 2013. I do not therefore regard the nine-month period in 2013 as breaking the 5 years continuous employment which the sponsor has to show.

23. It is to be regretted that the information has come out in such a piecemeal way but as the date of hearing is the relevant date for evidence, I consider that the Sponsor has now demonstrated a continuous period of 5 years employment. For different reasons therefore to those given by the Judge at first instance I am prepared to allow this appeal on the basis that the Sponsor is a qualified person who has been exercising treaty rights for the requisite period.

Notice of Decision

The decision at first instance involve the making of a material error of law and I have set it aside. I remake the decision by allowing the Appellant's appeal against the Respondent's decision to refuse to issue a permanent residence card to her.

Appellant's appeal allowed.

I make no anonymity order as there is no public policy reason for so doing.

Signed this 23rd day of December 2016

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Judge Woodcraft
Deputy Upper Tribunal Judge

TO THE RESPONDENT
FEE AWARD

The Judge at first instance made a fee award. That decision cannot stand since it was based on an incorrect application of the law. Subsequently the Sponsor has provided sufficient evidence to show that he had exercise treaty rights for the appropriate time but that evidence was not available to the Respondent at the date of decision. I therefore set aside the fee award made at first instance and make no fee award in this case.

Signed this 23rd day of December 2016

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Judge Woodcraft
Deputy Upper Tribunal Judge