Tribunal decisions

The decision

(Immigration and Asylum Chamber)
Upper Tribunal Appeal Number: EA/02669/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 21 October 2016
On 24 October 2016

Before

Upper Tribunal Judge Southern

Between

JOSE ALBERTO FICHMAN GOES
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Did not appear and was not represented
For the Respondent: Mr S. Walker, Senior Home Office Presenting Officer

DECISION

1. On 12 June 2015 the appellant, who is a citizen of Brazil, applied for a residence card confirming a permanent right of residence as the family member of Ms [BZ], an Italian national said to have been exercising Treaty rights in the United Kingdom for a continuous period of five years. The application was refused, by a decision made on 5 November 2015, because the applicant had not provided evidence that the EEA national concerned had been employed for a continuous period of five years. The respondent said:

"In order for permanent residence to be granted we require proof in the form of employer letters, P60's, wage slips etc to demonstrate that your EEA sponsor has been exercising treaty rights for five continuous years."

2. The appellant's appeal against that refusal came before First-tier Tribunal Judge Keith who determined it on the papers on 14 March 2016. At paragraph 12 the judge neatly summarised the issue to be addressed:

"The respondent does not take any issue with the appellant's continuous residence (or any break in it) for the purposes of his right to claim permanent residence as a family member. The respondent also takes no issue about the fact that the appellant and the sponsor have been married for the continuous period, or that the marriage is genuine. The sole issue is whether the sponsor has exercised her treaty rights continuously for the five-year period upto the present date."

3. The judge then carried out an examination of the evidence offered of the sponsor's employment for the five-year period with which we are concerned. There were pay slips and P60s for the whole period save a period of some nine months between April 2013 and January 2014. In respect of that period, although no payslips were produced, the applicant had provided a letter from the sponsor's employers which said:

"This letter confirms that the above mentioned was employed at The London Marriott Hotel Grosvenor Square, London, W1K 6JP.

She was employed by Marriott International from 1 April 2010 until 8th January 2014. Her last job title was Guest Relations Supervisor.

If you require any more information please feel free to contact me on 0207 514 1521."

This letter, on headed notepaper from Marriot Hotels Limited, was signed by Ms Sarah Moss, Human Resources Manager.

4. The judge dismissed the appeal because he did not accept that this letter constituted sufficient evidence that the sponsor was in fact in employment, as stated by that letter, during the nine-month period in respect of which pay slips had not been produced. He said:

"I noted that the absence of these records has not been explained, when the documents should be readily available and I attach less weight to the letter from Marriott Hotels as a consequence. In summary, I find that the sponsor has not been continuously employed for a relevant period from 2010 until 2015, on the basis of the 9-month gap between April 2013 and January 2014 and there is insufficient evidence that she has registered as a job seeker in the intervening gap."

5. It is simply impossible to sustain that reasoning. The appellant had produced evidence of a type precisely indicated by the respondent to be sufficient, that being a letter from the sponsor's employer. There was no reason at all to doubt the truth of the content of that letter. It appeared from the refusal letter that this evidence would have been acceptable as sufficient had it been produced to the decision maker. Pays slips and P60's are not specified documents, required in order to establish the fact of employment. Therefore, it was not reasonably open to the judge to dismiss the appeal on the basis that evidence of a type the respondent had said would be sufficient was not sufficient if relied upon at appeal.

6. For the respondent, Mr Walker indicated, realistically, that he did not feel able to defend the decision and made no attempt to do so.

7. For these reasons, I am satisfied that the conclusion reached by the judge was one that was not reasonably open to him on the evidence. The only rational conclusion open on the evidence was that the appellant had discharged the burden of proof facing him in establishing that the sponsor had indeed been continuously employed throughout the requisite period. This means that the judge has made a material error of law and his decision to dismiss the appeal is set aside. I substitute a fresh decision to allow the appeal.

Summary of decision:

8. First-tier Tribunal Judge Keith made a material error of law error of law and his decision, promulgated on 4 April 2016 shall be set aside.

9. I substitute a fresh decision to allow the appeal
Signed

Upper Tribunal Judge Southern

Date: 21 October 2016