Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/03004/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15th December 2016
On 05th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD

Between

DR EMEKA HENRY NWANONYIRI
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: In person
For the Respondent: Mr P Duffy, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of Nigeria who appealed against the decision of the Respondent dated 26th February 2016 refusing his application for a residence card as the former spouse of an EEA national (Ms Ramata Sy).
2. His appeal was heard and dismissed by Judge Manyarara under the EEA Regulations on the basis that the judge was not satisfied that the Appellant's former spouse was exercising treaty rights at the time that the decree absolute was pronounced. The judge noted that the Appellant had chosen not to have an oral hearing, noting that the only documentation relating to his former EEA spouse's employment had already been considered by the Respondent in the refusal decision.
3. The grounds of application were lodged on the basis that the required evidence was in existence and it is said by the Appellant "I have been able to secure my former spouse's July payslip" which proves that she was in fact exercising treaty rights at the material date.
4. The grounds of application were initially refused on the basis that the judge could not be faulted for not considering evidence that the Appellant had not submitted with the application. The grounds were renewed to the Upper Tribunal it being noted by Upper Tribunal Judge Rimington that new evidence could not be taken into account unless it was before the judge and would not unsettle the decision. Nevertheless it is said it was arguable that the judge gave only limited reasoning as to why the evidence was deemed insufficient.
5. A Rule 24 notice was lodged by the Secretary of State stating that the grounds were a simple disagreement with the findings of the judge and it was clear at paragraphs 15 and 16 that the judge was observing that despite being put on notice in the issue the Appellant had not provided the relevant evidence.
6. Thus the appeal came before me on the above date. At that time there were two further small bundles from the Appellant. In a letter dated 1st December 2016 he gives the reason why the July payslip for his former spouse was not submitted to the First-tier Tribunal.
7. Before me the Appellant confirmed that this document had been missing before the First-tier Tribunal and that he had elected to have his appeal heard on the papers.
8. Mr Duffy relied on the Rule 24 notice.
9. I reserved my decision.
Conclusions
10. It is not disputed that the July payslip was a crucial document in the judge's assessment of whether or not the Appellant's former spouse was working as at the date of divorce. It is accepted by the Appellant that this document was not before the judge at the First-tier Tribunal. Given his absence the judge was, at the least, entitled to proceed in the manner he did, namely by concluding that, in its absence, the Appellant had not proved his former spouse was exercising treaty rights at the material time.
11. There is therefore no error of law in the judge's decision which must stand.
12. The remedy for the Appellant is to lodge a fresh application particularly now that he does appear to have the necessary documentation to prove his case. However, in relation to the present proceedings, there is no error of law in the judge's decision.
Notice of Decision
13. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
14. I do not set aside the decision.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge J G Macdonald

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge J G Macdonald