Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number:
EA/03019/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision & Reasons Promulgated
On: 24 January 2017
On: 25 January 2017

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

AZMAT BIBI
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

For the Appellant: Mr Gill (Gill Law Chambers)
For the Respondent: Mr Diwnycz (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. The appellant has appealed against a decision of the First-tier Tribunal dated 3 August 2016 in which it dismissed an appeal against the decision of the respondent dated 18 November 2015 refusing a residence card. The respondent did not accept that the appellant had provided sufficient evidence to support her claim that her husband ('the sponsor'), a Dutch national, had been working on a self-employed basis, as a taxi driver since 2009.

Procedural history

2. The First-tier Tribunal concluded that there was a paucity of reliable evidence to support the sponsor's claim to have been a self-employed taxi driver and dismissed the appeal.

3. In a decision dated 10 November 2016 First-tier Tribunal Judge Keane granted permission to appeal on the basis, inter alia, that the First-tier Tribunal failed to arrive at sufficiently comprehensive findings of fact.

Error of law

4. At the hearing before me both representatives agreed that the only issue in dispute before the First-tier Tribunal was whether or not the appellant had discharged the burden of demonstrating that it was more likely than not that her husband was a self-employed taxi driver. Mr Gill focused his attention on the failure to address HMRC documentation confirming that the sponsor owed and paid national insurance contributions as a self-employed person from 9 August 2009 to 28 March 2015.

5. Mr Diwnycz acknowledged that the First-tier Tribunal made no reference to the national insurance documentation but submitted that adequate findings had been made regarding the other evidence.

6. In failing to address and / or give reasons for rejecting the national insurance documentation, the First-tier Tribunal has materially erred in law. This documentation came from an official source and is detailed: it includes the quarterly contribution bills from August 2009 to March 2015. In addition, each bill contains a post office stamp indicating that it has been paid. The original bills were available to the First-tier Tribunal. This significant evidence should have been addressed directly, but it was not. Mr Diwnycz accepted that paragraph 6 of the decision does not address the national insurance documentation, only the HMRC documentation relevant to income tax.

Remaking the decision

7. Both representatives agreed that the appeal turned on a single issue and that little oral evidence was necessary because much turned on an analysis of the documentary evidence. Both representatives therefore agreed that the decision should be remade by me.

8. Mr Diwnycz indicated that there was no need to cross-examine the appellant and only cross-examined the sponsor. After hearing from the sponsor I heard submissions from both representatives. Mr Diwnycz accepted that the evidence tended to indicate that the appellant is a self-employed taxi driver.

9. After hearing from both representatives I announced that I accept that the sponsor was exercising Treaty rights as a self-employed taxi driver from 2009 and continues to do so. I now give my reasons for reaching this decision.

10. Having heard the sponsor give evidence, I find that he has provided credible, straightforward evidence. He was asked questions regarding his work as a taxi driver and was able to provide cogent and detailed responses. Mr Diwnycz did not take me to any inconsistencies or implausibilities in the sponsor's evidence, and did not dispute the genuineness of the sponsor's self-employment.

11. The sponsor's evidence is supported by an array of documentary evidence. That evidence is by no means perfect and there are obvious gaps in the evidence but it is sufficient, when viewed alongside the sponsor's oral evidence, to support my finding that it is more likely than not that the sponsor has been working as a self-employed taxi driver from 2009.

12. I accept that the sponsor was paid in cash and paid for his expenses (including his taxi licence, vehicle rental, accountants, petrol) in cash. His self employment has been almost entirely cash-based. This explains the lack of bank statements. I also accept that the sponsor earned below the minimum threshold to pay income tax and as such his accounts were prepared on a very basic level. This accounts for the failure to include the licence fee in the profit and loss accounts. The sponsor has clearly been the holder of a Hackney Carriage Driver Licence from Tameside Metropolitan Borough for the years 2009-2015 inclusive. There is detailed and cogent documentation from Tameside to support this. This must be viewed together with the basic accounts prepared by non-chartered accountants, the tax credits paid to the family, the HMRC income tax returns and the national insurance documentation as set out above.

13. When all the evidence is viewed in the round, I am satisfied the sponsor has been self-employed from 2009-15 as claimed, and continues to be self-employed. This was the sole issue in dispute before me. Mr Diwnycz accepted that that if I reached this finding, it followed that the appellant's appeal should be allowed.

Decision

14. The decision of the First-tier Tribunal contains an error of law and is set aside.

15. I remake the decision by allowing the appeal under the 2006 EEA Regulations.

Signed: Ms Melanie Plimmer Dated: 24 January 2017
Judge of the Upper Tribunal