Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/03094/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 10 March 2017
On 13 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

MUHAMMAD ALI
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Saleem a Solicitor from Malik and Malik Solicitors
For the Respondent: Mr Diwnycz a Senior Home Office Presenting Officer

DECISION AND REASONS

Background

1. The Respondent refused the Appellant’s application for a Permanent Residence Card on 13 November 2015. His appeal against that was dismissed by First-tier Tribunal Judge Hillis (“the Judge”) following a hearing on 28 June 2016.
2. First-tier Tribunal Judge Bird granted permission to appeal (30 December 2016). She said it is arguable that the Judge failed to consider whether or not the Appellant and his wife (Ms Eva Palajova) had lived together for 5 years as required, and may have applied too high a standard of proof in requiring corroboration of the documents that had been submitted in that regard.
3. I point out here that the grounds seeking permission to appeal were unhelpful as they only said that the “… Judge had failed to consider all the relevant evidence …”
4. Judge Bird made no mention of the second basis for the Judge’s refusal, namely Ms Palajova’s failure to show that she had been exercising EEA Treaty Rights for 5 years. Having heard arguments, I agreed with Mr Saleem that I should allow him to argue this as well given Ferrer (limited appeal grounds; Alvi) [2012] UKUT 00304 (IAC). That was because there was no explicit refusal of permission regarding that point and otherwise the appeal would be entirely academic as even if he succeeded in persuading me that the Judge had materially erred on the matter on which permission had been granted, the appeal would still stand to be dismissed due the additional finding by the Judge.
5. The Respondent filed a rule 24 notice (16 January 2017) saying, in essence, that the Judge had directed himself appropriately, properly found that Ms Palajova had not been exercising treat rights for 5 years, and was entitled to conclude they were not in a genuine relationship. Mr Diwnycz’s oral submissions did not expand on this.
The relationship
6. The couple both stated [19] that they lived together from 8 April 2008 to 30 April 2015. The Judge was concerned regarding conflicting evidence as to whether they lived alone after 2010 as stated by the Appellant, or whether Mr and Mrs Zeb lived with them for around 1 or 2 years in 2012 to 2013, and whether Ms Palajova’s sister lived with them from time to time after 2010 as stated by Ms Palajova [20]. He noted the written evidence from their landlord which conflicted with theirs regarding whether they had married prior to April 2010 [22]. He noted the various tenancy agreements [23]. All this led him to conclude the couple lived together from 16 June 2010 to January 2015 [24]. He noted the utility bills [25] and bank statements [26]. He noted the discrepancy between the couple as to who left the property they shared on 30 April 2015 as they each said that they were the one who left and the other remained [27].
7. For all these reasons, he found that they had not established on balance that they had lived together in a genuine and subsisting family relationship for the 5 years required under The Immigration (European Economic Area) Regulations 2006 and, in particular, Regulation 15 (1) (b) [29].
8. Regulations 15 (1) (b) states (my underlining) that “the following persons shall acquire the right to reside in the United Kingdom permanently –
(a) …;
(b) A family member of an EEA national … who has resided in the United Kingdom with the EEA national in accordance with these regulations for a continuous period of five years …”
9. It was asserted by Mr Saleem that the Regulations are clarified in Diatta (C-267/84) in that the couple do not have to live together providing they stay related, and the EEA national continues to exercise treaty rights. This is confirmed in PM (EEA – spouse – “residing with”) Turkey [2011] UKUT 89 (IAC). In light of this, it is clear to me that the Judge erred on that point in requiring evidence of cohabitation for 5 years. It was not however material to the outcome as will be seen.
The Sponsor exercising EEA Treaty Rights
10. The Judge noted sight of PMP Recruitment Ltd payslips [31], and an HMRC letter from 2010 [33]. He also noted the P45 from Osmandthorpe Convenience Store showed Ms Palajova left employment there on 30 November 2013 which was significantly before she registered her Eva Cleaning Services self-employment on 1 September 2014 [34]. The P60’s identified her working below the tax threshold for the years 2011, 2012, and 2013, and the payslips for that period were incomplete and did not cover the required 5 year period [36].
11. For all these reasons, he found that the Appellant had not established on balance that Ms Palajova had been exercising EEA Treaty Rights for the 5 years required [37].
12. Mr Saleem produced a draft statement from Ms Palajova stating that she was employed at Osmondthorpe Convenience Store beyond November 2013 until August 2014. He confirmed to me that this statement was not relevant to whether there was a material error of law as the Judge cannot have erred in not taking into account a statement that had not been produced to him. I asked him to show me the document that showed there was evidence before the Judge of her employment or self-employment in the period November 2013 to 31 August 2014. He pointed me to various documents that fell outside that period and eventually conceded that there were none that fell within it.
13. Given the inevitable concession eventually made by Mr Saleem, it was clear to me that the Judge did not materially err in relation to whether Ms Palajova had been exercising EEA Treaty Rights for the 5 year period required given the evidential lacuna for that 10 month period.
Other matters
14. Mr Saleem sought to argue, in addition to the above that the Judge materially erred in considering documentation prior to 2010 [33]. I dismissed this argument as the Judge considered documents Mr Saleem’s firm had submitted and was entitled, and indeed obliged, to consider them. They did not form the basis of his separate consideration of the 5 year period that was then being focussed on. Indeed, if irrelevant documents had been submitted by Mr Saleem’s firm, the fault was theirs.
15. It was also submitted that the Judge materially erred in not asking Ms Palajova to give evidence regarding the evidential lacuna. There was no merit in that argument as the Appellant was represented by Mr Saleem’s firm, they had submitted the documents they presumably thought were most appropriate, and he was represented by Counsel at the hearing who, having read the refusal letter was fully aware of the issues that needed addressing. If, as was the case, there were gaps in the evidence, it was for them to explain them and not for the Judge to fish for evidence.
16. As there was no material error of law regarding whether Ms Palajova had been exercising EEA Treaty Rights for 5 years, it was inappropriate to proceed to consider whether the Appellant fulfilled the 5 year residence test as the appeal would still be dismissed.

Conclusion on error of law

17. I am not therefore satisfied that the Judge made a material error of law.

Decision:

The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

I do not set aside the decision.

Deputy Upper Tribunal Judge Saffer
13 March 2017