Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/03237/2015

THE IMMIGRATION ACTS

Heard at: Liverpool
Decision Promulgated
On: 4th April 2017
On: 10th April 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Ezeh Frank Onwuegbusi
(no anonymity direction made)
Appellant
And

Secretary of State for the Home Department
Respondent

For the Appellant: Mr B. Adewusi, Crown & Law Solicitors
For the Respondent: Mr A. McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Nigeria date of birth 9th November 1974. He appeals with permission1 the decision of the First-tier Tribunal (Judge Caswell) to dismiss his appeal with reference to Regulation 10(5) of the Immigration (European Economic Area) Regulations 2006.

2. The Appellant has lived in this country for a number of years. In 2008 he married a Slovakian woman and they lived together until 2012. The marriage was lawfully dissolved on the 2nd March 2015. On the 26th June 2015 the Appellant made an application on a form ‘EEA(PR)’ asserting retained rights of residence. His application was refused on the 20th November 2015 inter alia because he had failed to provide evidence that his wife had been economically active in the UK for a continuous period of five years. On appeal the First-tier Tribunal had accepted that she had been exercising treaty rights at the date of the divorce, but was unable to find, due to lack of evidence, that she had been doing so for the preceding five years. The Tribunal found that this was a legal requirement for the Appellant to be granted permanent residence in these circumstances, and the appeal was dismissed.

3. The grounds as drafted argued that this approach was wrong in law but before me Mr Adewusi was content to abandon this argument. Instead he relied on his second ground: that when the Appellant had submitted his application he had made it clear that it was couched in the alternative. Although he did seek permanent residence, if this was not available to him he was nevertheless entitled to confirmation of a right of residence on the basis of his retained rights.

4. Mr McVeety accepted that on the unchallenged findings of fact made by the Tribunal, this second ground was made out. The covering letter that had accompanied the ‘EEA(PR)’ form submitted by the Appellant had indeed been drafted in the manner contended by Mr Adewusi:

“the attached application is based on the fact that our client was married to an EEA worker and spent over 5 years in the UK as a worker exercising treaty rights which qualify him for settlement or in the alternative – retained rights status in the UK”

(emphasis in the original)

5. The Respondent had considered this but declined to issue a card on the basis that there was insufficient evidence that the Appellant’s ex-wife had been exercising treaty rights at the date of decision. The First-tier Tribunal had reviewed that evidence and found the burden discharged. The Tribunal recognises as much at paragraph 14 of the determination: “I find there is force in this argument”. The Tribunal goes on to disregard that finding on the basis that the appeal before it was limited to whether the Appellant qualified for recognition of his right to remain in the UK permanently. Mr McVeety accepted that this was not so. Apart from the fact that this was an EEA appeal (and so any finding would simply be declaratory), this was a matter squarely put by the Appellant in his application, and considered by the Respondent in her refusal letter.

6. It follows that the appeal before me is allowed. The error of law was failing to address the alternative argument. The Respondent accepts that on the basis of that alternative argument, and the finding that the Appellant’s wife was exercising treaty rights at the date of their divorce, the Appellant’s retained right to residence should be confirmed.

Decisions

7. The determination of the First-tier Tribunal contains an error of law such that it should be set aside.

8. The Appellant is entitled to confirmation of his retained rights of residence and the appeal is allowed to that extent.

9. There is no order for anonymity.

Upper Tribunal Judge Bruce
5th April 2017