Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/03243/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 12 April 2017
On 21 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

mr arif munir
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr E. Mahmood, Legal Representative
For the Respondent: Mr P. Duffy, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appeals to the Upper Tribunal from the decision of the First-tier Tribunal (Judge Burnett sitting at Newport on 19 May 2016) dismissing his appeal against the decision by the Secretary of State to refuse to issue him with a residence card as confirmation of his right to reside in the UK as the spouse of an EEA national exercising treaty rights here. The First-tier Tribunal did not make an anonymity direction, and I do not consider that the appellant requires anonymity for these proceedings in the Upper Tribunal.
Relevant Background
2. The appellant made the application on 14 August 2015 and it was refused on 25 February 2016. The application was refused under Regulation 6 of the Immigration (EEA) Regulations 2006 as amended (the 2006 Regulations).
3. He had submitted a P60 for his spouse showing that she had earned £1,600 in the tax year ending April 2015 from employment with XXX Compression Ltd which she was supposed to have commenced on 5 November 2014. But the credit entries in the bank statements did not correlate with the amount shown in the P60, and she should have earned more if she was continuously employed from 5 November 2014. So it was not accepted that the documents he had provided were genuine.
4. The address where his spouse was supposed to work was a domestic dwelling. Two companies had been run from this address. One of these had been dissolved, and the other, XXX Compression Ltd, had a net worth of £278. So it was not credible that the company could afford to pay his spouse £783.68 each month.
5. His previous application for a residence card had been refused on the same basis, and his appeal had been dismissed by the First-tier Tribunal on 2 May 2015.
The Decision of the First-tier Tribunal
6. The appellant asked for his appeal to be decided on the papers. Judge Burnett noted that the appellant had provided additional documentary evidence by way of appeal. He stated his findings at paragraphs [17] to [25] of his subsequent decision. Having reviewed the evidence, he concluded at paragraph [24] that, although XXX Compression Ltd might be a legitimate trading company, it had not been shown that the sponsor was employed by the company and working as claimed. This was because there were unexplained discrepancies in the documents provided. At paragraph [25] he observed that the appellant had chosen a paper – not oral – hearing and so he had taken the risk that the documents he had produced would not survive appropriate judicial scrutiny. The respondent had raised concerns as to the documents provided, and the further documents did not meet the concerns raised.
The Application for Permission to Appeal
7. The appellant sought permission to appeal on the ground that there were reasonable explanations for the discrepancies, such as the sponsor having another job at the same time and the sponsor being mistakenly credited with an extra payment by the company in the month of February 2015 due to an administrative error. The Judge had erred in failing to specify that the burden rested with the respondent and that the evidence had to be sufficiently cogent and strong.

The Initial Refusal for Permission
8. On 28 November 2016 Judge Caroline Andrew refused permission for the following reasons:
What the Grounds seek to do is to explain now why there are discrepancies…in the documents that were before [the Judge]. The Grounds do not disclose any arguable error of law.
The Eventual Grant of Permission
9. Following a renewed application for permission, on 24 February 2017 Upper Tribunal Judge Storey granted permission for the following reasons:
It is arguable that the judge proceeded on the false premise that to be employed for the purpose for the Directive and the UK Regulations the appellant’s spouse needed to be continuously employed rather than simply someone who was mainly working and in between still connected to the labour market.
Discussion
10. Mr Mahmood submits that the Judge focused unduly on minor discrepancies in the documentation which he accepts cast doubt on the sponsor’s precise level of earnings and/or the precise period in the tax year ending April 2015 when there was a break in her employment. He submits that on a holistic appraisal of the evidence these minor discrepancies did not justify a finding that the sponsor had not been working for XXX Compression Ltd at all.
11. Although not cited to me, I have had regard to Muse & Others v Entry Clearance Officer [2012] EWCA Civ 10 on challenges to the adequacy of a judge’s reasons. In South Bucks District Council v Porter (2) [2004] UKHL 33, cited with approval by the Court of Appeal at paragraph [33], Lord Brown said:
The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision maker erred in law, for example, by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need only refer to the main issues in the dispute, not to every material consideration.
12. In Barry v London Borough of Southwark [2008] EWCA Civ 1440 the Court said:
A person might be a worker even if he works for less than the minimum wage and even if he works only part-time. The motives of the person for working in a particular member state were irrelevant. However, the services which she provides must be real and actual and not marginal or subsidiary.
13. The Court of Appeal went on to hold that two weeks of work in a six month period was sufficient to render the appellant in that case a worker for the purposes of an entitlement to housing benefits.
14. I do not consider that the Judge’s line of reasoning discloses a lack of understanding of the principle illuminated in Barry. The judge correctly identified the issue as being whether the appellant had provided sufficient evidence to show that his sponsor was exercising treaty rights. He came to the clear conclusion that the appellant had not discharged the burden of proof on this issue. He did not find against the appellant on the ground that his spouse was earning less than £783.68 per month. He found against the appellant on the ground that he had not shown she was in employment at all.
15. Contrary to what is argued in the permission application, the burden of proof always rested with the appellant. The respondent did not have to prove that the documents relied on by him were false. The appellant had to satisfy the Tribunal that the documents which he had produced to show that his spouse was employed by XXX Compression Ltd were genuine and reliable.
16. The Judge gave adequate reasons for finding that the documents were not reliable and hence the appellant had not discharged the burden of proof.
17. There is no merit in the argument that the discrepancies identified by the Judge were minor, and therefore they should have been ignored. It was open to the Judge to proceed on the premise that, if the claimed employment was genuine, the information in the P60 for the tax year to April 2015 would tally with (a) the disclosed payslips and (b) the disclosed bank statements. It does not, as Mr Mahmood concedes. It was open to the Judge to find that the additional evidence provided by way of appeal did not address the concerns raised in the refusal decision. In a letter dated 23 July 2015, the managing director had said that the spouse had been employed since 5 November 2014 as a stock manager on a full-time permanent contract, working 34 hours per week. In a subsequent letter dated 2 May 2016, the managing director said that she had stopped working after a couple of days and had been paid out of petty cash, and she had recommenced employment in February 2015. As the judge held, there was no explanation in this second letter as to why the previous letter from him represented – falsely - that the spouse had been in continuous employment with the company since 5 November 2014.
18. The explanations given in the permission application for the other anomalies identified by the Judge (slight variations in NIC and tax contributions which are unexplained, the sponsor ostensibly earning nearly as much as the managing director, the bank statement evidence contradicting the managing director’s new claim that she had recommenced employment in February 2015) are all ones which did not feature in the evidence which was placed before the First-tier Tribunal. So the Judge did not err in not taking them into account.
19. Although the appellant had produced a continuous run of payslips up to April 2016, the last bank statement evidencing money going into the sponsor’s bank account from the company was a July 2015 statement, as the Judge noted at paragraph [18].

Notice of Decision

The decision of the First-tier Tribunal did not contain an error of law, and accordingly the decision stands. This appeal to the Upper Tribunal is dismissed.

Anonymity
The First-tier Tribunal did not make an anonymity order.

Signed Date 19 April 2017

Deputy Upper Tribunal Judge Monson