Tribunal decisions

The decision

IAC-FH-WYL-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: EA/03681/2015
EA/03683/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 November 2016
On 30th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

NKECHI [E]
[P E]
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr R O Ojukotola, The Law Crest
For the Respondent: Mr S Staunton, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the appellants against a decision of the First-tier Tribunal (Judge Cope) dismissing their appeal against the respondent's decision made on 30 November 2015 refusing their applications for permanent residence cards.

Background
2. The appellants are citizens of Nigeria born on 7 May 1970 and 18 October 2006 respectively. The first appellant is the mother of the second appellant and they are the wife and stepson of Kingsley [E], their sponsor, a German citizen who has been exercising treaty rights in the UK.
3. On 15 July 2010 the appellants were issued with EEA residence cards as the family members of their sponsor, valid until 15 July 2015. They applied for permanent residence cards on 9 July 2015. In order to qualify for the right to reside in the UK permanently as family members of an EEA national they had to show that they had resided in the UK with the EEA national in accordance with the Regulations for a continuous period of five years: reg 15(1)(b) of the Immigration (European Economic Area) Regulations 2006 (the Regulations). For the reasons given in the respondent's decision letter of 30 November 2015, she was not satisfied that the appellants were able to meet this requirement. Amongst the documents submitted in support of the application were P60s for the years 2010-2011, 2011-2012, 2012-2013 and 2013-2014 and 2014-2015 and wage slips dated from August 2014 to June 2015 and tax returns from 2012-2013.
4. It was the respondent's view that P60s alone were not sufficient in proving the sponsor's employment for the entire year as the total income for the year could reflect less than twelve months' work. Bank statements submitted dated 2010 to 2015 failed to show income received from the sponsor's employers and in these circumstances the respondent expected to see further evidence to support employment such as wage slips, employer's letters, etc. Further, it was stated that the sponsor was self-employed throughout 2012-2013 and this was evidenced by a tax return for that period but that document alone was not sufficient in proving that he was self-employed throughout that period. It was the respondent's conclusion that the appellants had failed to provide sufficient evidence to demonstrate that the sponsor had been exercising treaty rights in the UK for a continuous period of five years whilst employed or self-employed and accordingly the application was refused.
5. The appellants appealed against this decision arguing in substance in the grounds that the sponsor had completed five years as mandated by the Regulations and the respondent's decision was irrational and breached the appellants' rights as family members of an EEA national. The grounds further assert that the finding that the sponsor had not completed five years as required was without logic as the tax returns certificate issued by the HMRC was evidence of exercising and residing in the UK at the relevant periods. The appellants opted to have the appeal decided without a hearing and further documentary evidence was submitted in support.
The Findings of the First-tier Tribunal
6. The judge noted that there was no issue that the appellants were non-EEA nationals whereas the sponsor was an EEA national, a citizen of Germany. The respondent had not suggested that the appellants did not meet the other requirements for the issue of an EEA permanent residence card save for a failure to show that the sponsor had resided in the UK in accordance with the EEA Regulations for the requisite five year period.
7. The judge rejected a submission that the only year of contention relating to when the sponsor was exercising treaty rights was 2012-2013, the year when it was said he was self-employed. This was a misunderstanding of what the respondent actually said. She had not been satisfied with the evidence of self-employment in the tax year 2012-2013 or with the evidence relating to the employment during the other relevant tax years. The respondent's view was that there was a lack of evidence to show that the sponsor had been continuously working or otherwise exercising treaty rights in the tax years involved as opposed to being employed for the discrete periods during those tax years.
8. The judge reviewed the evidence in paras 36-46 and concluded as follows:
"47. In the absence of documentary evidence or satisfactory explanation for the periods which are not covered by the documents which have been supplied, whilst it is a possibility I do not consider that it has been shown to be more likely than not that Mr [E] has in fact exercised treaty rights for a continuous period of five years as required by the EEA Regulations whether through employment or self-employment or being a jobseeker.
48. I furthermore note that there is no evidence before me to show that [the sponsor] has in fact exercised treaty rights here for any earlier five year period which might give rise to the Appellants being able to obtain EEA permanent residence cards."
Accordingly, the appeal was dismissed.
The Grounds and Submissions
9. In the grounds of appeal it is argued that the production of P60s was evidence of economic activity and it was not open to the judge to insist upon evidence not required by the Regulations. Secondly, it is argued that the qualifying period in the present case was continuous residence from the date of marriage for the following five years i.e. from 2010 to 2015 and that the judge had acknowledged in his decision that P60s were provided to cover continuous work and residence in the UK and that the issue of a P60 was confirmation of continuous employment and evidence that the EEA national was engaged in economic activity for the qualifying period. Thirdly, it is argued that five years' P60s supported by the tax records from HMRC covering the qualifying period were sufficient evidence as required under the Directives as evidence of five years' continuous residence.
10. Permission was granted on the basis that it was arguable that the judge had erred in rejecting the P60s as evidence of being economically active and that five years' P60s supported by tax records from the HMRC covering the qualifying period were arguably sufficient evidence.
11. Mr Ojukotola adopted the grounds in his submissions arguing that the evidence in the P60s together with the letter from HMRC dated 10 December 2015 was sufficient evidence of continuous employment. He referred to the Tribunal decisions in Begum (EEA - worker -jobseeker) Pakistan [2011] UKUT 00275 and Idezuna (EEA - permanent residence) Nigeria [2011] UKUT 474. He asked rhetorically what kind of further evidence the judge could reasonably expect to be produced in addition to the evidence already produced. It had been shown that the sponsor was exercising treaty rights for five years as required. There was evidence that he had been in paid employment and self-employment. He referred to para 6 of Begum, submitting that work could be temporary or permanent and that the right to residence as a worker was not subject to any condition relating to the type of employment or to the amount of income derived from it. He submitted that the judge had been wrong implicitly to impose the kind of requirements set out in Appendix FM-SE of HC395 of producing specific evidence in support of the application. The evidence produced supported, so he argued, a finding that the sponsor had been in paid employment throughout the relevant five year period.
12. Mr Staunton submitted that Idezuna and Begum did not cast any light on the issues in the present appeal which was whether five years' continuous activity as a qualified person had been established. The judge had identified and explained why he was not satisfied that it had been shown that the sponsor had been exercising treaty rights for a continuous period of five years. By way of example, in [37] the judge, having been through the 94 pages of the National Westminster bank statements submitted, was satisfied that the respondent had been correct to say that these statements did not show evidence of the sponsor, as opposed to the first appellant, receiving payments from employment into that bank account and certainly not from any of the employers mentioned in the HMRC letter and in [39], although there were various cash deposits into the National Westminster account, there was no identification of the source of those funds and, in the absence of any supporting documentary evidence or evidence from the first appellant or the sponsor to say exactly what the sources were, the judge was unable to assume that they related to the sponsor's employment. The judge took the view that the aggregated P60 forms alone could not show continuous working for the purposes of reg 15 of the Regulations. He submitted that the judge had reached a decision properly open to him on the evidence and the grounds relied on to challenge the decision did not disclose any error of law on his part.
Assessment of the Issues
13. I must consider whether the judge erred in law such that his decision should be set aside. The issue at the heart of this appeal is whether the P60s taken with the letter from HMRC setting out the record of the sponsor's employment together with the other evidence produced were sufficient to establish that the sponsor had been exercising treaty rights for a continuous period of five years.
14. The judge took into account the letter from HMRC describing it in [36] as particularly useful because it identified the sponsor's employments during the tax years 2010-2015 showing employment with Polyguard Security Services Ltd and subsequently with Cascade Care Ltd and London Cyrenians Housing Ltd. I am satisfied that the judge was entitled to take the view that the P60s only showed that a person had been economically active through employment upon which they had paid income tax in a particular tax year but it did not identify when or for how long during that tax year the employment had taken place. He was entitled to find that the aggregated P60s alone could not show continuous working for the purposes of reg 15 [40]. In such circumstances further evidence of employment was needed to show that the sponsor was in fact exercising treaty rights for the relevant continuous period as opposed to working intermittently. As the judge pointed out, the respondent in the refusal letter put the appellants on notice of this but they had not responded [41].
15. The judge turned to the issue of self-employment during 2012-2013 acknowledging the existence of the financial statement accounts prepared by accountants but on an unaudited basis which meant that the accountants had relied on information given by the sponsor rather than having audited that information [43]. The judge commented that no supporting documentation such as invoices or receipts had been provided for the sponsor's self-employment. The explanation given was that when the sponsor and appellants had moved house those documents were lost. The judge said that that may well be so but the unfortunate consequence was that there was no supporting evidence to show self-employment beyond the submission of a tax return which in any event showed no income tax paid [44]. In the judge's view the appellants' difficulties were compounded by the fact that the National Westminster bank statements did not show any payments made into the account as a result of the sponsor's self-employment.
16. I am not satisfied that the production of the P60s, the letter from the HMRC together with the other documents produced in evidence were such that they by themselves established continuous exercise of treaty rights. There may well be cases when such documentation will do so but that depends on the facts of each case. It was for the judge to decide what inferences could properly be drawn from the documents relied on by the appellants. He has explained clearly why he was not satisfied that the documents produced established on a balance of probabilities that the requirements of the Regulations had been met.
17. This is not a case where the judge sought to impose requirements not set out in the Regulations. The decisions in Idezuna and Begum do not take the matter any further. The issue was whether the sponsor had been residing in accordance with the Regulations for a continuous period of five years. It was for the appellants to establish that the requirements of the Regulations were met and they failed to do so for the reasons the judge gave after a careful analysis of the evidence. In summary, I am satisfied that the judge reached findings properly open to him on the evidence. The grounds and submissions do not satisfy me that he erred in law.

Decision

18. The First-tier Tribunal did not err in law and accordingly its decision stands. No anonymity direction was made.

Signed H J E Latter Date: 28 November 2016

Deputy Upper Tribunal Judge Latter