Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/04057/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 November 2016
On 14 December 2016
Extempore

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

ms doris awulah-mensah
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Mr T Melvin, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Kempton promulgated on 1 July 2016 dismissing her appeal under the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations") against the decision of the Secretary of State to refuse her application for a residence card as a confirmation of her right to reside in the United Kingdom on a permanent basis.
2. The appellant's case is that she was married to a Belgian national, that marriage having taken place in 2009 by proxy; that she resided in the United Kingdom from 25 July 2011; that her husband had been at all relevant times either exercising treaty rights through being a worker or on the basis that his residence was lawful having acquired the permanent right of residence by operation of law; and, that accordingly she was entitled to ta residence card as confirmation of her permanent right of residence.
3. The respondent refused the application on a number of grounds. The Secretary of State was not satisfied by the documentary evidence shown that:
(i) The appellant was validly divorced;
(ii) The appellant had been working post the date of divorce, as required by reg. 10 (6); or
(iii) The appellant's husband had been exercising treaty rights.
4. It was noted also in the refusal that when she had arrived in the United Kingdom on 26 July 2015 that the husband had been living in Belgium for the last five years.
5. The appellant did not elect to have an oral hearing and the matter was dealt with on the papers which included a number of documents submitted to the First-tier Tribunal subsequent to the decision. These include P60s for the appellant's former husband, copies of the birth certificate of her child and the marriage and divorce certificates issued in Ghana. In addition, the appellant also adduced a number of wage slips for herself. The judge noted that there were difficulties with the documentation, in particular it was unclear where they were living. The judge noted that the appellant had produced:
(i) Photocopy P60s for her husband covering the tax years from 5 April 2012 until 5 April 2015.
(ii) Weekly payslips for herself for the months of March to April 2016, there being no P60 for her from either of her employers.
(iii) Evidence of employment for the ex-husband up to and including 5 April 2015.
6. The judge concluded that there was no evidence of the husband exercising treaty rights for the first year for a five year period up until 5 March 2011, there being no P60 for that tax year, and that there was insufficient evidence to show that he had been exercising treaty rights for the full five year period required.
7. The judge also concluded that the appellant had not demonstrated she had been working from the date of divorce 18 August 2015 until February 2016. The judge concluded that the appellant did not meet the requirements of Regulations 15(1)(f), 10(5) or 10(6) and it was open to her to make a fresh application.
8. The appellant sought permission to appeal on the grounds that the judge:
(i) Had failed to note that the ex-husband had acquired permanent residence in the United Kingdom.
(ii) Had ignored the length of the marriage and had erred in not concluding that the requirements to show that she had retained rights of residence had been met.
(iii) Had erred in concluding that the appellant had not demonstrated that she was currently working.
(iv) The judge had acted unfairly in noting that she had not provided original documents on the basis that they had been retained by the respondent. The same applying to the wage slips which were supplied by email and had in that case been verified.
9. Permission to appeal was granted by First-tier Tribunal Judge Astle on 20 October 2016, the judge noting that Judge Kempton may have applied an incorrect test in deciding the appeal as basically whether in this case the appellant's husband should be considered as being an EEA national with permanent residence.
10. When the matter came before me there was no appearance from the appellant nor was there any explanation for her failure to attend. I am satisfied from the court file that due notice of the time, date and venue of the hearing was sent to the appellant at the address most recently given by her. I deferred the consideration of the matter until after 11.30 by which point there was still no appearance by the appellant. In all the circumstances of the case I am satisfied that it was appropriate for me to proceed to determine the appeal in her absence.
11. In order to acquire a permanent right of residence in the United Kingdom the appellant needs to have shown that she had lived here and that her husband had lived here for a period of five years continuously. It is clear from Regulation 15 that she needs to show that her husband was here lawfully under the Regulations. It is of course open to her to show that he was here lawfully either because he was exercising treaty rights and was thus a qualified person or that for all or some of the relevant five-year period he had acquired a permanent right of residence.
12. The appellant in this case submits that her husband had indeed acquired a permanent right of residence and that the judge had erred in that respect. It is unclear from the documentation that the husband had in fact acquired a permanent right of residence. The residence card certificate produced for him does not state that, contrary to how it is described. Whilst of course that is merely declaratory of the matter it is equally the case that the evidence in this case does not establish that the husband had acquired a permanent right of residence.
13. Further, even if the husband had acquired a permanent right of residence that does not assist the appellant. That is because on her own account she entered the United Kingdom on 25 July 2011. It is necessary for her to show that she had been resident in the United Kingdom for a five-year period which in this case would end on 25 July 2016.
14. Even if the husband had acquired a permanent right of residence prior to the divorce, the appellant does not meet the five years' residence requirement set out in reg. 15 as she could not on any view have been resident for a five-year period as the family member of an EEA national on any basis as the divorce was in 2015. In order to show a five-year period of lawful residence, she would have to show that she met the requirements of Regulation 10(6) in the period after the date of the divorce, that is but for the fact that she is not an EEA national she would nonetheless be a qualified person.
15. In this case whilst I accept that the judge may have erred in not considering the possibility of the husband meeting the requirement of lawful residence through having acquired permanent residence that error is incapable of affecting the outcome because even if he had had permanent residence the appellant was not resident for five years whilst he was married to her. She ceased to be a family member of an EEA national on 18 August 2015, the date of her divorce.
16. Having considered the material produced whilst it is correct that the judge may have erred in putting to one side the evidence of the appellant only of being employed on the basis that it was a photocopy I am not satisfied even taking these documents at full face value that they established that the appellant did indeed meet the requirements of Regulation 10(6) of the EEA Regulations. On that basis the appeal could not possibly have succeeded as there is simply insufficient evidence to show that the appellant met the requirement of Regulation 10(6) for the period following the divorce which became final on 18 August 2015.
17. It follows therefore that despite the apparent error the decision of the First-tier Tribunal did not involve the making of an error of law capable of affecting the outcome and accordingly I uphold the decision.

SUMMARY OF CONCLUSIONS
1. The decision of the First-tier Tribunal did not involve the making of an error of law and I uphold it

Signed Date: 13 December 2016

Upper Tribunal Judge Rintoul