Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/04085/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 February 2017
On 28 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

RAMON BENJAMIN ROSSI
(ANONYMITY DIRECTION not made)
Appellant
and

the Secretary of State for the home department
Respondent

Representation:
For the Appellant: Mr R. Roberts, Legal Representative, Cromwell Wilkes
For the Respondent: Mr S. Whitwell, 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 Russell sitting at Taylor House on 16 May 2016) dismissing his appeal against the decision by the Secretary of State to refuse to issue him with a residence card. The Tribunal found that the appellant’s wife was not currently a qualified person under Regulation 6 and also that the appellant did not meet the requirements of Regulation 15(1)(b), namely that he was the family member of an EEA national who has resided in the United Kingdom in accordance with the Regulations for a continuous period of five years. 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.
The Reasons for the Grant of Permission to Appeal
2. On 16 December 2016 UTJ Martin granted permission to appeal for the following reasons:
It is arguable, as asserted in the grounds, that the Appellant’s wife has permanent residence in the UK and the Judge was wrong to state that she only acquires permanent residence on application. It is arguable that the Appellant was entitled to succeed on the basis of Regulation 15(1)(b).
Discussion
3. In a carefully crafted decision, the Judge gave adequate reasons for finding that the appellant’s wife had not returned to work after the birth of her first child on 14 October 2012, but had taken further time out from employment, including to have a second child; and that her employment in the past few years had been on such a small scale as to be regarded as marginal and ancillary to her life and economic circumstances. So she was not a qualified person under Regulation 6.
4. In order to qualify for a permanent residence card in accordance with Regulation 15, the appellant needed to identify a five year period during which his wife had been continuously exercising treaty rights. But the five year period did not need to run up to the date of the hearing or to the date of decision or to the date of application. The Judge held at paragraph [23] that the appellant’s wife may have been eligible for permanent residence by 2013:
Nonetheless, the appellant has mistakenly assumed automaticity and it is clear from the Regulations that the appellant’s wife needs to make an application for Permanent Residence and there is no evidence that she has done so.
The Judge went on hold that her continuity of residence as a qualified person had been interrupted and so she was not now entitled to permanent residence.
5. In so ruling, the Judge made a material misdirection. Once a right of permanent residence has been accrued, it cannot be lost. The appellant’s wife did not need to keep working in order to retain a right of permanent residence which she had previously acquired through five years’ continuous activity as a worker. She also did not need to apply for a residence card in order for the right to crystallise. An EEA residence card is merely confirmatory of an EEA right enjoyed by the person to whom the card is issued. The card is not the mechanism by which the right is conferred.
The Remaking of the Decision
6. As the judge did not make an unequivocal finding on the question whether the appellant’s wife had in fact worked continuously for five years up to 2013, I adjourned the hearing briefly so that Mr Whitwell could consider the relevant documentary evidence.
7. On the resumption of the hearing, he conceded that the evidence was compelling. Firstly, the wife’s P60s for the tax years ending April 2008, 2009, 2010, 2011 and 2012 showed substantial earnings in every year, never lower than about £17,500, which is consistent with the wife being a worker throughout the five year period ending April 2012, which was six months before the birth of her first child. Secondly, a British passport was issued to the first child on 17 March 2013. As Mr Whitwell acknowledged, the Home Office would not have issued the child with a British passport if the Home Office did not accept that the child’s mother enjoyed the equivalent status of a person with ILR. In order to have that equivalent status, she must have been regarded as a permanent resident under the Regulations 2006.
8. So the appellant has discharged the burden of proving that he qualifies for the issue of a permanent residence card under Regulation 15(1)(b).

Notice of Decision
The decision of the First-tier Tribunal contained an error of law, and accordingly the decision is set aside and the following decision is substituted: the appellant’s appeal is allowed under Regulation 15.
No anonymity direction is made.

TO THE RESPONDENT
FEE AWARD
In the light of my decision to re-make the decision in the appeal by allowing it, I have considered whether to make a fee award.
I have decided to make no fee award.
Reasons:
The appellant had to bring forward additional evidence to succeed in his appeal as the refusal decision was directed at the question of whether his wife was currently exercising treaty rights as a worker. The application does not appear to have put on the ground on which the appellant has ultimately succeeded.

Signed Date

Deputy Upper Tribunal Judge Monson