Tribunal decisions

The decision

IAC-FH-LW-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/04121/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 February 2017
On 03 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

oleh Strotskyy
(no ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr E Cole, Counsel
For the Respondent: Ms A Fijiwala, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the appellant against a decision of the First-tier Tribunal (Judge Agnew) dismissing his appeal against the respondent’s decision of 31 March 2016 refusing him a permanent residence card as an EEA family member.

Background
2. The appellant is a citizen of Ukraine born on 24 August 1987. He is married to Mrs Samohvala, a citizen of Latvia born on 6 March 1990. On 21 October 2015 he applied for a residence card as confirmation of a right to reside in the UK as the family member of his wife on the basis that she had been exercising treaty rights for a continuous period of five years in the UK. However, for the reasons set out in the respondent’s decision letter of 31 March 2016 the respondent was not satisfied that the evidence produced in support of the application showed that this was the case.
3. The appellant appealed to the First-tier Tribunal and his appeal was decided without a hearing on the basis of the documentary evidence submitted. The judge found that the evidence was not sufficient to show that the appellant had been continuously working in a self-employed capacity from 15 May 2009 until 1 August 2015 as claimed, but she was satisfied that from 1 August 2015 she had been working as a receptionist. The appeal was dismissed.
4. In the grounds of appeal it is argued that the judge erred in law by applying too high a standard of proof in the light of evidence from HMRC, erred on the question of the burden of proof when it had been open to the respondent to verify the documents relied on, and finally, that having found the appellant was married to a person who at the time of the hearing was exercising treaty rights, the appellant should in any event have been granted a residence card.
5. Permission to appeal was refused by the First-tier Tribunal but granted by the Upper Tribunal. Subsequently, an application was made for an adjournment of this hearing because the appellant’s wife had been granted a permanent right of residence in the UK by a decision dated 31 August 2016 on the basis that she had been exercising her treaty rights for a continuous period of five years as a qualified person under reg. 15(1)(b). The family circumstances had also changed in that the appellant and his wife had a child born on 8 September 2016, a son, Daniel, who is a British national as the appellant’s wife had acquired permanent residence prior to his birth. The application for the adjournment was refused on the basis that this hearing would provide an opportunity for considering how the appeal should proceed.
6. At the hearing before me Ms Fijiwala indicated that the respondent had considered the position and was prepared to concede that the First-tier Tribunal had erred in law and that the decision should be re-made and allowed.
7. I am satisfied that the First-tier Tribunal erred in law in particular by failing to deal with the question of whether the appellant who, at the date of hearing was married to a person who was exercising treaty rights as an employed person, would in any event be entitled to a residence card. I therefore set aside the decision. It is conceded by the respondent that in the light of the evidence submitted in support of the application that the appellant is able to show that his wife has been working for a continuous period of five years. In these circumstances, he is entitled to a permanent residence card.

Decision
8. The First-tier Tribunal erred in law and the decision is set aside. By consent the decision is re-made and allowed on the basis that the appellant has shown that he is entitled to a permanent residence card as his wife has been exercising treaty rights continuously for a period of five years. No anonymity direction was made by the First-tier Tribunal.

Signed H J E Latter Date: 2 March 2017

Deputy Upper Tribunal Judge Latter