Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ea/04978/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 December 2016
On 16 January 2017

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

HASEEB USMAN
(Anonymity direction not made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Abbas Counsel, instructed by Imperium Group
For the Respondent: Mr S Staunton, Home Office Presenting Officer
DECISION AND REASONS
1. This is an appeal against the decision of the First-tier Tribunal Judge dismissing on the papers an appeal against the decision of the Secretary of State refusing the applicant a residence card as the wife of a Polish national exercising treaty rights in the United Kingdom.
2. The appellant's core case is extremely simple. He is a citizen of Pakistan; his wife is a citizen of Poland; his wife, he says, is a photographer who is trying to establish herself in the United Kingdom and earning a modest income which he has evidenced in the required way and does not really understand why his application has been refused.
3. The First-tier Tribunal Judge has clearly modelled her decision on the decision of the Secretary of State. There is nothing wrong with that; the Secretary of State is capable of making perfectly good decisions and very often does and there is no reason for a judge to take a different approach just to prove that she can. However Mr Abbas says that the judge erred because she did not seem to appreciate that core elements of the case were proved in the way they were because that is what the Secretary of State asks people to do.
4. In particular the proof of self-employment was done by producing the unique tax reference number which ought to have been enough, in accordance with policy, to show that the person was indeed registered with the Revenue and the incomes produced were, if I may say so respectfully, modest but more than the minimum requirement when it was remembered that it represented some months' trading but not a complete twelve-months' trading.
5. Now there are other points that concerned the judge and the Secretary of State and they are that there was little evidence about business development and so on. Mr Abbas, in his submissions to me, used the phrase "considering it in the round" and it is very important that that approach is adopted in EU cases where EEA nationals are exercising treaty rights. It is not in any way inherently unbelievable that a person with modest earning capacity at least at this stage in their career as a photographer chooses to do that in the United Kingdom The evidence is that a modest income is being earned but it is sufficient income to satisfy the Rules. Unless there was some reason to suspect dishonest, which is not the case here, the absence of other strands of evidence should not matter very much when the points required by a policy are covered.
6. I am satisfied the First-tier Tribunal Judge did not give proper weight to items of evidence which satisfied the policy requirements and did not look at the case in the round in the way that is appropriate for an application of this kind. I set aside the decision of the First-tier Tribunal and I substitute a decision allowing the appellant's appeal.
7. I want to add a rider on this. At paragraph 22 of her determination the First-tier Tribunal judge was clearly looking to the future and being critical of the appellant making that application just to satisfy the requirements of the Rules. It may well be the case that the appellant and his wife have every intention of leaving the United Kingdom and exercising their treaty rights elsewhere in the European Union. That is no reason at all to disbelieve their evidence. I therefore have made the decision that I have.
Decision
The First-tier Tribunal erred in law. I set aside its decision and substitute a decision allowing the appeal.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 13 January 2017