Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/05043/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 December 2016
On 18 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MANDALIA

Between

Jimmy Noceda
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms L Appiah, Counsel, instructed by Vine Court Chambers
For the Respondent: Ms J Isherwood, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal against a decision and reasons by First-tier Tribunal Judge Henderson promulgated on 14 July 2016, in which she dismissed an appeal against a decision made by the Secretary of State on 19th April 2016 to refuse the appellant's application for a permanent residence card as the family member of an EEA national in accordance with the Immigration (European Economic Area) Regulations 2006.
2. The respondent's decision of 19th April 2016 noted that the appellant had not provided sufficient evidence that both the appellant and his EEA sponsor resided in the UK in accordance with the Regulations for a continuous five year period.
3. The findings of the Judge are to be found at paragraphs [7] to [10] of her decision. The Judge found at paragraph [7] of her decision that the appellant had provided evidence of his employment in the United Kingdom between 5th April 2011 and April 2016. She notes that the appellant has provided evidence that he has been working and living in this country for at least 5 years.
4. At paragraph [8] of her decision, the Judge turned to the information about the appellant's EEA sponsor, his father. The evidence that there was about the sponsor before the Tribunal is set out at paragraph [8] of the decision.
5. At paragraph 9 of the decision the Judge states:
"The first issue is providing evidence that the Appellant's father has been here as a "Qualified Person" for five years. The difficulty with this application is that the Appellant does not appear to fully understand the evidential requirement in showing that his sponsor has been resident in the United Kingdom exercising treaty rights for a continuous period of five years. The evidence of his employment is only provided for a limited time period from 2005 - 2008 and there is a gap until the tax year to 5th April 2015. It is not a continuous record."
6. Ms Appiah did not have in the papers before her, copies of the documents that were before the First-tier Tribunal Judge and in particular, the documents relating to the appellant's sponsor. I have given her an opportunity at the commencement of the hearing before me to have a look through the documents that were before the First-tier Tribunal Judge. Ms Appiah was able to satisfy herself that the documents that were before the Judge, have clearly and accurately been recorded at paragraph [8] of her decision.
7. The appellant appeals on the ground that the Judge, in reaching her finding at paragraph [9], failed to have regard to the wage slips and contract of employment that were before her. Permission to appeal was granted by First-tier Tribunal Judge Pedro on 15th November 2016.
8. The Judge found at paragraph [9] of her decision that the evidence of the appellant's sponsor's employment is only provided for a limited time period between 2005 and 2008, with a gap then unitil the tax year to 5th April 2015. That on the face of it, fails to take account of the contract for employment as a caretaker dated 26 April 2013, and the wage slips of 28th September 2013 and 28th September 2014, that the Judge refers to in paragraph [8].
9. It seems that there was evidence before the First-tier Tribunal Judge of the appellant's sponsor having been employed since May 2013 onwards. The terms and conditions under which the sponsor was employed, are set out in a letter dated 26th April 2013. That letter states that the first day of employment will be 22nd May 2013 and that is the date upon which the sponsor's period of continuous employment is deemed to have commenced. That in itself does not assist the appellant, because what he has to establish is that his sponsor has been continuously employed in the UK for a continuous period of five years. Even taking account of the letter from the sponsor's employer, there remains a gap in the evidence between 2008 and May 2013. It follows that even if the Judge erred in failing to take account of the letter from the sponsor's employer in reaching her decision at paragraph [9], that failure is not material to the outcome of the appeal.
10. Ms Appiah, rightly in my judgment, accepts that there is still that gap in the evidence between 2008 and 2013 to establish that the appellant's sponsor resided in the UK exercising treaty rights for a continuous period of five years in accordance with the Regulations. In those circumstances, as I say, although the Judge does not refer to the evidence of the sponsor's employment since April 2013 in paragraph [9] of her decision, that ommission is immaterial to the outcome of the appeal. On any view, the evidence before the Judge was such that the appellant could not establish that his sponsor had resided in the UK exercising treaty rights for a continuous period of five years in accordance with the Regulations.
11. It follows that the appeal is dismissed.

Notice of Decision

The appeal is dismissed.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Mandalia

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Mandalia