Tribunal decisions

The decision

St

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/05208/2016

THE IMMIGRATION ACTS

At Field House
Decision and Reasons Promulgated
on 24th January 2017
on 28th February 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

MR. ZDRAVKO PERCHINKOV
(ANONYMITY DIRECTION NOT MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: M. J. Solomon and Partners (Green Lanes) - Not present
For the Respondent: Mr S. Whitwell, Presenting Officer.

DECISION AND REASONS
Introduction
1. Although it is the respondent who is appealing in these proceedings for convenience I will continue to refer to the parties as they were in the First-tier Tribunal.
2. The appellant is a national of Bulgaria born on the 8th May 1983. He registered with a Jobcentre. On the 24th March 2016 he was issued with a national insurance number.
3. On 15 April 2016 the respondent decided to remove him on the basis he was not exercising Treaty rights.
4. The appellant elected for an appeal on the papers. His appeal was heard by Judge of the First-tier Tribunal Fitzgibbon QC on 25 July 2016. In the decision the judge recorded that the appellant had not made a witness statement but had provided grounds of appeal (unsigned) in which he asserted he was a qualified person, namely, a worker, within the meaning of regulation 6(1)(b) of the Immigration (EEA)Regulations 2006 (the 2006 regulations ). No details were given as to his occupation or how he was exercising Treaty rights and no additional evidence was submitted save for the letter from the Job Centre allocating a national insurance number and his Bulgarian identity card.
5. The judge concluded at paragraph 4 by stating:
There is no sufficient evidence for the appellant to discharge the burden of proving, on the balance of probabilities, that he was exercising treaty rights as he claims. The issuing of a national insurance is not evidence of that, as the letter states on its face.
6. At paragraph 5 under the heading `Decision’ the judge stated: `For these reasons, the appeal is allowed.’
The Upper Tribunal
7. The respondent sought permission to appeal given that from the content of the decision, particularly at paragraph 3, the judge meant to dismiss the appeal. It was suggested that the Tribunal set aside the decision and remake it, dismissing the appeal under rule 32 (1) and 32 (2) (d) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) rules. This provision provides for the setting aside of a decision and its remaking where there has been a procedural irregularity in the proceedings. In the alternative, it was contended that the decision is inadequately reasoned and therefore there is a material error of law.
8. The respondent requested an oral hearing. There has been no appearance by the appellant or his representative. I note that on the 3 January 2014 the appellant and his named representative where advised of the hearing date. The Tribunal Procedure (Upper Tribunal) Rules 2008 provides that the tribunal may proceed in a party’s absence where they have been notified of the hearing and it is in the interests of justice to proceed with the hearing. In the absence of any explanation for the appellant's absence I have decided to proceed.
9. Mr. Whitwell relied upon the grounds on which leave was sought. He suggested that the decision be set aside and remade and dismissed. Alternatively, the decision could be corrected under the slip rule. Finally, he stated that the appellant appeared have left the United Kingdom and as such abandoned his appeal. I was provided with a document dated 20 April 2016 whereby the appellant indicated he was willing to depart to Bulgaria that day. Attached to this is an extract from an airline ticket confirming his flight from London Heathrow to Sofia on 20 April 2016. I note this is a return flight was a return to Heathrow scheduled for 27 April 2016.
Consideration
10. The tenor of the decision of First-tier Tribunal Fitzgibbon QC suggests an intention to dismiss the appeal and the final reference to the appeal being allowed was a slip and is meant to read `dismissed ‘. I am cautious however about applying the slip provisions in the circumstance. This is because to make what is an apparent correction fundamentally alters the outcome of the decision. I bear in mind the guidance in Katsonga ("Slip Rule"; FtT's general powers) [2016] UKUT 00228 (IAC) that the 'Slip Rule' at rule 31 of the First-tier Tribunal Procedure Rules, cannot be used to reverse the effect of a decision.
11. It is also my view that the decision cannot be set aside because there is no evidence of any procedural irregularity.
12. On the face of it the decision lacks reasoning in relation to the outcome and this is a material error of law. On this basis I set the decision aside and remake it.
13. It is established that the appellant is a European national from his identity card. It is also known that he was allocated a national insurance number on the 24th March 2016 following a recent application. There is no confirmation as to when he arrived in the United Kingdom although he states it was 14 February 2016.
14. The Immigration (European Economic Area) Regulations 2016 now consolidates the Immigration (European Economic Area) Regulations 2006 but for the purpose of these proceedings make o material difference. There is an initial right to reside in United Kingdom for a period not exceeding three months. Thereafter, there is an extended right of residence to a qualified person. Qualified persons are defined in regulation 6 as including workers and jobseekers. A jobseeker includes someone who enters the United Kingdom to seek employment.
15. The appellant states that subsequent to 24 March 2016 he secured employment in a car wash. He states on 15 April 2016 he was interviewed by representatives of the respondent and on the same day a decision was taken to remove him. The reasons advanced are that he was not considered to be a person exercising Treaty rights and has not provided evidence of this.
16. The evidence, save for the appellant apparently leaving the United Kingdom, is unchanged from that before the First-tier tribunal. There is the allocation of the national insurance number and the appellant's identity card and the undersigned grounds of appeal. It is for the appellant to show he is exercising Treaty rights. He has not demonstrated when he arrived in United Kingdom or what he has been doing since. Consequently, I find his removal is justified under 19 (3)(a).

Decision.
The decision of First-tier Tribunal allowing the appeal contains a material error of law and is set aside.
I remake the decision dismissing the appeal of Mr Perchinkov.

Deputy Upper Tribunal Judge Farrelly.