Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/06382/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 March 2017
On 18 April 2017

Before

UPPER TRIBUNAL JUDGE WARR

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

Vanessa Petarnella
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant: Mr C Avery, Home Office Presenting Officer
For the Respondent: In person

DECISION AND REASONS

1. This is the appeal of the Secretary of State but I will refer to the original appellant, a citizen of Brazil born on 15 February 1979 as the appellant herein.
2. The appellant first applied for an EEA residence card on 27 July 2005. This expired on 20 September 2010. She made a further application for a residence card in July 2010 and this was issued on 24 November 2010, expiring on 24 November 2015. However a further application made on 21 October 2015 was refused on 11 April 2016, giving rise to the appeal proceedings herein.

3. The appellant’s husband is a citizen of Italy. He is self-employed. The respondent did not accept that sufficient evidence had been provided about his current economic activity in the United Kingdom and it was not accepted that he was currently economically active as a self-employed person.

4. The First-tier Judge noted that the appellant had supplied additional documentation including NatWest Foundation account bank statements in the name of her husband covering the period during 2015 to April 2016. She had also provided a copy of his tax return for 2015/16 that showed him described as a personal trainer with a gross turnover of £22,154 with a net profit of £11,413. The judge gave his reasons for allowing the appeal as follows:

“8. The bank statements are helpfully annotated with notes on what most of the outward transactions represented, and include payments for gym rent, clothing, internet, gym equipment, petrol and amounts to a personal account. There are also numerous payments into the account from numerous names, each with reference numbers, some referring to the number of fitness sessions that the payments covered and most containing the reference “PT” which I take to stand for Personal Training.

9. Whilst there may be other documents that a self-employed personal trainer might be able to provide to support the application, such as invoices, orders, advertising, contracts with customers etc., I accept on balance of probability that the Appellant has done enough to persuade me that her Sponsor is self-employed. The transactions on the statements are entirely typical of what would be expected in relation to a small personal training business. There were no other grounds of refusal. Accordingly, I accept that the Sponsor is economically active in the UK and therefore exercising treaty rights.”

5. Accordingly the judge allowed the appeal. The Secretary of State appealed the decision on the basis that following Sala (EFM: right of appeal) [2016] UKUT 411 (IAC) the First-tier Tribunal had no jurisdiction to determine the appellant’s appeal. No point was taken on the First-tier Judge’s actual assessment. Permission to appeal was granted by the First-tier Tribunal on 30 January 2017 on this point.

6. At the hearing before me Mr Avery acknowledged that the grounds were based on a mistake. The appellant was married to the sponsor. They were family members and the case of Sala did not apply to them. He accepted that the grounds did not disclose an arguable error of law and was content for me so to hold.
7. I explained matters to the appellant and her husband.

8. The case of Sala has no application to this case since it concerns the position of an extended family member rather than family members-husband and wife. It is unfortunate that the couple have had this matter hanging over their heads and it is to be hoped that the further residence card can be issued as soon as possible in the circumstances.

9. The appeal of the Secretary of State is dismissed and the decision of the First-tier Judge to allow the appeal is confirmed.

10. The First-tier Judge made no anonymity order and I make none. The First-tier Judge made no fee award and I make none.

No anonymity direction is made.

No Fee Award is made.

Signed Date 11 April 2017

G Warr, Judge of the Upper Tribunal