Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/07996/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 January 2017
On 13 January 2017

Before

Deputy Upper Tribunal Judge Pickup

Between

Delwin Dacalos Adenic
[No anonymity direction made]
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the appellant: In person, not represented
For the respondent: Mr P Armstrong, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, Delwin Dacalos Adenic, date of birth 5.11.75, is a citizen of the Philippines.
2. This is his appeal against the decision of First-tier Tribunal Judge Handley promulgated 12.9.16, dismissing his appeal against the decision of the Secretary of State, dated 30.6.16, to refuse his application made on 30.1.16 for an EEA Permanent Residence Card.
3. The Judge heard the appeal on 30.8.16.
4. First-tier Tribunal Judge Woodcraft granted permission to appeal on 8.11.16.
5. Thus the matter came before me on 13.1.17 as an appeal in the Upper Tribunal.
Error of Law
6. In the first instance I have to determine whether or not there was an error of law in the making of the decision of the First-tier Tribunal such that the decision of Judge Handley should be set aside.
7. The application made to the Secretary of State for an EEA Permanent Residence Card, pursuant to regulation 15(1)(b) of the Immigration (EEA) Regulations 2006, as amended, was on the basis that the appellant was the third-country family member of an EEA national exercising Treaty rights in the UK, namely Ms Michelle Margaret Blass, a German national.
8. The appellant alleged that the EEA sponsor had been working in the UK since 2007. The appellant claims to have arrived himself in the UK in 2010.
9. As is clear from the decision of the Secretary of State, the appellant's application was refused because it is alleged he failed to provide sufficient evidence that his EEA sponsor had been exercising Treaty rights in the UK for a continuous period of 5 years, and also because he failed to submit sufficient evidence to demonstrate that he had resided in the UK for a continuous period of 5 years.
10. The appeal was decided in the First-tier Tribunal on the papers. The First-tier Tribunal Judge thus had only those documents within the case file on which to decide the appeal.
11. Judge Handley noted at [5] of the decision that he had taken account of the documents in the respondent's bundle and a bundle of documents from the appellant. At [13] and again at [16] he noted that further documents had been submitted with the Notice of Appeal. At [16] the judge observed that none of the further documents, which are there listed, supported the claim that the sponsor had been exercising Treaty rights in the UK for a continuous period of 5 years. At [17] the judge noted that various HMRC documents relating to both the appellant and the sponsor covered the periods 2008/2009, 2010, 2011 and 2012, but did not show that either of them had been residing in the UK for a continuous period of 5 years.
12. At [19] the judge concluded that the appellant failed to properly address the issues detailed in the refusal decision and had not shown that the sponsor had been exercising Treaty rights in the UK for a continuous period of 5 years.
13. The handwritten grounds of application for permission to appeal to the Upper Tribunal assert that documents were submitted to the First-tier Tribunal covering the whole period of the sponsor's employment since 2007. In particular, it is asserted that there are P45 and P60 HMRC documents covering the sponsor's employment in the period 2013 to 2015, and documents covering the appellant's employment between 2013 and 2016, as well as council tax documents covering the period 2012 to 2016. The appellant also stated that he has a 10-year-old son for whom they have been receiving child benefits and who has attended Northgate Primary School since 2009.
14. In granting permission to appeal, Judge Woodcraft noted that the onward grounds of appeal enclose further documents which were not before the First-tier Tribunal Judge, "but also argue that more documents were sent to the Tribunal than recorded by the judge at paragraph 17 of the determination. The extra documents not taken into account are said to fill in the gaps to show 5 years continuous working."
15. Judge Woodcraft continued, "A perusal of the file appears to show that this latter contention may be correct. Whilst it would not be an arguable error for the Judge to fail to take into account documents that were not before him, it is arguably an error to fail to take into account documents that were before him. As these documents might have made a difference to the outcome I grant permission to appeal on all grounds. It may be a good idea for the appellant to send copies of all of these documents to the respondent before the error of law hearing in the Upper Tribunal to see whether there is a measure of agreement between the parties in the case."
16. The Rule 24 reply of the Secretary of State, dated 30.12.16, states that the outcome of the appeal can only be resolved with reference to the Tribunal's file in order to ascertain what documents were served on the First-tier Tribunal.
17. I have carefully examined the case file and find that there is a loose, unpaginated and unindexed bundle of documents, containing various HMRC employment and tax documents. Whilst it is difficult to assess, because of the disorganised way in which the bundle is organised, I accept that there is evidence showing employment of the sponsor covering a period of at least 5 years preceding the date of application, i.e. back to 2011.
18. However, the documents that relate to the appellant's presence in the UK remain insufficient. There are council tax demands, dated 26.10.12, 2.3.13, 20.8.14, 29.9.15, and 27.2.16, which names both of them. There are also P60 and P45 documents for the appellant covering the tax years ending 2013, 2014, 2015, and 2016, and various leaving work dates within those years. However, whilst there are tax credit awards to Ms Blass for the period 27.1.11 to 4.5.12, which name the appellant, these do not demonstrate the appellant was actually present and resident in the UK at those times. I do not see any documents covering the appellant's residence in the UK in the period between 2011 and 2012 so as to demonstrate a continuous period of residence of five years preceding the application made in January 2016.
19. In assessing whether there was an error in the making of the decision of the First-tier Tribunal, I cannot take account of documents submitted subsequently to the decision, some of which are mentioned and listed in the application for permission to appeal.
20. In oral evidence and submissions Mr Adenic accepted that there was no employment records for him from 2011 and 2012. He stated that it was because the business closed down and they have been unable to obtain the records. However, that explanation cannot be taken into account in this error of law decision.
21. It follows from the above that whilst Mr Adenic may have been in the UK since 2010, as claimed, the evidence put before the First-tier Tribunal failed to demonstrate that and thus even if the First-tier Tribunal Judge was in error in relation to the evidence of the sponsor's employment and even if there was sufficient evidence to show she had been exercising Treaty rights for a full and continuous 5 year period, the appeal still fails because of insufficient evidence to show that Mr Adenic has resided in the UK for a continuous 5 year period.
22. The appellant may well be able to make a further application addressing the issues set out above. It would also be helpful if the documentation was better marshalled, with a paginated bundle and index.
Conclusions:
23. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law such that the decision should be set aside.
I do not set aside the decision.
The decision of the First-tier Tribunal stands and the appeal remains dismissed.

Signed

Deputy Upper Tribunal Judge Pickup

Dated 9 June 2021

Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order pursuant to rule 13(1) of the Tribunal Procedure Rules 2014.
Given the circumstances, I make no anonymity order.

Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award pursuant to section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007.
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: The appeal to the Upper Tribunal has been dismissed and the appeal in the First-tier Tribunal was also dismissed.

Signed

Deputy Upper Tribunal Judge Pickup

Dated 9 June 2021