Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/09041/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 February 2017
On 02 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE L J MURRAY

Between

Mr Daniel Nikoltchev
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No Representative
For the Respondent: Ms A Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of Bulgaria. His appeal was determined on the papers by First-tier Tribunal Judge Sweeney. In a decision which was promulgated on 3 October 2016 Judge Sweeney found that the Appellant was not entitled to a permanent residence card as he had not demonstrated that he was an EEA national who had resided in the UK in accordance with the Immigration (European Economic Area) Regulations 2006 (the Regulations) for a continuous period of five years.
2. The Appellant had in an application dated 7 March 2016 applied for a document certifying his permanent residence in the United Kingdom. In a decision letter dated 11 July 2016 the Secretary of State gave reasons for her conclusion that he had not demonstrated he was entitled to permanent residence, namely that he had not in accordance with Regulation 4(d)(ii) of the Regulations provided evidence of comprehensive sickness insurance in the United Kingdom and hence had not demonstrated he qualified as exercising treaty rights as a student. The Respondent confirmed in the refusal letter that the Appellant had been performing genuine and effective employment between 26 September 2014 and 26 February 2016 but concluded that this was not sufficient to demonstrate the required five year period.
3. Judge Sweeney considered the evidence and concluded that the Appellant had provided evidence in the form of a certificate from the National Health Insurance Fund in Bulgaria confirming that he had been insured between 1 August 2010 and 31 August 2014 and therefore did indeed possess the required sickness insurance.
4. At paragraph 26 of the decision the First-tier Tribunal Judge stated that the evidence adduced by the Appellant established he was a student for some three years and eight months up until 14 April 2014 and was employed for some seventeen months between September 2014 and February 2016. However, there was a gap between April 2014 and September 2014 when there was no evidence that the Appellant was either a student or employed. On the basis of that gap the First-tier Tribunal concluded that the Appellant had not established that he had been exercising treaty rights in the UK for a continuous period of five years whilst a student and employed.
5. The conclusion of the Judge was that the Respondent’s refusal of the Appellant’s application on the basis he did not have sickness insurance could not stand in the light of all the evidence subsequently adduced. However, the appeal was dismissed as the First-tier Tribunal found that the Appellant had not shown that he was a qualified person for the entire 5 year period. The Appellant sought permission to appeal against the decision of the First-tier Tribunal and permission was granted by First-tier Judge Bennett on 6 January 2017.
6. The grant of permission states that it was arguable that the Respondent had not raised the gap between April 2014 and September 2014 in the refusal and the judge therefore arguably erred in failing to give the Appellant the opportunity to deal with this point before dismissing the appeal on the papers.
7. The appeal therefore comes before the Upper Tribunal in order for it to be determined whether or not there is a material error of law. I heard from the Appellant, who was in person, and from the Respondent. It became apparent during the course of the hearing that the Respondent’s bundle was not in fact on the court file. The Appellant asserted before me that he had provided evidence of self-employment to the Respondent with his application in the form of 114 invoices and evidence from HMRC.
8. On checking her file Ms Brocklesby-Weller was able to inform me that according to the Respondent’s check list of documentation sent with the application the Appellant had indeed sent evidence of self-employment and although there was no list of the documents submitted she was also able to confirm that HMRC acknowledged that in the period from 2014 to 2015 the Appellant had been self-employed and had earned £16,000 from such employment. Accordingly she accepted on behalf of the Respondent that there was evidence of self-employment before the Respondent which had not been included in the Respondent’s bundle and was not indeed averred to in the refusal letter.
9. She also was happy to accept that this in fact amounted to an error of law although no fault is said to be laid at the foot of Judge Sweeney. In the case of E and R [2004] EWCA Civ 49 the Court of Appeal held that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in cooperating to achieve the correct result, and the court set out the ordinary requirements for a finding of unfairness, namely; there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the evidence or fact must have been established, in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisers) must not been have been responsible for the mistake and the mistake must have played a material although not necessarily decisive part in the judge’s reasoning.
10. I am satisfied in this case that there was a mistake of fact amounting to an error of law. The Appellant had, I am satisfied on the evidence before me, submitted invoices demonstrating that he was in fact self-employed over the period where he was found not to have demonstrated that he was exercising treaty rights between April 2014 and September 2014 and that that evidence was not in the Respondent’s bundle nor was it indeed referred to in the refusal letter. This may well be because it was not in issue and it may be that the Secretary of State accepted that evidence but that was not in itself clear from the refusal letter.
11. In any event, I find that for the reasons given that amounted to an error of law and I proceed to remake the decision on the basis of the evidence before me. That evidence consists of the invoices over the requisite period submitted by the Appellant showing that he had billed work as a translator over that period and an acceptance on behalf of the Secretary of State that he was indeed earning money as a self-employed individual in translation services on the basis of the HMRC evidence.
12. Accordingly I am satisfied to the required standard of proof, which is the balance of probabilities, that the Appellant was a qualified person throughout the period in question, firstly, as the First-tier Tribunal found, as a student and then as an employed person as was accepted by the Secretary of State and in the interim gap between April 2014 and September 2014 as a self-employed individual.
13. The appeal therefore falls to be allowed.

Notice of Decision
The decision of the First-tier Tribunal involved the making of a material error of law and I set it aside. I re-make the decision in the appeal by allowing it.
No anonymity direction is made.

Signed Dated 26 February 2017

Deputy Upper Tribunal Judge L J Murray