Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/09048/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 January 2017
On 13 March 2017

Before
DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

Between
SERGIY BORACHOK
(ANONYMITY ORDER NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Mold, Counsel
For the Respondent: Ms J Isherwood, Home Office Presenting Officer

DECISION AND REASONS
Anonymity
1. The First-tier Tribunal did not make an anonymity direction and I do not consider that the Appellant should be accorded anonymity for these proceedings in the Upper Tribunal.
Background
2. The Appellant appeals to the Upper Tribunal from the decision of the First-tier Tribunal (Judge Doyle) dismissing his appeal against the decision of the Secretary of State to refuse to issue him with a permanent residence card, as confirmation of a retained right to reside in the United Kingdom (UK), as the former spouse of an EEA national.
3. The Appellant is a national of Ukraine. He first entered the UK on 31 October 2003 with valid leave as a work permit holder. He married a Latvian national in the UK on 12 January 2008 and thereafter left the UK. On 18 March 2008 the Secretary of State issued the Appellant with a family permit and he re-entered the UK on 3 April 2008. The Appellant made a successful application for a five-year residence card as a family member of an EEA national exercising Treaty rights in the UK. The card was issued on 28 September 2009. The marriage ended in divorce on 25 October 2011. The Appellant was again successful in his application for a residence card on the basis that he had retained a right of residence. That card was issued on 26 February 2013 and is valid until 26 February 2018.
4. On 20 January 2016 the Appellant applied for a residence card as confirmation of his right to reside in the UK on a permanent basis under the Immigration (EEA) Regulations 2006.
5. On 13 July 2016 the Respondent issued a Notice of Immigration Decision refusing the application under Regulation 15. This was on the ground that the Appellant had not completed a five-year period of residence in accordance with the Regulations since October 2011, and had failed to submit proof of his exercise of Treaty rights from 1 September 2013 to 28 February 2014. So, it was decided to refuse to issue the confirmation he sought under Regulation 15(1)(f) with reference to Regulation 10(6).
The Decision of the First-tier Tribunal
6. The Appellant’s appeal was allocated to Judge Doyle in the First-tier Tribunal on 19 September 2016. The Appellant had waived his right to an oral hearing and the appeal was determined on the papers upon his request. Both parties had submitted evidence in support of the appeal. The reason the judge dismissed the appeal under the Regulations was on the basis of his conclusion that, there was a gap in the evidence of the Appellant’s exercise of Treaty rights between 1 September 2013 to 28 February 2014.
The Application for Permission to Appeal
7. The Appellant applied for permission to appeal on the ground that the judge materially erred in law in concluding that there was a gap in the evidence as found; available evidence not being considered and failed to consider relevant periods of residence in terms of establishing permanent residence.
The Grant of Permission to Appeal
8. On 20 December 2016 First-tier Tribunal Judge Hodgkinson granted permission to appeal on the basis that it was arguable that available evidence of the Appellant’s exercise of Treaty rights during the period in dispute had not been considered or taken into account. It was specifically noted, however, that the “grounds are incorrect in indicating that the appellant’s claimed employment during the period September 2013-February 2014 is referred to in the appellant’s statement, when it is not”.
The Respondent’s Rule 24 Reply
9. The Respondent opposed the appeal in her rule 24 Reply of 17 January 2017. Reference was made to the comments made by the permission granting judge, and it was argued that the omission of employment details from the Appellant’s witness statement, coupled with the lack of documentation and the random dates on which salary payments were made, that any error was not material.
The Hearing in the Upper Tribunal
10. At the hearing before me, Mr Mold sought, without objection, to amend the Grounds of Appeal to include a ground that the judge erred in finding the Appellant was required to show that he was exercising Treaty rights once he had retained a right of residence referring to Samsam (EEA: revocation and retained rights) Syria [2011] UKUT 165 (IAC). I granted permission to amend the grounds because it was arguably material to the decision. I proceeded to hear submissions from both representatives at the end of which I reserved my decision.
Reasons for Finding an Error of Law
11. There was some dispute between the parties at the hearing as to whether the observation made by the judge granting permission to appeal was correct. Therein, it was stated that the grounds were incorrect to assert that the Appellant’s witness statement referred to his employment during the disputed period. Mr Mold contended that this was incorrect and Ms Isherwood’s submissions were primarily based on the permission granting judge’s observation being correct.
12. The Appellant’s witness statement that was before the First-tier Tribunal is exhibited in the Appellant’s bundle at pages 351 to 353. While the witness statement could have been more clearly structured, there is towards the end of that statement a sub-heading of “Employment chronology”, under which, there is a description of the Appellant’s employment covering the disputed period. The confusion possibly arises because that chronology does not appear in the main body of the witness statement and was omitted for some reason in the witness statement in Ms Isherwood’s possession. That is unfortunate. Nevertheless, I am satisfied that a witness statement containing the Appellant’s chronology of employment was before the judge. I am also satisfied that there was before him evidence of the Appellant’s employment that was not considered, albeit, he did not have the benefit of a representative directly drawing that evidence to his attention. Mr Mold took me to the Appellant’s bank statements that clearly identified salary payments from the relevant employer that covered the six-month period that the judge considered missing. In light of that, I am satisfied the judge erred in failing to take that evidence into account. I am also satisfied that the error is material, as the error was capable of affecting the outcome of the decision.
13. I thus set aside the decision.
The Remaking of the Decision
14. The parties agreed that I could proceed to remake the Decision on the evidence that was before the First-tier Tribunal. In remaking the Decision I have considered and assessed all the evidence before me as at the date of hearing on a balance of probabilities bearing in mind that the burden of proof rests on the Appellant.
15. There is not much dispute about the background. There is no dispute that from the date of marriage in January 2008 the Appellant was residing in the UK as the family member of an EEA national exercising Treaty rights until the marriage was terminated. There is also no dispute that the Appellant retained a right of residence on divorce on 25 October 2011. There is evidence that the Appellant continued to work following his divorce, which is not challenged, and I am satisfied that the evidence that I was referred to by Mr Mold is sufficient to establish that the Appellant continued to work from 1 September 2013 to 28 February 2014, and that his employment has since continued.
16. Regulation 15(1)(f) provides that a person shall acquire the right to reside in the UK permanently if he:
(i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and
(ii) was, at the end of that period, a family member who has retained the right of residence.
17. In order to meet the requirements of regulations 15(1)(f), the first thing that the Appellant needs to do is show that he has resided in the UK in accordance with the Regulations for a continuous period of five years. In the reasons for refusal letter the Respondent concluded that the Appellant failed to provide evidence that he had done so because there was a gap in the evidence of his employment from 1 September 2013 to 28 February 2014, but that lacuna no longer prevails for the reasons given above. The Respondent has previously recognised that the Appellant was residing in the UK since April 2008 in accordance with the Regulations, and that, following termination of the marriage in October 2011 that he had retained a right of residence. Since then there is evidence that the Appellant continued to work and the only issue with continuity taken by the Respondent was the gap in the evidence between September 2013 to February 2014. As that gap has now been filled, the evidence of continuous residence covers a five-year period from 2008 to 2013 at the end of which the Appellant had retained a right of residence. I am thus satisfied that the Appellant does meet the requirements of regulation 15(1)(f). Accordingly the appeal succeeds.

Decision
The decision of the First-tier Tribunal contained an error of law. Accordingly the decision is set aside and the following decision is substituted: the Appellant’s appeal under the Regulations is allowed.

Signed Date
Deputy Upper Tribunal Judge Bagral

Fee Award
In the light of my decision, I have considered whether to make a fee award. I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011). I make a full fee award.

Signed Date
Deputy Upper Tribunal Judge Bagral