Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber)
Appeal number: EA/09213/2016

the immigration Acts

Heard at:
Field House

Decision promulgated
On
19 JANUARY 2017
On
20 january 2017

Before

Upper Tribunal Judge Gill

Between

Midia Mohamad
(ANONYMITY ORDER NOT MADE)

Appellant

And

Secretary of State for the Home Department

Respondent

Representation:

For the appellant: Mr. E Mehmood, of Nationwide Law Associates
For the respondent: Mr. S. Walker, Senior Presenting Officer.

Decision and Directions

1. The appellant, a national of Syria born on 1 January 1991, appeals against a decision of Judge of the First-tier Tribunal Housego who, in a decision promulgated on 28 September 2016, dismissed her appeal against a decision of the respondent of 19 July 2016 to refuse her application of 25 January 2016 for a residence card as confirmation of her right of residence as the spouse of an EEA national exercising Treaty rights in the United Kingdom, a Mr. Kawa Youseff (the "sponsor".
2. The sponsor was a British citizen. He and the appellant and the sponsor had travelled to Germany where they lived for 11 months with a relative, Kibar Yousef. Soon after their arrival in Germany, the appellant gave birth to a son. The sponsor was said to have worked as a childminder for the relative. It was also said that he had studied German in Germany.
3. The respondent refused the application under regulation 9 of the Immigration (EEA) Regulations 2006 (the "2006 Regulations"). The respondent was not satisfied that the appellant had established that the sponsor was genuinely employed in Germany and that he had transferred the centre of his life to Germany. In giving her reasons, the respondent said, inter alia:
"The payslips that you have provided show that your sponsor was paid 420,27 Euros each month and the bank statement printouts show the following amounts paid into sponsor's bank account from Kibar Yousef and Muhamed Zeyno - 374,39 Euros on 3 August, 695.55 Euros on 01 September stating that difference of 275,28 Euros was for February to July 2015 and 420,27 Euros paid on 01 October and 02 November?."
4. The judge decided the appeal on the papers, as the appellant had not opted for an oral hearing. There were several documents before the judge, including bank statements and payslips. These were not translated. It is evident that the fact that the documents were not translated caused the judge some difficulty.
5. The judge found that the appellant had not established that she satisfied the two requirements that were in issue. He gave his reasons at paras 12-14 of his decision, which read:
"12. I am unable to make a finding of fact as to the payment, if any, for childminding because the evidence supplied by the appellant in the form of a letter from KY (Home Office documentation G1) does not mention payment. There are bank statements in German which are not explained, but which appear to show relatively modest amounts of money being paid into the account, for example 30 October 2015 ?254.93 and a further ?300 on the same date, ?28 on 08 October 2015, ?188 on 07 October 2015, ?420.27 on 01 October 2015, ?300 on 30 September 2015, ?254.93 on 30 September 2015, ?509.86 on 14 September 2015, ?188 on 07 September 2015, ?695.55 on 01 September 15, and so on. No contract of employment was provided.
13. I make no finding of fact as to the study of German in Germany by the sponsor as no satisfactory evidence was produced of it.
14. On the basis of these facts, the sponsor moved to Germany for a period of 11 months and lived with a relative for that period. He assisted that relative with childminding and in return lived rent free. Very soon after they arrived the appellant gave birth to her son. The centre of the sponsor's life had not transferred to Germany. On the balance of probabilities he was not employed there either, but simply staying with a relative to help out, and perhaps being given money as well. There is no evidence to establish a contract of employment between the sponsor and the relative in whose home the sponsor and the appellant lived."
(my emphasis)
6. At the hearing, Mr Mehmood submitted, inter alia, that, notwithstanding the fact that the judge did not have translations of the payslips and the bank statements, he had erred in law because the figures he mentioned at para 12 showed that he had mixed up payments by way of salary and child benefit payments. He submitted, inter alia, that the judge should have examined the payslips, identified the payments on the payslips and cross-referenced them on the bank statements.
7. I have no hesitation in rejecting these submissions. Mr Mehmood's submissions fail to take proper account of the significance of rule 12(5)(b) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. Judges are not obliged to consider documentary evidence that is not in the English language and for which no certified translations have been provided. If a judge has no such certified translations and there is nothing in the decision letter that materially assists him in this respect, the appellant can hardy complain if the judge goes beyond his duty and does his best to consider the contents.
8. Nevertheless, in this particular case, Mr. Walker accepted that, given the contents of the decision letter, in particular the paragraph quoted above, it appears that the respondent had translated documents. In any event, he accepted that the judge should have taken into account, at the minimum, what the respondent said about the contents of the payslips and the bank statements in the decision letter. In failing to do so, the judge failed to take into account relevant evidence. Mr. Walker therefore accepted that the judge erred in law in reaching his finding that the sponsor was not genuinely employed in Germany because the evidence as to the alleged wages received by the sponsor was relevant to that finding.
9. Mr. Walker accepted that the error of law was material because it is evident from what the judge said at para 14, in particular the text emboldened at my para 5 above, that he took into account his finding that the sponsor was not genuinely employed in making his finding that the centre of the sponsor's life had not transferred to Germany.
10. I am therefore satisfied that the judge materially erred in law. I therefore set aside his decision under the EEA Regulations. His decision that there is no jurisdiction in an EEA appeal to deal with an Article 8 claim stands.
11. In the majority of cases, the Upper Tribunal when setting aside the decision will be able to re-make the relevant decision itself. However, the Practice Statement for the Immigration and Asylum Chamber of the Upper Tribunal at para 7.2 recognises that it may not be possible for the Upper Tribunal to proceed to re-make the decision when it is satisfied that:
"(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal."
12. In my judgment this case falls within para 7.2(b). In addition, having regard to the Court of Appeal's judgment in JD (Congo) & Others [2012] EWCA Civ 327, I am of the view that a remittal to the First-tier Tribunal is the right course of action.
13. Mr Mehmood informed me that the appellant opted for a paper decision in her Notice of appeal and paid the relevant fee for a paper decision. He informed me that the appellant now wishes to have an oral hearing.
DIRECTIONS
1. Any translations of documents to be relied upon must be certified translations and shall be served within 14 calendar days of the date on which these directions are posted to the parties (regardless of the date of receipt, given that the directions were given orally in open court), together with any other documents to be relied upon. The appellant is on notice that the Judge of the First-tier Tribunal will not consider any documents that are not translated.
2. The appeal is not to be listed for oral hearing until and unless the First-tier Tribunal confirms receipt of the appropriate fee.
Notice of Decision

The decision of Judge of the First-tier Tribunal Housego involved the making of errors on points of law such that the decision to dismiss the appeal under the EEA Regulations is set aside. His decision that there is no jurisdiction in an EEA appeal to deal with an Article 8 claim stands.

This case is remitted to the First-tier Tribunal for that Tribunal to re-make the decision on the appellant's appeal under the EEA Regulations by a judge other than Judge of the First-tier Tribunal Housego.

Upper Tribunal Judge Gill Date: 20 January 2017