Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/09624/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 April 2017
On 18th April 2017

Before

UPPER TRIBUNAL JUDGE FINCH

Between

SAMIR YAHIAOUI
(NO anonymity direction MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: No legal representation
For the Respondent: Mr. Melvin, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant, who was born on 9 April 1987, is a national of Algeria. The Appellant entered the United Kingdom as a Tier 4 (General) Student Migrant on 6 December 2013 on a visa, which was valid until 8 October 2014. This leave was subsequently extended until 9 September 2015.

2. There is a tenancy agreement that indicates that the Appellant was living with his Polish national partner from 17 June 2015 and evidence to show that they married on 8 December 2015. He applied for a residence card as a member of her family on 19 January 2016. His application was refused on 26 July 2016 on the basis that he had failed to provide evidence to confirm that his wife was a qualified person for the purposes of the Immigration (European Economic Area) Regulations 2006, as amended. The Appellant appealed against this decision on 9 August 2016. When he did so he submitted further payslips and a copy of his wife’s P60 for 2015/2016 and a P45.

3. His appeal was heard by First-tier Tribunal Judge Kempton on 26 September 2016. She said in her decision and reasons that he made no appearance but when he appealed he had asked for the appeal to be heard on the papers. His appeal was dismissed in a decision and reasons promulgated on 18 October 2016.

4. First-tier Tribunal Judge Gillespie granted him permission to appeal on 15 February 2017.

ORAL HEARING

5. As the Appellant was unrepresented, I asked Mr. Melvin to make his submissions first so that the Appellant would have a better understanding of the case that he had to meet. Mr. Melvin submitted that the decision reached by First-tier Tribunal Judge was one which was clearly open to her on the evidence before her. He also submitted that no weight could be placed on the Appellant’s wife’s P45 without a supporting letter from HM Revenue and Customs. He relied on the fact that the Appellant and his wife had not attended the appeal hearing and had not submitted witness statements. He added that even if the Appellant’s wife had been working at the date of the decision, this was not a material consideration, as she was not in the United Kingdom at the date of the hearing.

6. In response, the Appellant submitted that his wife had had to return to Poland before the appeal hearing, as her mother was ill and had subsequently died. He also explained that she had just gone to Poland for Easter to visit her widowed father who was now on his own. In reply, Mr. Melvin submitted that, if the Appellant was still married, he could make a further application for an EEA Residence Card.

THE DECISION

7. The Respondent did not assert that the Appellant had entered into a sham marriage despite putting the Appellant on notice on 23 July 2015 that she was investigating his proposed marriage. Instead, she asserted that the Appellant had not shown that his wife was a qualified person at the date of the decision to refuse him a Residence Card, which was 26 July 2016.

8. The Appellant had submitted payslips which indicated that his wife had worked for Just Around The Corner Ltd. Her P60 for 2015/2016 and her P45 confirmed that she had worked for this employer until 27 July 2016 and were also before First-tier Tribunal Judge Kempton. This was a significant date as it post-dated the Respondent decision to refuse the Appellant a residence card. The P60 and P45 were also significant as they confirmed that “Le Mercury” was the trading name of Just Around The Corner Ltd. Mr. Melvin relied on the fact that the P60 was a copy and did not give any weight in general to P45s without an accompanying letter. However, the First-tier Tribunal Judge clearly relied on the P45 in paragraph 11 of her decision and reasons, albeit misunderstanding the date that the Appellant’s wife left work.

9. The First-tier Tribunal Judge did not explain why she did not give weight to the Appellant’s wife’s P60 and P45; merely stating that the P60 was a copy. The First-tier Tribunal Judge also failed to take into account the fact that an accountant at his wife’s employer had completed the Employer’s Declaration at 12.9 of his application form and that the stamp gave the same address for Just Around The Corner Ltd as that of Le Mercury.

10. First-tier Tribunal Judge Kempton also found in paragraph 11 of her decision and reasons that it was not clear whether the Appellant and his wife remain a family. But when doing so she did not take into account the fact that the Appellant had submitted a medical certificate for his wife’s mother, dated 1 August 2016, which indicated that she was suffering from cancer. The First-tier Tribunal Judge did not give any reasons for believing that this was not the case and that the Appellant’s wife’s was not just temporary.

11. In paragraph 10 the First-tier Tribunal Judge states that there was no further evidence of employment but this was not the case as payslips for the same employer had been attached to the Appellant’s application. The First-tier Tribunal Judge also made a mistake of fact when she found that the Appellant’s wife was not working at the date of the decision. The evidence indicated that she was a qualified person at that date and, therefore, the decision to refuse the Appellant a Residence Card breached the Immigration (European Economic Area) Regulations 2006 and EU law.

12. Mr. Melvin also relied on the fact that the First-tier Immigration Judge also found that by the time of the hearing, the Appellant’s wife was not working here. However, the decision being appealed is the Respondent’s decision to refuse the Appellant a residence card.

13. First-tier Tribunal Judge Kempton did not consider the Appellant’s human rights in the decision and reasons but in Amirteymour & others (EEA appeals; human rights) [2015] UKUT 00466 (IAC), the Honourable Mr. Justice McCloskey held that “where no notice under section 120 of the Act has been served and where no EEA decision to remove has been made, an appellant cannot bring a human rights challenge to removal in an appeal under the EEA Regulations”.

14. But for the reasons connected with the Appellant’s entitlement to a residence card under the EEA Regulations I find that First-tier Tribunal Judge Kempton made material errors of law in her decision and reasons.

DECISION

15. The appeal is allowed.

16. First-tier Tribunal Judge Watt’s decision and reasons are set aside.

17. The appeal is remitted to the First-tier Tribunal for a de novo hearing before a First-tier Tribunal Judge, other than First-tier Tribunal Judge Kempton.

Nadine Finch

Signed Date 6 April 2017

Upper Tribunal Judge Finch