Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00775/2016

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On April 11, 2017
On April 24, 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

MR JAHANZAIB YOUNAS
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Raza (Counsel)
For the Respondent: Mr Harrison, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Pakistan. He applied on March 5, 2015 through his solicitors for a residence card as confirmation of a right to reside in the United Kingdom. The respondent refused his application on January 20, 2016.
2. The appellant appealed that decision on February 5, 2016 under Regulation 26 of the Immigration (EEA) Regulations 2006 and Section 82(1) of the Nationality, Immigration and Asylum Act 2002.
3. His appeal came before Judge of the First-tier Tribunal Ransley (hereinafter called the Judge) on September 26, 2016 and in a decision promulgated on September 29, 2016 the Judge dismissed his appeal. That decision was appealed on October 10, 2016 and Judge of the First-tier Tribunal Nightingdale granted permission to appeal on December 13, 2016 and the matter came before me on the above date for an error of law hearing.
4. I do not make an anonymity order in this case.
SUBMISSIONS
5. Mr Raza submitted that there had been unfairness in this appeal. At paragraph [20] of her decision the Judge made a finding that the appellant and sponsor should have attended and given evidence. The Judge had failed to note that neither the appellant nor sponsor had ever intended to attend the hearing as a paper hearing had been requested. In any event the Regulations required the appellant to show she was working and there was evidence before the Judge that showed she was. The fact her job was probationary mattered not.
6. Mr Harrison inspected the appeal documents and accepted that the appellant had never intended to attend an oral hearing. Both the grounds of appeal and the letter from the solicitors confirmed that only a paper hearing had been requested. The issue was simple namely was there evidence to show the sponsor was exercising treaty rights. The Judge accepted the sponsor was employed but was unsure if they had discharged the burden of proof. He agreed that it was unfair to find their non-attendance undermined the case and he also accepted there was evidence the sponsor was working as required by the Regulations.
FINDINGS
7. Reference to the Court file reveals that when the appellant submitted his grounds of appeal he requested a paper hearing. The Court staff processed this as an oral hearing and shortly before the date of that hearing written submissions and income paperwork was submitted to the Tribunal. The representatives re-iterated that the case should be dealt with on the papers.
8. Given the appeal notice and the letter from the solicitors shortly before the hearing I understand Mr Harrison’s position. The Judge, at the invitation of the Mr Harrison’s colleague, made an adverse finding because of the non-attendance by the sponsor and appellant but in circumstances where they had never intended to attend and had intimated as much twice then an adverse finding on that issue is unfair.
9. However, this point would not amount to an error of law as the issue in this appeal was whether the sponsor was working. Before the Judge were two payslips from a job she had been employed in for two full months. Bank statements covering the same period were also adduced and they confirmed the sponsor’s pay.
10. The Regulations do not say how long the sponsor had to be working and Mr Harrison indicated that if a sponsor was working at the date of hearing then she would be classed as a qualified person under Regulation 6 of the 2006 Regulations.
11. I therefore find that the Judge erred materially in not finding the sponsor was employed. Mr Harrison indicated that if the sponsor was a qualified person at the date of hearing then the appeal should simply be allowed.

Notice of Decision
12. I find an error in law and set aside the original decision. I allow the appeal and direct the appropriate certificate of residence be issued.

Signed Date April 12, 2017

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD
I make a fee award because I have allowed the appeal.

Signed Date April 12, 2017

Deputy Upper Tribunal Judge Alis