Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/06382/2015
IA/07835/2015
IA/07837/2015
IA/07841/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 August 2016
On 30 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

Between

(1) MAHABUB [K]
(2) SWEETY [K]
(3) [T K]
(4) [I K]
(ANONMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: No legal representation
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The Appellants appeal against a decision dated 7 December 2015 of Judge D Ross of the First-tier Tribunal (the FtT).
2. The First Appellant, a national of Holland, is the husband of the Second Appellant and the Third and Fourth Appellants are their children.
3. The Appellants applied for permanent residence in the UK relying upon the Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations).
4. The applications were refused on 2 February 2015 with reference to regulation 15(1)(b) of the 2006 Regulations in relation to the First Appellant, and regulation 15(1)(a) in relation to the other Appellants. Thereafter the Appellants appealed and requested that their appeals be decided on the papers without an oral hearing.
5. The FtT decided the appeals on the papers, which were dismissed in a decision dated 7 December 2015.
6. The Appellants applied for permission to appeal to the Upper Tribunal and permission was granted on 17 May 2016 by Judge of the First-tier Tribunal Hodgkinson. Judge Hodgkinson commented, inter alia, in granting permission;
"The appellants are unrepresented and, as I have indicated, their appeals were considered on the available documents which, I am satisfied, did not greatly assist the Judge in his consideration of relevant factors. However, having considered available documents, and having considered the Judge's reasoning, as set out in paragraph 12 of his decision, it is arguable that he erred in law in his consideration of the documentary evidence and in his application thereto of the relevant provisions of the EEA Regulations."
7. The Tribunal issued directions that there should be a hearing before the Upper Tribunal to decide whether the FtT decision should be set aside by reason of material error of law.
The Upper Tribunal Hearing
8. The Appellants attended the hearing. The First Appellant confirmed that he did not have legal representation and was content to proceed. He also confirmed that he was the author of the Grounds of Appeal and that he could speak English, but he wished to proceed with the assistance of his friend acting as a Mackenzie friend. He refused the invitation for a court interpreter. I permitted the friend without objection to assist the First Appellant and to address the Tribunal. I was satisfied that the First Appellant understood the proceedings throughout.
9. I explained to the First Appellant the purpose of the hearing which was to ascertain whether the FtT had erred in law. The First Appellant relied on the grounds of appeal and added that he had lived in the UK for ten years and that his children attended school.
10. I heard submissions from Mr Jarvis as to error of law, and he submitted that the FtT had not erred in law, and that, the Appellants had not produced evidence to discharge the burden of proof and therefore the FtT was correct to dismiss the appeals.
11. In reply the First Appellant stated that he sent all relevant documents to the FtT but admitted that some of them were now missing.
12. I then reserved my decision, and explained to the First Appellant that I would issue a written decision.
My Conclusions and Reasons
13. I do not find that the FtT erred in law in dismissing the appeals.
14. The Appellants applied for permanent residence. The Respondent refused the application on the basis that there was insufficient evidence to show that the First Appellant had been exercising treaty rights for a continuous period of five years.
15. The FtT considered the documentation filed by the Appellants which showed that the First Appellant had experienced periods of work and unemployment [12]. Whilst the FtT was incorrect in its observation that the First Appellant could only retain his status as a worker if he was unemployed for no longer than six months, it found that inadequate evidence had been submitted by the Appellants to prove that they were entitled to permanent residence at [12]. There is no error of law in that finding. The Appellants had not provided evidence to discharge the burden of proof. As Mr Jarvis rightly pointed out that pursuant to regulation 6 (2)(1)(b)(i) a person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if he was employed for one year or more before becoming unemployed. The FtT correctly applied that provision and noted that there was no evidence of the First Appellant's employment for the year prior to September 2009 when he first became unemployed and, there remained gaps in the evidence for the years 2007 and 2008.
16. It was the responsibility of the Appellants, having elected to have their appeals decided on the papers, to ensure that the documentation that they relied upon, was before the Tribunal. I have considered the documentation on file in view of the First Appellant's claim that he submitted all relevant documentation, but the documentary evidence adduced fails to establish that the First Appellant was a qualified person for a continuous period of five years. There is a lacuna in the evidence as the FtT correctly identified.
17. I therefore conclude that the FtT did not materially err in law in dismissing the appeals. Whilst I acknowledge that this decision will be received with disappointment as the First Appellant was clearly concerned about the welfare of his children, but as Mr Jarvis pointed out, the dismissal of these appeals does not affect the Appellants right to remain in the UK as EU nationals.
Notice of Decision
The making of the decision of the FtT did not involve the making of an error on a point of law.
I do not set aside the decision. The appeals are dismissed.
No anonymity direction is made.

Signed Date 25 August 2016

Deputy Upper Tribunal Judge Bagral

TO THE RESPONDENT
FEE AWARD
The appeals are dismissed. There are no fee awards.

Signed Date 25 August 2016

Deputy Upper Tribunal Judge Bagral