Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/07870/2015

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On 17 January 2017
On 3 March 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

patrick gyamfi
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms D Ofei-Kwatia
For the Respondent: Ms A Brocklesby-Weller, a Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is the resumed hearing following my earlier decision (promulgated 23 November 2016) that the First-tier Tribunal had erred in law such that the decision fell to be set aside. The error of law decision is as follows:
1. I shall refer to the appellant as the respondent and to the respondent (as they appeared respectively before the First-tier Tribunal). The appellant, Patrick Gyamfi, was born on 30 June 1973, and is a male citizen of Ghana. He had appealed against the decision dated 11 October 2014 refusing his application for a residence card as a confirmation of a right to reside in the United Kingdom. The First-tier Tribunal (Judge Miller) in a decision dated 4 July 2016 allowed the appeal. The Secretary of State now appeals, with permission, to the Upper Tribunal.
2. The judge considered that the appeal turned on the question as to whether the sponsor of the appellant “had exercised treaty rights for five years and the position regarding the divorce” (see Regulation 15(1)(b) of the Immigration (European Economic Area) Regulations 2006). The appellant is divorced from the sponsor and but the details of that divorce do not appear to have been provided either to the Tribunal or to the Secretary of State. I note from the decision of the First-tier Tribunal that the judge recorded that the appellant had been divorced from the sponsor in October 2015.
3. The judge's reasoning is brief. He notes that the “bundle prepared on behalf of the appellant is comprehensive and detailed”. However, he went on to record that:
the sponsor's work history is hardly impressive, it is clear there have been considerable periods when she has been dependent on job seekers allowance. Nevertheless under the Regulations this qualifies as exercising Treaty Rights. Accordingly I am satisfied the appellant has now proved that this requirement is met.
4. The grounds of appeal challenge that analysis. In particular, the Secretary of State submits that the judge has failed properly to examine the nature either of the sponsor's employment or the periods when she was not employed and was in receipt of job seekers allowance
5. As Regulation 6 makes clear, periods of involuntary unemployment will not necessarily lead to a sponsor ceasing to be a “qualified person” for the purpose of the Regulations.” Further,
a person may not retain the status of a worker pursuant to paragraph 2(b) or job seeker ... for longer than the relevant period unless he can provide compelling evidence that he is continuing to seek employment and has a genuine chance of being engaged.
6. Paragraph 8 of Regulation 6 provides that the “relevant period” shall be “in the case of a person retaining worker status ... a continuous period of six months”. The position for job seekers is set out at Regulation 6(8)(b). In the present decision, the judge has wholly ignored these detailed provisions of the Regulations even though he was aware that there had been “considerable periods” when the sponsor was in receipt of job seekers allowance. In the circumstances, I am not satisfied that the judge has applied his mind to the Regulations or, if he has, that he has provided cogent or adequate reasons for finding that the appellant satisfied the Regulations.
7. Further, the appellant advanced his case to the First-tier Tribunal on an alternative ground; he had sought also to persuade the Tribunal that his appeal should be allowed under Regulation 10(5). The judge has not engaged with that element of the appeal at all. In consequence of failing to determine all the grounds raised by the appellant, the judge has erred in law.
8. I set aside the decision of the First-tier Tribunal. None of the findings of fact shall stand. Mr Duffy, for the Secretary of State, told me that he would need time in which to seek information from HMRC in particular regarding the sponsor's taxation position in the period 2015-2016. Miss Ofei-Kalatia told me that her client would also require time to obtain further evidence.
DIRECTIONS
(1) The appeal is allowed. The decision of the First-tier Tribunal is set aside. None of the findings shall stand.
(2) The decision will be remade in the Upper Tribunal following a resumed hearing before Upper Tribunal Judge Clive Lane.
(3) The parties shall file at the Tribunal and shall send to each other copies of any evidence upon which they may respectively intend to rely no less than 5 working days prior to the resumed hearing.

No anonymity direction is made.
2. At the resumed hearing, I heard evidence from the appellant. He was cross-examined by Ms Brocklesby-Weller, for the respondent. I then reserved my decision having heard the oral submissions of both representatives.
3. I admitted in evidence a supplementary bundle of documents (bundle pages 159-169) and my decision is based on all the evidence, both oral and documentary. The burden of proof is on the appellant and the standard of proof is the balance of probabilities.
4. I have set out the issues in the appeal in the error of law decision (see above). The appellant asserts that he is entitled to a residence card under both Regulation 15 and Regulation 10 of the 2006 Regulations. The appellant divorced from his previous wife in October 2015. As identified in the previous error of law decision, the appeal turns on the question of the employment status of the appellant’s previous wife. In cross-examination, the appellant told me that his previous wife had left the United Kingdom last week and was unable to give oral evidence before the Tribunal. He also told me that his previous wife had worked as a carer for a friend who had disabilities and for whom she claimed the carer’s allowance. No further details of that income which the appellant’s previous wife had enjoyed were available.
5. I find that the appellant’s appeal should be dismissed. I have reached that finding for the following reasons. I agree with Ms Brocklesby-Weller that the evidence which the appellant has produced is simply insufficient to discharge the burden of proof which rests upon it in the appeal. The appellant claims to enjoy good relations with his previous wife and that she has provided him with a number of documents relating to her tax affairs in the period prior to their divorce. At [115] of the appellant’s bundle there is a “in progress” tax return for the appellant’s previous wife for the tax year 2013-14. This shows a profit from self-employment of £3,430 upon which no tax was payable. A subsequent return for the tax year 2015-16 (again shown as “in progress”). Subsequent pages [139-140] show a completed return and profit from self-employment was £6,584 (once again no tax is payable). From the tax returns there was a period within each tax year during which the previous wife may have been working is not shown. I agree with Ms Brocklesby-Weller that the first tax return showing a profit of little over £3,000 would appear to indicate that in that tax year the appellant’s former wife did not earn enough money from self-employment (as a cleaner) to sustain herself. It is reasonable to draw the inference that during that tax year the appellant’s former wife was without employment. ; she was likely to have been in receipt of jobseekers allowance (JSA). I am aware that the social security authorities were satisfied that the appellant had retained her worker status in order to claim JSA. However, what is wholly lacking for the period of the years prior to the divorce or any other particulars of the former wife’s self-employment including invoices, details of clients, full particulars of periods without work etc. Whilst I also fully appreciate that it is very difficult for a former spouse to obtain extensive documentary evidence relating to his or her former spouse’s employment, the fact remains that, in order to succeed in the appeal under paragraph 15 or 10, that the appellant needs to prove, to the necessary standard, that his former wife had retained the status of a worker or jobseeker. On the evidence which he has produced, I find that he has failed to discharge that burden of proof. It follows, therefore, that the appeal must be dismissed.
Notice of Decision

The appellant’s appeal against the decision of the respondent dated 11 October 2014 is dismissed.

No anonymity direction is made.

Signed Date 2 March 2017

Upper Tribunal Judge Clive Lane

TO THE RESPONDENT
FEE AWARD

Because the appeal is dismissed there is no fee repayment.

Signed Date 2 March 2017

Upper Tribunal Judge Clive Lane