Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/08051/2015
ia/08055/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 September 2016
On 27 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

mr jeevapragash bonyface
mrs mathura magilrajah
(ANONYMITY DIRECTION not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr A Slatter of Counsel instructed by Shanthi & Co Solicitors
For the Respondent: Mr E Tufan, a Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This is an appeal by the appellants against a decision of First-tier Tribunal Judge Telford who, in a decision promulgated on 17 February 2016, dismissed the appellants' appeals.
2. The first appellant is a citizen of Sri Lanka who was born on 18 April 1982. The second appellant is a citizen of Germany. The first appellant entered the UK as a student with entry clearance until 29 February 2008. On 26 February 2008 the appellant applied for leave to remain as a student which was granted until 30 April 2009. An application for T1 HS leave to remain was granted until 14 April 2012. The appellants married on 27 August 2011.
3. The Secretary of State made a decision to revoke the appellants' right of residence in the United Kingdom. The reasons for that decision were that the Secretary of State did not consider that the appellants were in a subsisting relationship or that the second appellant was exercising EEA treaty rights in the United Kingdom because she did not accept that the second appellant was working in the United Kingdom. As the second appellant was not exercising treaty rights the Secretary of State considered that the appellants had no right to remain in the United Kingdom under the EEA 2006 Regulations.
The appeal to the First-tier Tribunal
4. The appellants appealed to the First-tier Tribunal against the Secretary of State's decision. The First-tier Tribunal found that the appellants lacked credibility. The Tribunal found that the appellants were not in a subsisting relationship. The Tribunal considered the evidence of the second appellant's exercise of EEA treaty rights and found that the evidence submitted did not support the second appellant's claim to be working in the UK.
The appeal to the Upper Tribunal
5. The appellants applied for permission to appeal against the First-tier Tribunal's decision to the Upper Tribunal. On 26 July 2016 Judge Saffer of the First-tier Tribunal granted the appellants permission to appeal. The grant of permission sets out that it is arguable that the First-tier Tribunal Judge materially erred in law regarding the nature of the relationship and the exercising of EEA treaty rights.
The hearing before the Upper Tribunal
Summary of Submissions
6. Mr Slatter relied on the grounds of appeal. The grounds of appeal set out that the First-tier Tribunal Judge erred in law by considering the appeal on the basis of Article 8 of the European Convention on Human Rights ('ECHR'). Reliance is placed on the case of Amirteymour & Others (EEA appeals; human rights) [2015] UKUT 466.
7. It is asserted in the grounds that the appeal was not argued on the basis of retaining a right of residence and that the judge misunderstood the basis of the appeal. It is submitted that the appeals were brought against the decisions of the respondent to revoke the appellants' residence certificate under Regulation 20(2) of the EEA Regulations.
8. The grounds submit that the judge misdirected himself in law with regard to the burden of proof in the case of revocation under Regulation 20(2). In particular it is argued that the judge erroneously found that the appellant is not exercising treaty rights today. It is asserted that the second appellant was working at T.J. Morris Limited and that evidence had been submitted included her terms and conditions of employment, payslips and bank statements showing deposits from her employer. It is also submitted that the reasoning of the judge with regard to the relationship between the appellants is confused and unclear and that there is reference variously to "marriage of convenience", "durable relationship" and "genuine and subsisting marriage". It is submitted that these are all very different concepts. It is asserted that the judge had failed to give sufficient reasons for finding that the appellants had not shown that they are 'truly together now' and that the judge failed to take adequate or any account of material matters in support of the appellants' cohabitation.
9. Mr Slatter submitted that it is not clear from the determination whether the judge took into account the second appellant's employment at T.J. Morris. He submitted that the appeal had been adjourned on 10 September 2015 to enable the respondent to make enquiries into that employment. He submitted that a witness statement from HMRC only covered the years up to April 2015. The second appellant had only commenced employment with T.J. Morris on 2 August 2015. Mr Slatter submitted that the appellant was exercising treaty rights although she is now on maternity leave. However, that would still amount to an exercise of treaty rights. Mr Slatter submitted that there was a plethora of evidence of the appellants residing at a common address. He referred to various pages of the bundle of evidence submitted in support of the appeal before the First-tier Tribunal. He submitted that the judge failed to take the documentary evidence into account or even to engage with that evidence.
10. Mr Tufan submitted with regard to the appeal on Article 8, that whilst it would not be material to the outcome of the appeal under the EEA Regulations it might have effect in relation to any future claim that the appellants might make with regard to Article 8. He submitted that with regard to the subsisting relationship issue he accepted that the case of Diatta v Land Berlin Case 267/83 was relevant so that the real issue in this case was whether or not the second appellant was exercising treaty rights at the date of the hearing.
11. After considering the evidence in the bundle which consisted of payslips from T.J. Morris, bank statements from Lloyds Bank Limited covering the same periods and a contract of employment Mr Tufan conceded that in light of that evidence the judge had erred in finding that the second appellant was not exercising treaty rights at the date of the hearing.
Discussion
12. In the decision the First-tier Tribunal when considering the evidence of employment set out:
"I am afraid that payslips unsupported from claimed recent employment are not given weight by me as the appellant has been so inconsistent in regard to her evidence that she is incredible.
There is no HMRC evidence. No proper explanation was given for this lack of HMRC evidence for the years 2013, 2014, 2015. I find that obtaining HMRC evidence in these particular circumstances to be a perfectly reasonable step in terms of evidence gathering and production."...
13. Whilst it is clear that both appellants had been inconsistent in the evidence before the First-tier Tribunal Judge with regard to previous employment and indeed with regard to their relationship the judge has failed to engage with the evidence provided in relation to employment with T.J. Morris.
14. There is in the bundle of evidence a number of payslips from T.J. Morris covering a three-month period and there are corresponding payments made into the second appellant's Lloyds Bank account matching the amounts on the appellant's payslips and paid into the account by T.J. Morris. There is also in the bundle a contract of employment and terms and conditions of the second appellant's employment with T.J. Morris.
15. Having accepted the concessions made on behalf of the Respondent - that the only issue was the exercise of treaty rights and that the First-tier Tribunal had erred in failing to consider appropriately the evidence - the First-tier Tribunal's decision discloses an error of law. The decision should therefore be set aside.
Re-making the Decision
16. On the basis of the evidence set out above that the second appellant was working at T.J. Morris at the date of the hearing before the First-tier Tribunal and that she is now on maternity leave I find that the appellant is exercising treaty rights in the United Kingdom. Therefore, I find that the decision of the Secretary of State was not in accordance with the law. The appellants' appeals against the Secretary of State's decisions are allowed.
Decision
17. The First-tier Tribunal's decision contains a material error of law and is set aside pursuant to section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.
18. The appellants' appeals against the Secretary of State's decision are allowed.
19. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.

Signed P M Ramshaw Date 26 September 2016

Deputy Upper Tribunal Judge Ramshaw