Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal No’s: IA/08532/2016
& IA/00804/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
on 23 March 2017
on 24 March 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

LARYSA GORDIYENKO & MAKSYM GORDIYENKO

Respondents

For the Appellant: Mr K Norton, Senior Home Office Presenting Officer
For the Respondent: Mr M Rashid, counsel instructed by David A Grand (non-practising barrister)

DETERMINATION AND REASONS
1. Parties are as described above, but are referred to in the rest of this determination as they were in the FtT.
2. Both appellants applied for residence cards. The SSHD refused their applications for reasons explained in decisions dated 4/2/15.
3. FtT Judge I M Scott allowed their appeals for reasons explained in his decision promulgated on 19/9/16.
4. The SSHD sought permission to appeal on these grounds:
1) The judge erred in taking the question to be whether the EEA national was a qualified person at the date of application, rather than the date of hearing.
2) This was “all the more pertinent” since the judge recorded as fact that the EEA national died outside the UK on 28/2/15, a relevant change of circumstances.
3) The key question became whether under regulation 10 the EEA national was a qualified person at the time of death.
4) The judge recorded evidence that the EEA national was earning £134 per week and was employed between 20/10/14 – 27/2/15, and concluded this was “not marginal or auxiliary” but gave no adequate reasons, given that it is not stated how long the EEA national was outside the UK or how total earnings of £1638 at £134 per week (12 weeks’ pay) could be reconciled to a period of about 4 months.
5) The judge accepted the evidence of the first appellant about the inability of the second to produce a passport but gave no reasons “why background evidence was not adduced to corroborate this from the Ukrainian authorities … the burden lies with the appellant and evidence of this nature should reasonably be available”.
5. From ¶1-3 of the grounds Mr Norton was unable to extract any line of argument or to refer to authority to the effect that the judge made an error about the date at which he was to consider matters or about the evidence he was to take into account, or that if there had been some error, it would have made any difference to the outcome.
6. ¶4 of the grounds is only disagreement on the facts. The evidence provided with the applications was very poor. The respondent did not appear in the FtT. It was not suggested that the judge was not entitled to take account of the evidence there provided. It may not have been above all critical analysis, but it was plainly sufficient to support the judge’s reasoning and conclusions on whether the EEA national was a qualified person.
7. The SSHD’s grounds therefore fail in respect of the first appellant.
8. ¶5 of the grounds raises a separate issue which concerns only the second appellant.
9. Mr Norton tendered current background evidence from the Consulate General of Ukraine and from “Ukrainian-passsport.com”. Mr Rashid did not oppose its admission. There was no dispute that this information is to the effect that a Ukrainian citizen in the UK can obtain a passport here, without having to travel to Ukraine.
10. Mr Rashid submitted that it was possible that practice had changed, and that this material did not show that the evidence of the first appellant about the difficulties encountered over her son obtaining a passport was anything but genuine, or that there was any error by the judge in treating it as such.
11. The second appellant’s application was refused firstly under reference to regulations 17 and 29A, for failure to provide a valid passport.
12. Regulation 29A says that alternative evidence may be accepted “where the person is unable to obtain or produce the required document due to circumstances beyond his or her control”.
13. The evidence from the first appellant was that the second appellant’s passport could not be obtained without him travelling to Ukraine. That evidence was accepted as genuinely given but even if was well founded it was not evidence which justified the finding by the judge at ¶19 that there was “a genuine reason outside his control which prevented him from obtaining a replacement [passport]”.
14. Mr Rashid said that the circumstance beyond the second appellant’s control was that his mother would not permit him to travel to Ukraine. I am doubtful whether that unexplained prohibition could constitute the circumstances required by regulation 29A. More decisively, there was no evidence of it before the FtT. It is not mentioned in the first appellant’s statement and she was not asked about it in oral evidence.
15. Mr Rashid ventured a new submission, that the applicant was not required to produce a passport at all; but that is in my opinion plain from regulation 17(1)(a).
16. Although not identified as precisely as it might have been at ¶5 of the grounds, there was an error of law in respect of the second appellant in that there was no evidence before the judge to justify the finding in the appellant’s favour in terms of regulation 29A. Even if it was impractical to obtain a passport in the UK (which now appears doubtful), there was no evidence of circumstances beyond his control such that he was unable to obtain one. That is an error by which the decision in respect of the second appellant must be reversed.
17. The decision of the FtT in respect of the first appellant Larysa Gordiyenko, IA/08532/2015, shall stand.
18. The decision of the FtT in respect of the second appellant, Maksym Gordiyenko, IA/00804/2016, is set aside, and the following decision substituted: his appeal, as originally brought to the FtT, is dismissed.
19. No anonymity direction has been requested or made.

23 March 2017
Upper Tribunal Judge Macleman