Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number IA/08549/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham Decision and Reasons Promulgated
On 22nd March 2017 On 13th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE PARKES

Between

CEDRIC PILAG
(ANONYMITY DIRECTION NOT MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: No appearance
For the Respondent: Mrs R Pittersen (Home Office Presenting Officer)

DECISION AND REASONS

1. The Appellant applied for a residence card as the family member of an EEA national on the 5th of November 2014. The application was refused on the 17th of February 2015. There followed one decision which was overturned on procedural issue and the appeal was then considered by First-tier Tribunal Judge Hussain at Birmingham on the 10th of March 2016. He dismissed the decision for the reasons given in his decision promulgated on the 16th of March 2016

2. The Appellant had requested a paper disposal of his appeal and did not attend the hearing before Judge Hussain. In paragraph 11 of the decision the Judge noted that the original bundle had been submitted on the 1st of May 2015. In paragraph 12 the Judge went on to list the additional evidence which had come by fax and amounted to 3 copies of wage slips but with no other supporting evidence.

3. The Judge was troubled by the failure to provide other wage slips and other evidence such as from HMRC particularly given the concerns that had been raised in the Refusal Letter. In paragraph 27 the Judge explained that he had a P60 for April 2014 and the additional payslips did not establish continuity of employment and in any event the Judge attached no weight to the wage slips and found that it had not been shown that the Sponsor had been exercising treaty rights.

4. The Home Office had sought to maintain that the Appellant's marriage was a marriage of convenience but had failed to provide a copy of the interview which formed the basis for that assertion. In those circumstances the Judge found that the Home Office had not met the evidential burden and found that there were no reasons to find that the marriage was one of convenience. This is a matter that could be revisited if there is a future application by the Appellant if the Home Office actually serve the relevant evidence but is not a live matter in this appeal and the Home Office did not challenge the Judge’s findings on this point.

5. The Appellant's first application for permission to appeal to the Upper Tribunal was refused. On renewal permission was granted by Upper Tribunal Judge Plimmer noting that documents referred to in the grounds of application and apparently in the Appellant's bundle had not been referred to by the Judge. The Appellant was directed to serve a copy of the bundle and index that had been before the First-tier Tribunal with any other relevant evidence.

6. The Appellant did not serve a copy of the bundle as directed and, in line with his expressed wish to have the appeal to the Upper Tribunal considered on the papers did not attend the hearing. The result is that I do not have a copy of the First-tier Tribunal bundle or the originals of the wage slips or any submissions to explain why the Judge was wrong to attach no weight to the 3 wage slips that had been faxed to the Tribunal.

7. Having read the decision I find that the Judge did not err. The Appellant was aware of the issues that concerned the Home Office and the information that the Home Office were looking for in order for them to be satisfied that the Appellant met the terms of the EEA Regulations. The evidence was not the original, there was supporting evidence that the Judge was entitled to expect would have been provided and there remained the significant gap between the April 2014 P60 and the evidence submitted.

8. The Judge was entitled to attach no weight to the wage slips from M&B for the reasons given and in the circumstances there was no evidence that the Sponsor was exercising treaty rights with the last evidence dating back most recently to April 2014. The Judge was entitled to dismiss the appeal for the reasons given and the grounds disclose no arguable error of law, the decision of the First-tier Tribunal stands as the disposal of the decision in this appeal

CONCLUSIONS

The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

I do not set aside the decision.

Signed:

Deputy Upper Tribunal Judge Parkes

Dated: 22nd March 2017

Anonymity

The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and I make no order.

Fee Award

In dismissing this appeal I make no fee award.

Signed:

Deputy Judge of the Upper Tribunal (IAC)

Dated: 22nd March 2017