Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10031/2014

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 21 June 2016
On 18 August 2016

Before

UPPER TRIBUNAL JUDGE DEANS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR ERVIN SELITA
Respondent

Representation:
For the Appellant: Mr N Bramble, Senior Home Office Presenting Officer
For the Respondent: Mr G Lee of Counsel, instructed by Tuckers Solicitors

DECISION AND REASONS
1) This is an appeal by the Secretary of State against a decision by Judge of the First-tier Tribunal V Jones. The appellant before the First-tier Tribunal, Mr Ervin Selita, is hereinafter referred to as "the applicant".
2) The applicant is married to a Slovakian national, Adriana Melichercikova. The applicant and his wife entered the UK in May 2007 and the applicant was granted a residence card in December of that year. The couple separated in 2011 but it not disputed that they are still married and the applicant is a "family member" of an EEA national in terms of reg. 7 of the Immigration (European Economic Area) Regulations 2006 "(EEA) Regulations".
3) The applicant made a further application for a residence card under regulation 17 of the EEA Regulations. This was refused by the Secretary of State on 5 February 2014. The Secretary of State was not satisfied that the applicant's spouse was exercising Treaty rights in the UK.
4) The Judge of the First-tier Tribunal recorded that the applicant's wife, who did not give oral evidence, had previously worked for Minster Cleaning Services but had left this employment on 31 January 2014 because she was pregnant and had had time off work due to pregnancy related sickness. The applicant's wife's employment history showed that she had worked as a beauty therapist from 2006 to 2009. She then received Job Seeker's Allowance for a period. In November 2010 she began working as a cleaner for Ultraclean Cleaning. In February 2011 her employment was transferred to Cleandustrial Services, where she continued working until April 2011. She worked for Minster Cleaning Services from September 2012 and was working there when the applicant applied for his residence card in November 2013. It seems she left there at the end of January 2014, shortly before the Secretary of State made inquiries in February 2014 as to whether she was still working there.
5) According to the applicant's wife her next employment was with Morello Ristorante in South Woodford, London, commencing on 31 July 2015 and ending in September 2015. She gave up this employment because she learned, through checks made by the Secretary of State, that her employer had not registered her with HMRC for PAYE purposes. On 1 October 2015 she began working for Wada Express Ltd.
6) Notwithstanding these employment difficulties the applicant produced 4 payslips for his wife covering her work at the Morello Ristorante between July and September 2015, together with an original letter from the employer confirming her employment. In relation to his wife's current employment, the applicant produced a copy of her employment contract stating she is contracted to work for 20 hours a week. This was supported by a payslip showing 87 hours worked in the month of October. This payslip was, however, challenged on behalf of the Secretary of State before the First-tier Tribunal because it was dated 5 November 2015. The judge accepted that it was common for employers to have fixed pay dates and to pay wages in arrears.
7) The Secretary of State referred to an apparent discrepancy over the nature of the applicant's wife's employment. In her witness statement she said she worked as a waitress whereas her contract stated she was a production assistant. The applicant was unable to explain this discrepancy but he believed that his wife was working as a waitress. The Judge of the First-tier Tribunal was satisfied that the applicant's wife was working in the UK and exercising Treaty rights and therefore the appeal was allowed.
8) The application for permission to appeal made on behalf of the Secretary of State was based on two main grounds. The first of these was an alleged failure to give reasons or adequate reasons for findings on material matters. The second was making perverse or irrational findings on matters that were material to the outcome. In relation to the first of these grounds it was submitted that the Judge of the First-tier Tribunal had failed to provide adequate reasons for accepting the applicant's wife was a qualified person exercising Treaty rights at the date of the hearing. Reference was made to the payslip dated 5 November, which was supposedly for the month of October, and the contract stating that the applicant's wife is a production assistant whereas she is working as a waitress. This evidence had been challenged on the basis of the apparent contradiction over the nature of her employment and the anomaly over the date of the payslip. The applicant's spouse did not attend the hearing and did not provide any oral evidence. The judge found that there was no discrepancy over the date on the payslip and found that despite the apparent discrepancy in the job title, the judge was not persuaded that the employment was not genuine. The judge stated that job descriptions did not always convey in plain English the exact nature of the duties carried out but a clause in the contract required the employer to carry out other duties reasonably required.
9) The Secretary of State further challenged the judge's acceptance that the applicant's wife had given up her job with Minster Cleaning in January 2014 as she was pregnant and had time off work due to pregnancy related illness. This finding was unrelated to the applicant's wife's wage slips.
10) In relation to perversity or irrationality, the Secretary of State submitted that the Judge of the First-tier Tribunal had made findings in relation to the applicant's wife's employment that were not based on the evidence submitted but the judge's own belief. Given as an example of this was the payslip dated 5 November 2015 showing 87 hours worked in the month of October. The applicant's wife was contracted to work for 20 hours a week. The judge had no basis other than assumption for stating that the employer may have fixed pay dates but pay wages in arrears. There was no evidence to support that there was a fixed pay date of 5 November. A similar challenge was brought to the judge's findings in respect of the discrepancy in the evidence over whether the applicant's wife was working as a waitress when her contract described her as a production assistant. There was no evidence dealing with the matter, as recognised by the judge at paragraph 19 of the decision, and the finding was based on a further assumption by the judge. The role of production assistant was entirely different from that of waitress and without any evidence before the judge to explain the discrepancy it was irrational to assume that this discrepancy was resolved by reference to a contractual clause that specified additional duties.
11) Permission to appeal was granted on the basis that it was arguable that the judge had found that the applicant's wife was a qualified person on the basis of assumptions and not evidence. It was further arguable that the judge had not taken into account or properly considered discrepancies in the evidence which had been left unresolved.
Submissions
12) At the start of the hearing before me I was directed by Mr Lee to a supplementary bundle filed on behalf of the applicant on 15 September 2015, which contained up-to-date information regarding the applicant's wife's employment. It was this evidence that the Judge of the First-tier Tribunal had made findings in favour of the applicant.
13) For the Secretary of State Mr Bramble submitted that the first issue was in relation to the date of 5 November 2015 on the payslip supposedly for October 2015. At paragraph 26 of the decision the judge stated that there was no discrepancy for the reasons set out at paragraph 14, but paragraph 14 did not relate to this issue. It was paragraph 18 which related to this. This could be a typing error but Mr Bramble questioned whether the judge was entitled to come to the conclusion that there was no discrepancy after the date was challenged. The judge treated the payslip as a backdated payment. On what basis did the judge come to this conclusion? This was an assumption.
14) Mr Bramble referred to the applicant's wife's witness statement explaining her change of employment. For the new job the salary slip and the contract of employment were provided. According to the contract the applicant's wife was a production assistant but according to her witness statement she was a waitress.
15) The judge's conclusion on this matter was perverse and irrational and based on an assumption. At paragraph 26 the judge stated that job descriptions did not always convey in plain English the exact nature of the duties carried out and there was a clause in the contract requiring the applicant's wife to carry out other duties.
16) A question was asked about the business of Wada Express, who were the applicant's wife's employers. It was explained that this company was proprietor of a restaurant.
Discussion
17) Having heard from Mr Bramble, I did not consider it necessary to hear from Mr Lee. All that was necessary in this appeal was for the applicant to satisfy the judge that his EEA national spouse was in employment in the UK at the date of the hearing. The main evidence in support of this claim was the applicant's wife's witness statement dated 20 November 2015, the payslip dated 5 November 2015, and the contract of employment from Wada Express Ltd.
18) At the hearing before the First-tier Tribunal, this evidence was challenged on the basis that the payslip was dated 5 November 2015 although it purported to be for the month of October, and the contract described the employee's role as production assistant whereas her evidence was that she was a waitress.
19) It was confirmed at the hearing before me that the business of Wada Express Ltd was the ownership and running of a restaurant. It does not seem to me to be unreasonable to assume that a production assistant in a restaurant is a term sufficiently broad to encompass the work of a waitress. The term "production assistant" may not be plain English, but the judge was entitled to observe that job descriptions do not always convey in plain English the exact natures of the duties carried out. The judge did not act unreasonably or perversely in finding that the applicant's wife is employed as a waitress and the judge gave adequate reasons for this finding.
20) So far as the discrepancy over the date of the payslip is concerned, the employment started on 1 October 2015 and the first payslip was dated 5 November 2015 for the month of October. The judge commented that it was common for employers to pay wages in arrears. I consider that the judge was entitled to make this observation, particularly where the employment had recently commenced. There was nothing perverse or irrational about this observation. The judge was not basing the decision on an unjustifiable assumption but giving an adequate explanation and proper reasons for the finding made.
21) I am satisfied that the judge was entitled to reach the decision favourable to the applicant for the reasons which were given, which were adequate and sustainable. I find no error of law in the judge's decision.
Conclusions
22) The making of the decision did not involve the making or an error on a point of law.
23) I do not set aside the decision.
Anonymity
24) No order for anonymity was made by the First-tier Tribunal. I have not been asked to make such an order and I see no reasons of substance for doing so.

Signed Date 17th August 2016

Upper Tribunal Judge Deans