Tribunal decisions

The decision

IAC-HW-AM-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/13251/2014
ia/15173/2014
IA/15177/2014
IA/15183/2014
IA/15191/2014

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 29 July 2016
On 01 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

Krzysztof [K] (1)
Monika [K] (2)
[I K] (3)
[B K] (4)
[M K] (5)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Unrepresented
For the Respondent: Mr M Diwnycz, a Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This appeal to the Upper Tribunal was heard on 18th March 2016 when I found a material error of law but fixed a further hearing at which the appellants were to adduce further evidence and make additional submissions.
2 The background to the appeal hearing on the above date is set out in the earlier decision. I will adopt the nomenclature and abbreviations in that decision.
3. At the adjourned hearing the appellants attended but were unrepresented. Mr Diwnycz continued to represent the respondent.
3. I heard submissions and evidence by the appellants who explained that the second appellant had the benefit of a social pension from Poland. I also heard evidence about the parties work histories, which were far from straightforward.
4. At the end of the hearing I reserved my decision which I will later give after the following discussion.
Discussion
5. The appellants are required to show that as EEA nationals they have resided in the UK in accordance with the 2006 Regulations for a continuous period of five years. This may be as a family member of an EEA national, a worker or a self-employed person who has ceased that activity or a family member of a worker or self-employed person who has ceased that activity. Unfortunately, the evidence is complex and it is unsurprising that the respondent was unable to find that the requirements of Regulation 15 of the EEA Regulations were met. However, I have had an opportunity to review the evidence having had the benefit of an oral explanation by Mr and Mrs Kopacynski who attended two hearings before me. Although Mr Diwnycz had an opportunity to challenge their evidence, essentially, he did not do so. Unfortunately, at both hearings, Mr Diwnycz faced a substantial bundle of documents produced by the appellants. By the end of the appeal process it was far from clear which documents had been disclosed at what time. I have attempted to make sense of the substantial bundle of documents produced. Had they been represented I would have required much closer adherence to the rules but as they are unrepresented I allowed them considerable leeway in presenting their case.
6. I understand that the first twelve months of the five year continuous period required by Regulation 15 is not in issue. The first appellant believes that this period began in or about April 2007 when he describes himself as being self-employed but seeking work. He does not explain the nature of his self-employment. However, he did obtain employment in May 2007 and has produced a self-assessment calculation to prove it. That covers the period until October 2008. As the first appellant pointed out, the Regulations do not require the five year period to be calculated from the date that an appellant arrived into the UK (in this case 26 September 2006).
7. In addition to his work on a self-employed basis the first appellant worked for Best Connection from 6 October 2007. However, in his response to the respondent's appeal the first appellant explained that the registration certificate for the above period of employment with Best Connection predated the commencement of that employment. It was in fact dated on 10 June 2007. It seems that at some stage the first appellant worked for the Magnet Group but it is not clear when he started working for that company. What is clear, or at least clearer, is that the employment with Magnet Group started on 14 January 2008 and came to an end on 27 November 2008 when he was made redundant.
8. Following that event he did not register as a job seeker. According to the above chronology, based on the first appellant's response to the respondent's appeal, the appellant was therefore employed or at least in some form of employment between April 2007 and November 2008, a period of approximately eighteen months.
9. Turning to the second appellant's employment history, this appears more straightforward. On 1 May 2009 the second appellant started working for Clipper Logistics. This continued until 23 April 2010 when she started in self-employment. She told me that she had become a paralegal and produced documents to confirm this.
10. The aggregate of the first appellant's period of employment and the second appellant's period of employment and self-employment is a continuous period of five years from April 2007 to April 2012. Therefore, when they made their application to the respondent for a document certifying their right to permanent residence in the UK on 19 January 2014 they had been continuously residing in the UK for a period of five years exercising Treaty rights.
11. The second reason for refusal given by the respondent was that the appellants had not provided evidence that they held comprehensive sickness insurance in the UK during the period of their residence in self-sufficiency. This is stipulated by Regulation 4 which deals with "a self-sufficient person". This is defined as a person who has -
"(i) sufficient resources not to become a burden on the social assistance system of the UK ...; and
(ii) comprehensive sickness insurance cover in the UK."
12. The respondent was concerned that no such documentation had been supplied.
13. However, the second appellant provided a social insurance certificate which she had translated from Polish. This document seems to have been produced for the first time at the appeal hearing. Nevertheless, Mr Diwnycz did not object to me taking account of its contents. There was also a document confirming her pension entitlement.
14 Finally, the appellants stated that they had supplied utility bills, bank statements and P60s for the relevant period. Mr Diwnycz was not in a position to contradict this.
15. I must now consider whether the evidence supplied was sufficient to satisfy the requirements of the 2006 Regulations.
Conclusions
16. Having carefully reviewed the evidence it is sufficient to establish that the appellants were indeed exercising Treaty rights in the UK for the full period of five years as stipulated by the Regulations. The evidence is disparate but taken cumulatively, it satisfies the requirements of the Regulations.
17. Secondly, there was sufficient evidence of sickness insurance in the form of the social pension card produced at the hearing, which, as Mr Diwnycz confirmed, appeared to be in order.
18. Accordingly, the original decision, although it contains an error of law, ultimately reached the correct result.

Notice of Decision
Having preciously allowed the respondent's appeal against the decision of the FTT to the extent that I found a material error of law on 18th May 2016 I have now decided to re-make the decision. I have decided to allow the appellants' appeal against the respondent's refusal to issue a residence card.
I make no anonymity direction and no fee award.
The reason for the latter decision is that the documentation is still very unclear. Had clear documentation been supplied in the first place much of the costs and delay that has been occasioned would have been avoided.
No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Hanbury

TO THE RESPONDENT
FEE AWARD
As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award but have decided to make no fee award.

Signed Date

Deputy Upper Tribunal Judge Hanbury