Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17402/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 15 August 2016
On 16 August 2016

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

MARCELLA DAWN HAMMOND
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms P. Yong, Counsel instructed by Greenland Lawyers LLP
For the Respondent: Mr T. Wilding, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appealed against the respondent's decision dated 24 April 2015 to refuse to issue an EEA residence card recognising a retained right of residence following divorce. First-tier Tribunal Judge V. Jones ("the judge") dismissed the appeal in a decision promulgated on 29 January 2016.

2. The appellant applied for permission to appeal against the First-tier Tribunal decision on the following grounds:

(i) The judge erred in refusing to issue a direction to the respondent to make checks with HMRC pursuant to the case of Amos v SSHD [2011] EWCA Civ 55 and in refusing to adjourn the appeal to allow for such enquiries to be made. The first four grounds repeated the same point in different ways but essentially amounted to a single ground of appeal.

(ii) The judge erred in apparently requiring the appellant to show that she was cohabiting with the EEA sponsor at any time after the marriage contrary to the decision in Diatta v Land Berlin [1985] ECR 567.

3. First-tier Tribunal Judge Pullig granted permission to appeal on 05 July 2016 but limited the grant of permission to the second ground of appeal in the following terms:

"2. The grounds seeking permission are extensive. Ground 1 complains that the judge had wrongly refused to grant an adjournment and give directions that the respondent should obtain information from HMRC regarding the former spouse of the appellant exercising treaty rights and in that regard the issue of fairness. It is understandable that the judge refused that application because the decision had been made on 24 April 2015 and the hearing was on 14 January 2016 and, apparently, no steps had been taken to obtain such a direction until the hearing. The judge exercised her discretion properly and her decision discloses no arguable error of law. Grounds 2 and 3 flow from that and require no further consideration. Ground 4 also flows from that but also complains about the judge's approach to the appellant not being able to provide certain evidence or attend two interviews (which the appellant had failed to do but on advice). The grounds referred to EEA regulation 20B(4) with regard to an individual having a good reason for not doing so. The judge rejected her evidence as a good reason. I find that the judge was entitled to do so.

3. However, [she] found that there was no evidence that the appellant had lived with her sponsor for three years. Ground 5 says that [this] is wrong, referring to Diatta v Land Berlin [1985] ECR 567 that there is no such requirement. See also PM (EEA - spouse - "residing with") Turkey [2011] UKUT 89 (IAC). This I find to be an arguable error of law and on this ground I grant permission."

4. At the hearing Ms Yong applied for permission to be granted in relation to the first ground of appeal. She made extensive arguments as to why she considered it was arguable. She applied for an adjournment in order for the respondent to consider the issues raised in the first ground of appeal. I refused both applications for the following reasons:

(i) The proper procedure for appealing First-tier Tribunal Judge Pullig's decision to refuse permission in relation to the first ground should have been to make a written application to the Upper Tribunal within 14 days of the date his decision was sent in accordance with rule 21 of The Tribunal Procedure (Upper Tribunal) Rules 2008. No such application was made and any attempt to do so by way of an oral application is, without good reason, woefully out of time.

(ii) Although the Upper Tribunal has power to exercise discretion to grant permission at a hearing on grounds where permission has been refused, it would only be granted in limited circumstances. For example, where a decision to refuse permission is clearly wrong or there are other good reasons to grant permission in accordance with the overriding objective.

Despite the fact that there was evidence to show that the appellant wrote to the Home Office to ask for an HMRC check it was clearly open to Judge Pullig to take into account the fact that no request had been made to the First-tier Tribunal for an 'Amos direction' until the date of the hearing. It was open to Judge Pullig to refuse permission on that basis and I can see no good reason to reopen an issue that has already been decided and was not renewed to the Upper Tribunal through the proper procedures.

(iii) The adjournment request was refused. Mr Wilding was able to make oral submissions in relation to the application at the hearing.

Decision and reasons

5. The consequence of refusing the preliminary application is that the appeal against the First-tier Tribunal decision is limited to the second ground. I accept that any requirement of cohabitation would amount to an error of law in light of the decisions cited above. However, the judge found that the appellant did not produce sufficient evidence to discharge the burden of proof in relation to regulation 10(5)(b). The provision requires an appellant to be residing in the United Kingdom "in accordance with these regulations" at the date of the termination of the marriage, which includes evidence to show that the EEA national sponsor was likely to be exercising rights of free movement at the date of divorce. The evidence was lacking. As such, any error the judge made in relation to cohabitation would have made no material difference to the outcome of the appeal. The consequence of her sustainable and unsuccessfully challenged findings regarding regulation 10(5)(b) is that the outcome of the appeal would have been the same.

6. I conclude that the First-tier Tribunal did not involve the making of a material error on a point of law.

DECISION

The First-tier Tribunal decision did not involve the making of an error on a point of law
The First-tier Tribunal decision shall stand
Signed Date 15 August 2016
Upper Tribunal Judge Canavan