Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18397/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 19 January 2017
On 23 January 2017

Before:

UPPER TRIBUNAL JUDGE GILL

Between

Malik Suhail Bin Liaqat
(ANONYMITY ORDER NOT MADE)

Appellant

And

The Secretary of State for the Home Department
Respondent

Representation:

For the Appellant: Mr. A. Chohan, of Counsel, instructed by S.Z. Solicitors.
For the Respondent: S. Walker, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, a national of Pakistan born on 8 October 1977, appeals against a decision of Judge of the First-tier Tribunal Onoufriou who, in a decision promulgated on 12 August 2016, dismissed his appeal against a decision of the respondent of 6 May 2015 to refuse his application of 1 August 2014 for a permanent residence card as confirmation of his right to reside in the United Kingdom under European community Law as the spouse of a Ms Klaudia Eliza Platkowska (the "sponsor"), a national of Poland born on 16 June 1990, exercising Treaty rights in the United Kingdom as an a European Economic Area ("EEA") national under regulation 15(1)(b) of the Immigration (EEA) Regulations 2006 (the "2006 Regulations").
2. The respondent refused the application because she was not satisfied that the sponsor was exercising Treaty rights in the period from July 2009 to March 2012 (the "first issue"). In addition, she considered that it was necessary for the appellant to submit evidence that the sponsor had completed a full 12 months with the same employer under the Worker Registration Scheme ("WRS"). She considered that the appellant had not submitted evidence that the sponsor had completed 12 months on the WRS as required for Polish nationals (the "second issue").
3. The appellant and the sponsor were married on 15 May 2009. They divorced on 3 December 2014.
4. At the hearing before the judge, the appellant was represented by Mr R. Parkin, of Counsel. The respondent was not represented.
5. The judge's Record of Proceedings records that, in relation to the second issue, Mr Parkin made submissions as follows:
"Can't demonstrate directly WRS but see p30 of main bundle permitting sponsor to stay in UK which is a precondition that WRS obtained. Home Office may say W may not have completed it. Strong inference that WRS completed ?"
6. The judge found that the marriage had lasted for more than 3 years and that at least one year of the marriage was in the United Kingdom. He was also satisfied that the sponsor had been working for a continuous period of five years and therefore that she had been exercising Treaty rights for a continuous period of 5 years. He therefore decided the first issue in the appellant's favour.
7. In relation to the second issue, the judge said as follows at para 15 of his decision:
"? the issue remained as to whether [the sponsor] had completed twelve months on the Worker Registration Scheme as required for Polish, and certain the EEA nationals. The respondent stated that there was no evidence produced to this effect. Mr Parkin had pointed out the sponsor's passport shows she was granted a residence certificate on 9th May 2007 and that this implied that she had produced her WRS registration. However my interpretation of the terms of the WRS is that the registration certificate needs to be provided for permanent residence and not a residence certificate. Therefore, the appellant's wife's registration certificate of 9th May 2007 does not imply that she registered under the WRS. It would therefore appear that this aspect of the requirements has not been fulfilled and therefore, on this basis, the appellant's appeal is refused."
(my emphasis)
8. Nowhere in the grounds of appeal to the First-tier Tribunal ("FtT") or the skeleton argument for the hearing before the FtT or in Mr Parkin's oral submissions at the hearing was it contended that it was not necessary for the sponsor to have registered on the WRS. The argument advanced was that the fact that the sponsor had been issued a permanent residence card implied that she had registered on the WRS, which is not the same argument.
9. The grounds submitted in support of the application to the FtT for permission to appeal advanced the same argument as was advanced before the judge, that the fact that sponsor had had a residence card issued on 9 May 2007 shows that she had satisfied the requirements of the WRS. The grounds refer to page 11 of the Home Office UK Border Agency's guidance (hereafter the "Guidance") entitled: "Living and Working in the UK, Rights and responsibilities of nationals from the new members states from January May 2004" - which states as follows:

"What are the benefits of registering on the Worker Registration Scheme
Once you have been working lawfully in the UK for 12 months, without interruption, you will have full free movement rights and will no longer need to register on the Worker Registration Scheme. You can get an EEA registration certificate confirming your right to live in the UK under European Community law."
10. The Guidance was attached to the application for permission to appeal to the Upper Tribunal. It was not before the judge.
11. At the hearing before me, Mr Chohan submitted that the judge had erred in deciding the appeal on the basis that it was necessary for the sponsor to produce evidence that she had been registered on the WRS for a period of 12 months or at all. He submitted that evidence of registration on the WRS was only necessary if the 12-month period of registration was part of the qualifying period. The WRS was a scheme that was in force from 1 May 2004 until 2009, and then extended for 2 years. The decision in the instant case was made on 6 May 2015. The WRS had ended by the time the appellant was issued with his family permit on 13 November 2012, following his successful appeal against an earlier decision.
12. In addition, Mr Chohan relied upon the extract from the Guidance that I have quoted at my para 9 above. He submitted that, given that the sponsor's residence card was issued on 9 May 2007, the paragraph quoted above shows that she had in any event been registered on the WRS.
13. Mr. Walker informed me that, if I permitted Mr Chohan to argue that it was not a requirement for the appellant to produce evidence of the sponsor having been registered on the WRS for 12 months, he would have to take instructions.
14. I asked Mr Chohan why I should permit him to advance this argument, given that this had not been advanced in the grounds of appeal to the FtT, the skeleton argument that was before the FtT or Mr. Parkin's submissions before the FtT, nor in the grounds of application for permission to appeal to the Upper Tribunal. There had been no application for permission to rely upon the new argument and no notice given to the respondent of it.
15. Mr Chohan submitted that he should be permitted to rely upon the new argument even if this meant that Mr. Walker had to take instructions. I refused him permission to rely upon the grounds for reasons which I will give in this decision. I then asked Mr Chohan to address me on the grounds as lodged.
16. Mr Chohan then proceeded to advance the very same arguments but in the context of his submission that, notwithstanding the fact that the appellant was represented by Counsel and that Counsel had not submitted a copy of the Guidance, it was nevertheless the duty of the judge to familiarise himself with the relevant rules for the WRS and obtain for himself the Guidance which was a document in the public domain. He submitted that the judge should not simply have accepted the fact that Counsel for the appellant accepted the respondent's position, that it was necessary for the appellant to submit evidence that the sponsor had been registered with the WRS for 12 months. He should have done his own research because he could not otherwise have dispensed justice. Mr Chohan submitted that, if the judge had done so, he would have concluded that there was no requirement for registration under the WRS.
17. I have no hesitation in rejecting these ill-conceived submissions. Not only is it the case that the point was not an obvious one, especially considering the complexity of the rules and regulations relating to European Community law for EEA nationals and nationals of the accession countries, Mr Chohan's submission, if accepted, would impose a very onerous duty on judges in the First-tier Tribunal. There is no duty on judges to embark upon such research or the type of exercise suggested by Mr Chohan, notwithstanding his submission that the Guidance was in the public domain.
18. Furthermore, and in any event, the fact is that, following the conclusion of the hearing, I attempted to download a copy of the Guidance not because I was doing my own research but simply in order to "copy and paste" from the Guidance the text quoted at my para 9 above. I simply could not locate the Guidance. Thus, even if it can be said that there was a duty (which I do not accept) on the judge to do his own research or familiarise himself with the relevant rules as to the circumstances in which registration on the WRS is necessary and the circumstances in which it is unnecessary, the judge could not have readily located the Guidance unless, by coincidence, he entered the right words in the search facility.
19. My reasons for refusing permission to rely upon the new argument summarised at my para 13 above are as follows:
i. This argument was not advanced in the grounds of appeal to the FtT, the skeleton argument that was before the FtT or Mr. Parkin's submissions before the First-tier Tribunal. Accordingly, the judge cannot arguably be said to have erred in law by failing to consider an argument not made before him.
ii. The argument was not advanced in the grounds of application for permission to appeal to the Upper Tribunal. There had been no application for permission to rely upon the new argument before the hearing. Indeed, none was even made at the hearing before me.
iii. I considered the overriding objective in rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (Upper Tribunal Rules) to deal with cases "fairly and justly". Mr Chohan informed me that he had only been recently instructed. Be that as it may, the fact is that the appellant had had more than ample time to raise this argument and has failed, at every step, to take that opportunity until this last possible moment. In these circumstances, even if he is refused permission to rely upon this ground, it cannot be said that his appeal has not been decided fairly and justly.
iv. In relation to the merits of Mr Chohan's submission that it was not necessary for the appellant to produce evidence that the sponsor had been registered on the WRS, he did not address the observation of the judge at para 15 of his decision that: "? my interpretation of the terms of the WRS is that the registration certificate needs to be provided for permanent residence and not a residence certificate".
20. For the reasons given at para 19 above, in particular para 19.ivv, it has not been shown that the judge materially erred in law.

Decision

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

Signed Date: 20 January 2017
Upper Tribunal Judge Gill