Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18707/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 16 December 2016
On 20 January 2017

Before

MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE DEANS

Between

MRS HALA ABDALLA DAFALA MUHAMED
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr M Ndubuisi, Drummond Miller, Solicitors
For the Respondent: Mrs M O'Brien, Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against a decision by Judge of the First-tier Tribunal Handley dismissing an appeal against refusal of a residence card under the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations").

2. The appellant was born on 3 May 1976 and is a national of Sudan. Her husband, who is the sponsor in this appeal, is a national of the Netherlands. The application was refused by the Secretary of State because the Secretary of State was not satisfied that the sponsor was a qualified person. The Judge of the First-tier Tribunal accepted that the sponsor was temporarily unable to work after suffering an injury. The judge nevertheless considered that the sponsor did not satisfy the requirements of regulation 6(2)(a) of the EEA Regulations as a worker temporarily unable to work because of illness or accident because he had not been employed in the UK for a year or more before becoming unemployed.

3. Permission to appeal was granted by the Upper Tribunal on the basis that it was arguable that the Judge of the First-tier Tribunal had conflated the requirements of regulation 6(2)(a) with those of regulation 6(2)(b). The judge appeared to accept that the sponsor had had to cease work after suffering an injury and that he was not permanently unfit for work. If these requirements were met it was at least arguable that the judge was bound to find that the sponsor met regulation 6(2)(a). Instead of allowing the appeal, however, the judge appeared to have imposed a requirement that the sponsor should have worked in the UK for one year before becoming unable to work. This was a requirement of regulation 6(2)(b) and not of 6(2)(a) - these sub-paragraphs being in the alternative.

4. A rule 24 notice dated 12 August 2016 was lodged on behalf of the respondent. This contended that on the factual matrix the judge could have only dismissed the appeal. The evidence was that the sponsor had stopped working in May 2009 having worked for less than a year. He had not looked for work since. He claimed to be incapacitated from further employment. It was clear that his condition was permanent and the judge was wrong to conclude it was temporary. The appeal should have been considered under regulation 5, relating to workers or self-employed persons who have ceased activity, the requirements of which could not be satisfied.

5. At the hearing before us it was pointed out that the judge's finding was that the incapacity was temporary rather than permanent. Mr Ndubuisi pointed out that as this temporary incapacity had continued for five years the appellant was entitled to a permanent residence card.

6. We note that the judge's findings at paragraph 17 included a finding that since his injury the sponsor had been seeking employment in the United Kingdom and that he had a genuine chance of being employed in the future. He was not permanently unfit for work. The sponsor was in receipt of Employment and Support Allowance (ESA) and as such he was required to take part in work-focused interviews. He would have a personal adviser who would assist him to take reasonable steps to move towards work. Medical evidence from December 2013 showed that the sponsor was on an orthopaedics waiting list and was due to attend for day care submission in January 2014. The sponsor had appointments to meet with a consultant in orthopaedics in March 2014 and May 2015. The judge observed that those who applied for ESA undergo a work capability assessment, after which the applicant for ESA is either placed in a "work-related activity group" or a "support group". The evidence showed that the sponsor was in a work-related activity group and was therefore considered to be capable of returning to work. The judge inferred from this that there was a realistic prospect that the sponsor would be able to return to work in the future. It was not argued before us directly that the judge was wrong to find that the sponsor was temporarily unable to work rather than permanently incapacitated. It was not disputed that the judge had misinterpreted regulation 6 to impose an additional requirement under regulation 6(2)(a) that the sponsor should have been employed for one year or more before becoming unemployed. This requirement did not apply to regulation 6 (2)(a). Accordingly the basis on which the judge had dismissed the appeal was erroneous.

7. We are satisfied that the Judge of the First-tier Tribunal erred in law by imposing a condition under regulation 6(2)(a) which did not apply to this provision. Accordingly the decision of the judge is set aside and re-made.

8. We are satisfied that for the reasons given by him the judge was entitled to find that the sponsor was temporarily unable to work. On the basis of the judge's findings the sponsor met the requirements of a qualified person under regulation 6(2)(a). As the appellant is a family member of a qualified person, the appeal should be allowed.

Conclusions

9. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

10. The decision is set aside.

11. We re-make the decision by allowing the appeal.

Anonymity

12. The First-tier Tribunal did not make an order for anonymity. We have not been asked to make such an order and we see no reason of substance for so doing.

Fee Award Note: This is not part of the decision

As no fee was paid or payable no fee award is made.

Signed Date

Upper Tribunal Judge Deans