Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/24894/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27th April 2017
On 28th April 2017

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

MR ADAM GARRETT ALEXANDER CROMWELL GARRIE
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms J Rothwell (instructed by Gulbenkian Andonian Solicitors)
For the Respondent: Mr S Kotas (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is an appeal to the Upper Tribunal by the Appellant in relation to a decision of the First-tier Tribunal (Judge Moxon) promulgated on 21st September 2016 in which he dismissed his appeal against the Secretary of State’s decision, taken on 30th June 2015, to refuse his application for a residence card as the family member of an EEA national exercising Treaty rights in the UK.
2. The application was refused by the Secretary of State because the appellant had not produced a valid national passport or national identity card for his EEA national sponsor to demonstrate that his EEA family member is a qualified person in the United Kingdom. It was refused under Regulation 17(1)(a) with reference to Regulation 6. The Secretary of State also indicated that he had no right of appeal against that decision.
3. The appeal came before Judge Moxon on 5 September 2016. The appellant is a citizen of the United States and he had applied as the civil partner of an Estonian national.
4. The Judge noted that by letter dated 1 September 2016 the appellant had applied for an adjournment on the basis that he was a key organiser and promoter of an exhibition which required his attendance every day between 24th August 2016 and 11th October 2016. The adjournment application had already been refused administratively and notification of that refusal sent on 2nd September 2016. The refusal notice indicated that the date of hearing had been notified to the appellants in June and there was no reason why the appellant could not have arranged his absence from the exhibition that day.
5. Notwithstanding the refusal of the adjournment, neither the appellant nor the sponsor attended the hearing. The Judge found that the appellant had absented himself and he did not accept that he had good reason for doing so. He did not accept that he could not have arranged his absence from the exhibition and that there was no evidence from him or anyone else as to why he could not take a day away and why alternative arrangements could not have been made.
6. The Judge then noted that the respondent’s refusal was unambiguous; the appellant had been required to provide certain documents. He had had the opportunity to do so and notwithstanding the fact that he had served a bundle of some 165 pages, he had not provided statements from himself or his sponsor. He found that the appellant had had every opportunity to engage in the proceedings but had, without good reason, failed to do so. He also noted that the decision was made over a year before the hearing and he did not accept there was any merit in delaying the matter further and decided to proceed.
7. The Judge set out the requirements of Regulation 17 and found at paragraph 32 that the appellant had failed to satisfy the requirement of Regulation 17 to provide sponsor’s passport. He said that the wording of the Regulation was clear that the passport is required and not a notarised copy. In that he made an error. It is quite clear that the requirements of Regulation 17 are for the applicant to provide a valid passport, not his sponsor. He must also provide proof that he is a family member of an EEA national however. Notwithstanding that error the Judge did not find that there was no right of appeal under Regulation 26 and considered the substantive appeal. He noted that there was insufficient evidence to establish that the appellant’s sponsor was a qualified person. Indeed, he found at paragraph 34 that there was no evidence before him that the sponsor was even in the United Kingdom. That was a finding entirely open to him upon the evidence. Regulation 17 requires the appellant to provide a valid passport but it also requires the appellant to prove that he is a family member of an EEA national exercising Treaty rights and that he signally failed to do.
8. The appellant had been aware since the date of the decision that the issue of his sponsor’s passport was a matter that troubled the Secretary of State. A notarised copy had been provided but not the original. The appellant had had 12 months in which to produce the original passport and failed to do so - even at the hearing. An obvious conclusion to be drawn from that is that if the original passport was not available it may well be because it was not in the UK. The lack of evidence from the sponsor and lack of his attendance at the hearing would support that view.
9. Accordingly, therefore the Judge was entitled to find, as he did, that the appellant had not satisfied the requirements of Regulation 17. He did not fail on the basis of that he had failed to provide a valid passport, rather he failed on the basis that he had not proved that he was a family member of a qualified person. I can discern no error of law in his reasoning in that regard. The appellant had ample time to address the concerns of the Secretary of State. He and his sponsor could have attended the hearing and allayed any concerns; they chose not to do so. The fact that the appeal was dismissed was entirely the result of inaction by the appellant and sponsor and not by any error of law by the Judge.
10. The appeal to the Upper Tribunal is dismissed.

Notice of Decision

The appeal is dismissed.

I make no anonymity direction

Signed Date 27th April 2017

Upper Tribunal Judge Martin