Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number IA252632014

THE IMMIGRATION ACTS

Heard at Field House Decision & Reasons promulgated
On 3 March 2016 On 10 June 2016

Before

Deputy Judge of the Upper Tribunal I. A. Lewis

Between

I S
(Anonymity order made)
Appellant
and

Secretary of State for the Home Department
Respondent
Representation
For the Appellant: Mr E Nicholson of Counsel instructed by BMAP.
For the Respondent: Ms N Willocks-Briscoe, Home Office Presenting Officer.

DECISION AND REASONS: ERROR OF LAW

1. This is an appeal against the decision of First-tier Tribunal Judge Moxon promulgated on 14 August 2015 dismissing the Appellant's appeal against a decision of the Respondent dated 3 June 2014 to refuse to issue a Residence Card.

Background

2. The Appellant is a national of Algeria born on [ ] 1980. His application for a Residence Card - and in turn his appeal - was based upon his relationship to [AO] (date of birth [ ] 1988), a national of Hungary, ('the sponsor') to whom he was married on 20 April 2013.

3. The background to the appeal is helpfully set out in summary at paragraph 2 of the decision of the First-tier Tribunal in the following terms:

"The Appellant entered the United Kingdom illegally by lorry from Algeria on 6 December 2006. He initially applied for a Residence Card in April 2013 but that was considered withdrawn due to the failure of he and the Sponsor to attend interviews with Home Office officials. He applied for a Residence Card on 17 October 2013 as the spouse of an EEA national, the Sponsor. That application was refused by the Respondent [on] 3 June 2014 who asserts:

1) The Appellant had failed to provide documentation to show that the Sponsor is a "qualified person"; and

2) The Appellant and the Respondent [sic - should, obviously, read Sponsor] are not in a genuine and subsisting relationship."

4. The basis of the Respondent's decision in respect of the marital relationship was expressed in these terms in the 'reasons for refusal' letter ('RFRL') of 3 June 2014:

"Furthermore in relation to your relationship our department must be satisfied that your relationship is genuine, we assess this by inviting applicants to attend a marriage interview.

In your previous application dated 05 April 2013 you were invited to attend an interview on 2 occasions but failed to do so and again you failed to attend with this application. As result of this we have doubts as to whether your relationship is genuine, if you were to submit another application then the procedure of conducting a marriage interview will be put in place again."

5. The Appellant appealed to the IAC.

6. The day before the hearing listed before Judge Moxon, the Appellant's representatives faxed the Tribunal to indicate that an application for an adjournment was to be made on the basis that the sponsor was abroad, having become pregnant and having returned to Hungary for her confinement. It was indicated that it had been expected that the sponsor would return to the UK in time for the hearing, but that she now had concerns about travelling with a very young child - it being said, with no greater specificity, that her child was born in July. In the event the application for an adjournment was not pursued, given in particular that the Judge drew to the Appellant's representative's attention the fact that there was a witness statement from the Sponsor, and no representative for the Respondent such that she would not have been cross-examined even if she had attended. (See further in this context paragraphs 4 and 5 of the decision of the First-tier Tribunal.)

7. The First-tier Tribunal Judge dismissed the Appellant's appeal for reasons set out in his 'Decision and Reasons'. The Judge did not find the Appellant to be credible (paragraph 29), was not satisfied that the relationship between the Appellant and the sponsor is genuine (conclusion stated at paragraph 36), and declared herself "satisfied on the balance of probabilities that the marriage is one of convenience" (paragraph 36). The Judge did accept that the sponsor was a 'worker' from 2 June 2014 until 28 February 2015 (paragraph 25), but did not otherwise accept that she was a self-employed person at the time of the application or decision (paragraph 24), or that she had subsequently been employed (paragraph 26).

8. The Appellant sought permission to appeal which was initially refused by First-tier Tribunal Judge M Davies on 15 December 2015, but subsequently granted by Upper Tribunal Judge Rintoul on 20 January 2016.

9. The grant of permission to appeal was in these terms:

"It is arguable that, in light of the decision in Agho v SSHD [2015] EWCA Civ 1198 and Rosa v SSHD [2016] EWCA Civ 14, both of which post-date the decision of First-tier Tribunal Judge Moxon (and the decision to refuse permission), that Judge Moxon misdirected himself on the law. Ground 1 is thus arguable. Ground 2 is also arguable.

Given [AO]'s employment history, the parties will be expected to address

1. The basis on which she was a qualified person after ceasing to work for ATK on 28 February 2015;

2. The extent to which she can benefit from Jessy St Prix v DWP [2014] CJEU C-507/12 (see Weldemichael [2015] UKUT 540);

3. The extent to which she has continuity of residence pursuant to regulation 3 (2) (c) of the Immigration (EEA) Regulations 2006."

10. It is to be noted that Ground 1, as referred to by Judge Rintoul, as drafted in Appellant's renewed application for permission to appeal carries the heading 'Misdirection as to burden of proof in relation to marriage of convenience (determination paras 6 to 12, 36)'. Ground 2 is headed 'Failure to make findings of fact in relation to material facts canvass matters material to his determination'.

Consideration

11. In respect of Ground 1 - which relates to the issue of 'marriage of convenience' - it is to be noted that in the Appellant's Skeleton Argument before the First-tier Tribunal (drafted by Mr Nicholson, dated 6 August 2015), it was emphasised that the Respondent had concluded in the RFRL that "we have doubts as to whether your relationship is genuine". The Skeleton Argument went on to submit, with reference to the Respondent's own internal guidance, that the burden of proving that a marriage was one of convenience rested upon the Respondent: the following was quoted from the guidance - "An applicant must show that they are the family member of an EEA national. This would usually come from a valid marriage certificate. If you suspect the marriage is one of convenience, it is for the Secretary of State to prove this" (Skeleton at paragraph 6). Further reference was made to the Respondent's European Casework Instructions (Skeleton at paragraph 7), and to the case of Papajorgji [2012] UKUT 00038 (IAC) (Skeleton at paragraph 8). In this latter regard the following passage from paragraph 37 was particularly emphasised: "It is not enough that the ECO honestly suspects there is a marriage of convenience; the claimant will only be disqualified if it is established that it is." With reference to the instant case, the Skeleton went on to argue that "The Respondent neither suggests that the Appellant's is a marriage of convenience nor relies upon any evidence to prove such an assertion" (paragraph 12), and asserts that "the Respondent has failed to discharge the evidential burden" (paragraph 13), whilst contending that in such circumstances there is no basis to conclude anything other than that the Appellant is the sponsor's family member within the meaning of the EEA Regulations.

12. It is indeed to be noted that the RFRL does not expressly make reference to the concept of a marriage of convenience at all. Nor, on its face, does it express a clear conclusion as to the nature of the marital relationship, but is rather couched in terms of doubt as to genuineness. In this context I note that the concept of a non-genuine marital relationship is not congruent with the concept of a marriage of convenience: it is for example possible for a genuine relationship to deteriorate to an extent that the marriage is in effect no longer a genuine marital relationship; however, a marriage of convenience within the meaning of immigration law is one which is a sham from the beginning and only entered into for immigration purposes.

13. As identified in the grant of permission to appeal, further clarification in respect of these matters has recently been provided in the cases of Agho and Rosa. In what appears to be an obiter dicta made without the benefit of submissions from the parties, but inevitably of significant persuasive weight, the Court of Appeal in Rosa made the following observations at paragraph 13:

"What it comes down to is that as a matter of principle a spouse establishes a prima facie case that he or she is a family member of an EEA national by providing the marriage certificate and the spouse's passport; that the legal burden is on the Secretary of State to show that any marriage thus proved is a marriage of convenience; and that that burden is not discharge merely by showing "reasonable suspicion". Of course in the usual way the evidential burden may shift to the applicant by proof of facts which justify the inference that the marriage is not genuine, and the facts giving rise to the inference may include a failure to answer a request for documentary proof of the genuineness of the marriage where grounds for suspicion have been raised. Although, as I say, the point was not argued before us, that approach seems to me to be correct - as does the UT's statement that the standard of proof must be the civil standard, as explained by the House of Lords in Re B (Children) [2008] UKHL 35".

14. Paragraph 13 of Agho is in the context of a discussion of Papajorgji and the "considerable reservations" expressed therein about the approach suggested in the earlier case of IS (Marriages of Convenience) Serbia [2008] UKAIT 31, wherein it was held that it was for an appellant to prove before an immigration judge that his marriage was not a marriage of convenience. As identified in Rosa (see below) the Court of Appeal in Agho preferred the clarification contained in Papajorgji.

15. In Rosa the matter was more authoritatively summarised at paragraph 24 in these terms in the judgement of Lord Justice Richards with which the other members of the Court agreed:

"In my judgement, the legal burden lies on the Secretary of State to prove that an otherwise valid marriage is a marriage of convenience so as to justify the refusal of an application for a residence card under the EEA Regulations. The reasoning to that effect in Papajorgji, as endorsed in Agho, is compelling."

16. Lord Justice Richards also observed that the key paragraph in IS Serbia "was seriously confused" (see paragraph 29). His Lordship went on to conclude, also at paragraph 29:

"The result that I think the tribunal must have intended is achieved if the legal burden of proof lies on the Secretary of State throughout but the evidential burden can shift, as explained in Papajorgji. In my judgement, that is the correct analysis."

17. Although the First-tier Tribunal Judge directed himself to Papajorgji, quoting "It is not enough that the ECO honestly suspects there is a marriage of convenience; the claimant will only be disqualified if it is established that it is" (Decision at paragraph 10), in my judgement it is not apparent that the Judge in practice applied the nuanced approach discussed in Papajorjgi and subsequently in Agho and Rosa. I note in particular, given what is said about the evidential burden, that on the facts here the Respondent did not either assert in terms that she had concluded that the Appellant had entered a marriage of convenience, or identify an evidential basis for such a conclusion - but rather in substance merely opined that the facts (non-attendance at interviews) justified a suspicion ("we have doubts", to quote the RFRL) of a non-genuine marital relationship. The Judge's own analysis of the relationship, set out at paragraphs 29-35, is essentially based on rejecting aspects of the Appellant's testimony and supporting evidence, and is not based on accepting any specific evidence advanced on behalf of the Respondent; indeed the Respondent advanced no such evidence beyond the circumstance of the non-attendance at interviews - which whilst justifying a suspicion did not amount to evidence of a sham marriage, and was not even contended by the Respondent to amount to evidence of a sham marriage.

18. It seems to me that both the decision of the Respondent, and in turn the decision of the First-tier Tribunal in substance follows the approach in IS Serbia: a suspicion having been raised, the Judge appears to have required the Appellant to prove that his marriage was not one of convenience rather than requiring the Respondent to prove it was - which would have required the Respondent to adduce some evidence beyond that which informed the suspicion (or "doubts"). In short, what is required is some positive evidence of a sham rather than the mere absence of evidence of a marriage genuinely entered into for reasons not related to immigration. As the Appellant puts it in his Grounds, there was an "absence of any evidence from the Respondent to prove the assertion (which she never made in any event)".

19. Accordingly I find a material error of law which is sufficient to require that the decision of the First-tier Tribunal be set aside.

20. I turn to the implications of this conclusion, in particular with reference to the issues identified as potentially requiring to be addressed, below. However, it is appropriate that I first consider the other basis of challenge brought by the Appellant.

21. Ground 2 comprises a sustained attack on the Judge's evaluation of evidence and fact-finding. It seems to me that in some part this constitutes what is essentially a disagreement of outcome; in other parts there is a theoretical riposte rather than an evidence based challenge - for example an assertion that people in offices in theory may sometimes be paid in cash, rather than an evidence-based assertion that the sponsor was indeed paid in cash; or possible explanations as to the significance of numbers appearing on payslips rather than evidence as to the actual meaning of such numbers. There are, however, aspects of the challenge which more obviously constitute submissions in respect of error of law, in particular submissions to the effect that the Judge failed to put to the Appellant potentially adverse matters not hitherto raised by the Respondent.

22. In the event it seems to me unnecessary to reach a concluded view on all elements of this aspect of the Appellant's challenge because I have concluded that the appeal will require to be reheard anew with all issues at large before a different First-tier Tribunal Judge.

23. As indicated at paragraph 19 above, the decision of the First-tier Tribunal requires to be set aside. In considering those matters identified by Judge Rintoul as likely necessary to be addressed, I find that further oral evidence will be required to be heard, and documentary evidence filed and served: see further below. Moreover, and irrespective of the particular bases of challenge raised by the Appellant in respect of the Judge's fact-finding - though nonetheless ultimately inter-related - there seems to me to be a more fundamental difficulty in respect of the procedure before the First-tier Tribunal.

24. In this latter regard I am troubled by the decision of the First-tier Tribunal Judge to proceed in the absence of the sponsor. Although it was not the sponsor's appeal it was very much her rights as an EEA national that were at the core of the appeal - and indeed formed the foundation of the Appellant's own claimed rights. This was not a case where the Judge was faced with an application for an adjournment and determined that no good reason for non-attendance had been given: indeed the Judge appears to have encouraged the Appellant's representative not to pursue an adjournment: see paragraph 5. Without more, and irrespective of the Appellant's willingness to proceed, it is difficult to see on what basis the First-tier Tribunal Judge determined that this was not a case that would have benefited both from the presence of a Presenting Officer and - as I say in circumstances where the Judge did not find as justification for proceeding that there was no good reason for the sponsor's absence - the presence of the sponsor: see the so-called 'Surendran' guidelines. The effect was that the sponsor's rights as an EEA national were determined in her absence.

25. Not only were there materials before the First-tier Tribunal purportedly relating to the sponsor's employment that were not previously before the Respondent (and in respect of which the Judge went on to make findings), but moreover, the Judge also had regard to factors not raised by the Respondent and not addressed in the sponsor's witness statement upon which the sponsor would likely have been able to offer testimony relevant to the marital relationship - in particular with regard to the issues surrounding her pregnancy, and in particular confusions/discrepancies in relation to relevant dates (e.g. see paragraphs 19, 20, 22), and the paternity of her child (paragraphs 21, 33).

26. This is not to say that in any EEA case where an EEA national sponsor whose rights are 'in play' is absent at an appeal hearing, or where the Respondent is not represented, or where both circumstances pertain, the appeal must be adjourned irrespective of the absence of any application for an adjournment. It is merely to recognise the reality of the particular facts and circumstances of this case, and the appropriateness of both affording the sponsor a further opportunity of attending and having the benefit of the input of the Respondent in respect of matters upon which the Respondent had not indicated a position. Indeed, it may well be that had an application for an adjournment been pursued, and the Judge refused it (perhaps for similar reasons given in his subsequent exploration of matters at paragraph 33 to the effect that there was no supporting medical evidence of either postnatal depression or any other issue that might impact upon the sponsor's ability to travel to the UK with or without her child), and subject to any issues in respect of cross-examination of the Appellant himself, it may have been open to the Tribunal to refuse the application for an adjournment and proceed in the sponsor's absence. However, that is not the procedure that was followed.

27. Looking at the matter in the round I am satisfied that there was a denial of natural justice to both the Appellant and the sponsor in proceeding with the appeal in the absence of the sponsor, and in making adverse evaluations of aspects of her evidence without adequate opportunity for the sponsor to address germane matters. Again this is not to deny that in general terms the Appellant and the sponsor had an opportunity to bring forward relevant evidence, in particular in respect of her exercise of Treaty Rights, but also in respect of their relationship; what they did not have the opportunity to address - and the sponsor in particular - were points then taken by the Judge in respect of certain aspects of such evidence, most notably the purported employment with London Flats For You Limited and the sponsor's pregnancy and the paternity of her child. Such matters are indeed raised in the grounds of challenge - though not specifically by reference to the sponsor's absence - and I find them to be of substance.

28. Notwithstanding the foregoing, I do not detect any particular error in the Judge's approach to the issue of the failure to attend any of the interviews arranged by the Respondent: see paragraphs 29-32, and I can understand his reasoning and conclusion as to the lack of credibility of the Appellant as set out at paragraph 29. Both the Appellant and the sponsor failed to attend interviews on 18 June 2013, 6 August 2013, and 7 May 2014 (paragraphs 17 and 18). Although explanations for non-attendance were offered by the Appellant, these were addressed at paragraphs 29-32 with the Judge concluding "I am therefore not satisfied that the Appellant and Sponsor had reasonable excuses for not attending those interviews". In my judgement, on the evidence available to the Judge, that was an entirely sustainable conclusion adequately reasoned across paragraphs 29-31.

29. However, such matters are not in themselves determinative of either the issue of 'marriage of convenience' or of the status of the sponsor as a 'qualified person'. In any event, given the flaws identified in the decision-making process it is not realistically possible to preserve any of the findings of primary fact - positive or adverse - in remaking the decision in the appeal.

30. In this latter regard I also have in mind the one favourable finding - "that the sponsor was a "worker" from 2 June 2014 up until the conclusion of her employment with ATK Diner Limited on 28 February 2015" (paragraph 25). I do not find it possible to reconcile the Judge's acceptance of the sponsor's credibility and the supporting evidence provided in this regard, with the Judge's rejection of the sponsor's testimony and supporting evidence in respect of previous and subsequent employment.

31. In this context it is appropriate that I draw to the attention of the parties one further matter that I have noticed from the documents on file, so that in advance of the rehearing either or both parties may consider whether they wish to look further into the matter and or offer any explanation. It is this: the accountancy firm, Zakroom Financial Services, purportedly used by the sponsor to prepare the profit and loss accounts submitted to the Respondent in support of the Appellant's application appears to operate out of the same address as the sponsor's purported most recent employer, London Flats For You Limited. This may just be coincidence, but if there is any connection then that might cast substantial doubt on the veracity not only of the documents in relation to the sponsor's self-employment and her employment with London Flats, but in relation to the veracity of other documents submitted by the Appellant, including the documents purported to relate to the sponsor's employment with ATK Diner Limited.

32. Such documents did not emerge until the appeal process - the purported date of commencement of employment with ATK pre-dated the Respondent's decision by one day - and to date there has been no formal position stated in respect of such documents by the Respondent. Indeed very little information is provided by either the Appellant or the sponsor as to the nature of such employment, and it is not apparent that the Respondent has run any company search on any of the sponsor's supposed employers to establish whether or not they were ever actually trading, or - given the possible connection between Zakroom Financial Services and London Flats, whether there might be any similar connection also with ATK by way of a common address or common directors or otherwise. It is not, for example, clear whether the address given on the Appellant's contract of employment with ATK Diner Ltd is the company's registered address, or the trading address.

33. Of course it is a matter for the Respondent as to the extent to which she wishes to consider further the evidence that has been filed in this appeal. It is, however, to be emphasised that much of the evidence comprises materials that were not part of the original application and were not considered in the RFRL, or seemingly otherwise. As it stands not only is the Appellant and the Tribunal faced with a degree of uncertainty as to the Respondent's exact position on the status of the marriage, but is also faced with no considered or reasoned position in respect of most of the supporting documentary evidence relating to whether or not the sponsor is a 'qualified person'. In the event that the Respondent does wish to look into such matters and state a position - and does so on the basis of maintaining the decision of 3 June 2014, rather than withdrawing it and making a fresh decision - it will be necessary to file and serve any further reasons for maintaining the refusal in good time to permit the Appellant an opportunity to address such matters within these proceedings.

34. I turn then to address those matters referred to in the grant of permission to appeal.

35. In doing so it is relevant to note that they are premised on two matters: that it has not been shown that the Appellant's marriage to the sponsor is a marriage of convenience; and the favourable finding of the First-tier Tribunal Judge in respect of the sponsor's employment with ATK.

36. For the reasons given above - essentially my broad acceptance that there is substance to aspects of the Appellant's challenge to the fact-finding of the First-tier Tribunal to an extent that none of the primary findings of fact, whether adverse or favourable, may safely be preserved - the latter premise no longer stands. It is required to be re-determined whether the sponsor has ever been a 'qualified person' within the meaning of the EEA Regulations.

37. As regards the former premise - that the marriage is not one of convenience - that is the natural corollary of the conclusion that the Judge erred in this regard, and that moreover the Respondent had neither asserted that there was a marriage of convenience, nor advanced any evidence to support such a notion in the decision. I recognise that it is entirely possible that the RFRL was infelicitously drafted - and indeed the Respondent's resistance of the challenge herein both by way of the Rule 24 response (dated 26 January 2016) and the submissions of Ms Willocks Briscoe sought to uphold the notion of a marriage of convenience - although it is not clear to me that this might not have been opportunistically in light of the First-tier Tribunal Judge's finding, rather than because that was the intended original decision. Going forward, it seems to me that it is appropriate that the Respondent now be required to state her position in this regard with clarity and reasons.

38. Be that as it may, and in deference to the helpful discussion in which both representatives participated, and the supplementary written submissions I invited after the hearing to assist in clarifying the applicable principles, it is appropriate that I say something further in respect of those matters referenced in the grant of permission to appeal.

39. The issues raised in the grant of permission to appeal relate to the circumstances of an EEA national present in the UK who ceases working in consequence of a pregnancy. (These issues were not canvassed before the First-tier Tribunal, and no reference is to be found to them in the decision of the First-tier Tribunal.)

40. A woman who removes herself from the job market by reason of her pregnancy, and is not otherwise a self-sufficient person or a student, on the face of it appears to cease to be a 'qualified person' within the meaning of regulation 6 of the EEA Regulations. Nor is such a person covered by regulation 5 - a worker or self-employed person who has ceased activity, because a pregnancy does not satisfy any of the conditions of subparagraphs (2)-(5), and does not thereby retain the status of a worker or self-employed person. Nor, initially, was it immediately apparent to me that the situation was covered by regulation 4, which does not overtly extend the status of 'worker' to a person who has ceased working by reason of pregnancy.

41. However, it is indeed within regulation 4 that the answer lies, by reference to the definition of worker at regulation 4(1)(a) - "'worker' means a worker within the meaning of Article 45 of the Treaty on the Functioning of the European Union". As identified at paragraph 15 of Weldemichael with reference to Jessy St Prix there is in fact a body of European caselaw which extends the meaning of 'worker' beyond those actually in work to include, amongst others "a woman who gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of child birth? provided she returns to work or finds another job within a reasonable period after the birth of her child". Necessarily, it follows that such a person does indeed (and contrary to my initial impression) continue to be a 'qualified person' within the meaning of regulation 6.

42. In Weldemichael the Tribunal considered what constituted 'the late stages of pregnancy', the 'aftermath of child birth' and the 'reasonable period' in which to return to work. The Tribunal's conclusions are helpfully set out in the headnote, which essentially replicates the summary at paragraph 59. The headnote reads:

"An EEA national woman will retain continuity of residence for the purposes of the Immigration (European Economic Area) Regulations 2006 (the 2006 EEA Regulations) for a period in which she was absent from working or job-seeking owing to the physical constraints of the late stages of pregnancy and the aftermath of childbirth if, in line with the decision of the CJEU in Jessy St Prix:
(a) at the beginning of the relevant period she was either a worker or seeking employment;
(b) the relevant period commenced no more than 11 weeks before the expected date of confinement (absent cogent evidence to the contrary that the woman was physically constrained from working or seeking work);
(c) the relevant period did not extend beyond 52 weeks; and,
(d) she returned to work.

So long as these requirements are met, there will be no breach of the continuity of residence for the purposes of regulation 15. Time spent in the United Kingdom during such periods counts for the purposes of acquiring permanent residence."

43. I pause to note that the key issue that arose in Weldemichael related to continuity of residence in the context of a claim to be entitled to permanent residence by reason of having been present in the UK pursuant to the Regulations for 5 years. Whilst status as a 'qualified person' and 'continuity of residence' are not inevitably congruent, on the particular facts and circumstances the continuity of residence did indeed depend upon having had the status of a worker at all material times, and therefore the ratio in Weldemichael is relevant to the issue of 'qualified person' that arises in the instant case.

44. The Respondent, by way of Ms Willocks-Briscoe's Written Submissions dated 9 March 2016 accepts in principle that where an EEA national can show that she was on maternity leave and her contract of employment is still subsisting, she will retain the status of worker, whether or not such maternity leave was paid or unpaid. However in the absence of a specific relevant contract of employment it is not accepted that the Appellant has demonstrated that the sponsor's terms of employment provided for maternity leave. As regards the possible continuing status as a worker by reference to the guidance provided in Weldemichael, the Respondent does not accept that it has been shown that the sponsor falls within the timetable. In particular it is submitted that the available evidence even if accepted as reliable and credible indicates that the sponsor ceased work more than 11 weeks prior to her expected date of confinement, and that accordingly her absence from employment cannot be classed as an absence due to the physical constraints of pregnancy.

45. Mr Nicholson, in his Further Submissions dated 10 March 2016, identifies that notwithstanding that the estimated date of confinement (or estimated date of delivery), was 27 August 2015, the sponsor's son was actually born on 6 July 2015. In this context Mr Nicholson argues "that it would be curious if in a case where a baby was born prematurely the mother could be deprived of the status of worker due to her leaving work earlier than the stipulated period", and prays in aid SSWP v SFF, ADR v SSWP, CS v LB Barnett & SSWP [2015] UKUT UT0502 (AAC).

46. It was recognised in SFF and others, as indeed it was in Weldemichael, that the notion of physical constraint arising in the late stages of pregnancy is fact specific, and accordingly whilst 11 weeks provided an appropriate yardstick a contrary proposition could be accepted on the facts of a particular case if supported by cogent evidence. For my own part, and bearing in mind both that it is not necessary for me to reach a conclusion in this regard, and I have not had the benefit of amplified submissions from either party, my initial observation is that I am not readily persuaded that the mere fact of a premature birth is cogent evidence of 'physical constraint' such that it would have been reasonable to give up work or seeking work 11 weeks prior to the expected date of delivery; more information and evidence is likely required to establish such a circumstance.

47. Nor in this context do I consider it appropriate in the light of the adverse credibility findings generally (which now must be reconsidered and remade), and the absence of translated documentation, to infer - as Mr Nicholson invites at paragraph 9 of his Further Submissions - from the Appellant's own assertions in respect of fertility treatment and the removal of an ovarian cyst, that there was any specific difficulty or problem with the actual pregnancy. Without more, such circumstantial matters even if established do not obviously provide cogent evidence to justify departing from the 11 week period specified in Weldemichael. The decision whether or not to do so will ultimately be a matter for evaluation by the First-tier Tribunal Judge to whom it falls to remake the decision in this appeal on the basis of all available evidence, which might be expected to include further medical evidence from those responsible for the care of the sponsor during and after her pregnancy, and will necessarily also involve consideration of the credibility of both the Appellant and the sponsor afresh.

48. Further to the above, and in any event, it is to be noted that Mr Nicholson's submissions are implicitly premised on the Appellant having been employed by London Flats up until just before her departure from the UK. The supporting evidence in this regard refers to the sponsor being on maternity leave from 1 June 2015. The First-tier Tribunal Judge did not accept that evidence (paragraphs 26-27). The Judge found that the Appellant had last worked on 28 February 2015 - which is considerably more than 11 weeks prior to both the estimated date of confinement and the actual date of giving birth. The Appellant's claim in this regard is inevitably premised on being able to establish that she was indeed employed by London Flats up until her departure for Hungary, or continues to be employed but is on unpaid maternity leave. Inevitably this underscores that it is not possible to remake the decision in the appeal without a rehearing with all issues at large.

49. As also identified in the grant of permission to appeal, there remains the issue of continuity of residence, with particular reference to regulation 3(2)(c). Regulation 3(2)(a) provides that continuity of residence is not affected by periods of absence from the UK not exceeding 6 months in total in any year, irrespective of reason. Regulation 3(2)(c) provides that continuity of residence is not affected by any one absence from the UK not exceeding 12 months "for an important reason such as pregnancy and childbirth". On the face of it, and on the premise that the sponsor has returned to the UK, this would not appear to be likely to be problematic for the Appellant and the sponsor. However, this is ultimately, again, a matter for the First-tier Tribunal Judge remaking the decision herein, who will no doubt expect to see some proof of the sponsor's departure and return within a timescale appropriate to the Regulations.

Summary

50. The decision of Judge Moxon contained a material error of law and requires to be set aside. In all the circumstances the decision in the appeal requires to be remade after a fresh consideration of all of the evidence with all issues at large, and the most appropriate forum in this regard is the First-tier Tribunal.

51. The following matters will likely require particular consideration by the parties, and in turn the First-tier Tribunal Judge to whom the task of remaking the decision falls. However, for the avoidance of any doubt I offer such matters as guidance only, and nothing herein is designed to constrain the jurisdiction or independence of the First-tier Tribunal Judge who will ultimately consider and determine all such matters as he or she thinks appropriate irrespective of any observations herein.

(i) The Respondent will need to clarify her position as to whether or not it is contended that the Appellant's marriage to the sponsor is a marriage of convenience.

(ii) If the marriage is not a marriage of convenience it will be necessary to consider the sponsor's status as a 'qualified person'. This will require findings in respect of her claimed employment history. It is plainly an issue between the parties as to whether the sponsor was ever a worker as claimed, and more particularly whether she was a worker at or just before the time she left for Hungary.

(iii) Moreover, given the sponsor's departure from work during her pregnancy it will be necessary to make findings as to relevant dates of ceasing to work and expected date of confinement. In particular it may be necessary to consider whether there is cogent evidence to justify relaxing the 11 week period identified in Weldemichael because of any issues in respect of her pregnancy such that she was physically constrained from working by reason of her pregnancy, for example because of complications or other factors relating to health risks to either herself or her unborn child.

(iv) It may also be necessary for the parties to address the issue of returning to work - which may in part depend upon any findings to be made in respect of previous employment (which if accepted might demonstrate a propensity to work, but if not accepted might demonstrate a propensity not to work), and may in part depend upon postpartum attitudes and any complication in relation to postnatal depression. There is no specific evidence currently before the Tribunal in respect of the sponsor's attitude to work subsequent to the birth of her child: the sponsor's witness statement of 14 January 2015 is silent on the issue. This is a matter that may very much turn on her oral testimony both in-chief and under cross-examination. (No further witness statement had been filed and served at the date of the hearing before me, and the sponsor was - again - not in attendance.)

(v) I pause to note in this context that the grant of permission to appeal carried with it an overt expectation that the Appellant would have been in a position to address such matters as are identified at (iii) and (iv) - both in terms of legal submission and more particularly supporting evidence - by the date of the hearing before the Upper Tribunal. This was not the case: in the event of a continuing failure to provide an evidential basis for any submissions in this regard, the Appellant might expect the Tribunal to draw an adverse inference, and in any event cannot reasonably expect to be permitted further time beyond the time inherent in relisting the case to obtain such evidence.

(vi) The parties may also need to address the issue of continuity of residence.

52. Further to the above, I make the following Directions.

Directions

(i) In the event that the Respondent undertakes any further checks on the documents filed in the appeal, or conducts any other inquiries or investigations relevant to the Appellant's application and appeal, (e.g. see paragraphs 31-33 above) the written results of any such inquiries are to be filed with the Tribunal and served on the Appellant, together with any relevant disclosable supporting materials within 28 days of the date of promulgation of this Decision.

(ii) The Respondent is in any event to state her position in respect of the status of the Appellant's marriage - specifically whether or not it is contended that it is a 'marriage of convenience'. If it is, the Respondent is also to state her reasons for such a conclusion. The Respondent's statement of her position in this regard, and any supporting reasons and any further supporting evidence are to be filed with the Tribunal and served on the Appellant within 28 days of the date of promulgation of this Decision.

(iii) The Appellant is to file with the Tribunal and serve on the Respondent any further evidence upon which he wishes to rely within 28 days of the date of promulgation of this Decision. In this context the Appellant and his advisers should give consideration to the contents of this Decision in identifying those areas where he might reasonably be expected to provide evidence to address relevant issues.

(iv) The appeal is not to be re-listed for hearing until at least 56 days after the promulgation of this Decision to provide adequate time for the parties to comply with Directions (i), (ii) and (iii) above, and to permit the parties a reasonable time to make any response pursuant to Direction (v) below, and also to consider any response thus received.

(v) The parties are at liberty to file and serve any further supporting statements or other supporting evidence in response to any materials filed by the other party up to 14 days prior to the re-listed hearing before the First-tier Tribunal.

(vi) Both parties are at liberty to seek variation in the timetable of these Directions - but the Appellant should be mindful of the observations at paragraph 51(v) above in respect of having already been afforded an opportunity of addressing the issues identified in the grant of permission to appeal herein.

53. Finally, because in the course of this decision I have of necessity expressed views as to the sustainable nature of some of the adverse findings of fact of the First-tier Tribunal Judge, I consider it appropriate that I recuse myself from remaking this decision in the First-tier Tribunal.

Notice of Decision

54. The decisions of the First-tier Tribunal contained a material error of law, and is set aside.

55. The decision in the appeal is to be remade before the First-tier Tribunal, before any First-tier Tribunal Judge other than First-tier Tribunal Judge Moxon or First-tier Tribunal Judge I A Lewis.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Deputy Judge of the Upper Tribunal I. A. Lewis 8 June 2016