Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal no: ia/26136/2015

THE IMMIGRATION ACTS

At
Decision & Reasons Promulgated
On 10.01.2017
On 11.01.2017

Before:
Upper Tribunal Judge
John FREEMAN
Between:
Mike Femi AYENITAJU
appellant
and

respondent
Representation:
For the appellant: Mr Olu Ogunnowo, solicitor, Allison, Chelmsford
For the respondent: Miss Julie Isherwood

DECISION AND REASONS
This is an appeal, by the , against the decision of the First-tier Tribunal (Judge Jessica Pacey), sitting at Birmingham on 21 June 2016, to an EEA residence card appeal by a citizen of Nigeria, born in 1970. The appellant had had a card from 2010 as the husband of a French citizen, but they had been divorced on 4 April 2014, and his application for a permanent residence card on the basis of his retained right of residence was refused, and the current one revoked.
2. The point on which the judge dismissed the appeal was that she was not satisfied that the appellant's wife had been a 'qualified person' at the date of their divorce, the relevant date following Samsam (EEA: revocation and retained rights) Syria [2011] UKUT 00165 (IAC), re-affirmed in Ahmed (Amos; Zambrano; reg 15A(3)(c) 2006 EEA Regs) [2013] UKUT 00089 (IAC). The judge had before her payslips or other evidence showing the appellant's wife had been in work, apparently up to April 2013, the date claimed at section 7 of his application form; but she did not have such evidence to cover the date of the divorce.
3. At paragraph 6 the judge noted the appellant's evidence that she had been obstructive; but at paragraph 10 she declined to accept that, because the appellant had nevertheless been able to provide copies of bank statements for his wife going up to 26 August 2014, so after their divorce. The judge took the view that this showed they were on amicable enough terms for the appellant's wife to be prepared to co-operate with him. For whatever reason, though, there was no relevant evidence before the judge covering the date of the divorce.
4. The grounds of appeal to the Upper Tribunal rely first on what is said to have been a mistake of fact by the judge, since the appellant only had the bank statements because Royal Mail had delivered them to the former matrimonial home. Whether that is right or wrong, however, the appellant still needed, following Samsam, to provide the necessary evidence as of the date of the divorce.
5. So I turn to the second ground of appeal, which is that the judge should have required the Home Office to investigate the wife's employment situation through Revenue or other sources themselves. While that is contrary to the general principle in Samsam that the appellant needed to provide the necessary evidence himself, I am prepared to treat that principle as modified to the extent of the relevant Home Office guidance, set out in 'Family members of ? EEA nationals who have retained the right of residence' (7 April 2015), on which Mr Ogunnowo relied.
6. At p 31 that guidance recognizes the difficulties faced by applicants where their relationship with an EEA sponsor has broken down. It gives two examples, first where there has been domestic violence, not relevant in this case; and second, "Where the applicant's relationship has ended acrimoniously, but they have provided evidence to show that they have made every effort to provide the required documents ?". There had been no such evidence before the decision-maker here; but, even if there had been, their resulting duties were limited to those set out at the top of p 32: the instructions to them were to
consider each case on its merits; and
if you are satisfied the applicant cannot get the evidence themselves, make enquiries on their behalf where possible ?
7. In this case, as Mr Ogunnowo conceded, there had been no request by the appellant to the Home Office to make those enquiries. I asked him how then they could have been satisfied that he could not get the evidence himself. Since the appellant's grounds of appeal to the First-tier Tribunal contained nothing about any difficulties he might have had in providing the necessary evidence, Mr Ogunnowo was reduced to suggesting that the points made in the grounds of appeal to the Upper Tribunal put the Home Office under the duty set out in the guidance.
8. While that might possibly have been the case, if I had found any material error of law in the judge's decision such as to lead to my re-making it, the question before me now is whether there was such an error. However, without any request from the appellant to the Home Office to make enquiries of their own from the Revenue, it does not seem to me that the judge was wrong to deal with the case on the evidence before her.
9. It follows that, whether the judge was right or wrong to make the inference she did about continuing co-operation between the appellant and his wife, she was unarguably entitled, on the rest of her findings of fact, to dismiss the appeal.
Appeal
(a judge of the Upper Tribunal)