Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26455/2014

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision Promulgated
On 11 February 2015
On 16 February 2015

Before

DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between

TABISH QURESHI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Javed of Reiss Solicitors
For the Respondent: Ms C Johnstone Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. The Secretary of State for the Home Department brings this appeal but in order to avoid confusion the parties are referred to as they were in the First-tier Tribunal. This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge Fox promulgated on 24 October 2014 which allowed the Appellant's appeal.
Background
3. The Appellant was born on 19 August 1989 and is a national of Pakistan.
4. On 9 January 2014 the Appellant applied for a Permanent Residence Card as a family member of [HI] an EEA national.
5. On 6 June 2014 the Secretary of State refused the Appellant's application. The refusal letter gave a number of reasons by reference to Regulation 15 and 10(5) of the Immigration (EEA) Regulations 2006:
(a) The Appellant had failed to provide a valid passport or national ID card as evidence of the EEA national's identity.
(b) The Appellant had failed to provide evidence of his divorce from his EEA spouse.
(c) The Appellant had failed to provide evidence that his former wife was exercising free movement rights at the time of the divorce.
(d) The Appellant failed to provide evidence that the marriage lasted 3 years and they lived together for one year in the United Kingdom or he had been a victim of domestic violence.
(e) The Appellant failed to provide evidence that since the date of the divorce he had been a worker, self employed or self sufficient other than an undated letter of employment.
The Judge's Decision
6. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Fox ("the Judge") allowed the appeal. The Judge found :
(a) The Appellant was giving some thought to patching up his relationship with his wife who was an Austrian citizen.
(b) The Appellant was 'a regular inconsistent (sic) victim of domestic abuse at the hands of his EEA Sponsor.'
(c) He had difficulty in complying with the 'detailed requirements of the regulations.'
(d) He produced a photocopy of the EEA nationals ID card and an original payslip from Assists Recruitment and he was satisfied that the EEA national was exercising treaty rights in the United Kingdom.
(e) The Appellant had been living with his spouse for more than a year.
(f) The Appellant had secured employment with SSP United Kingdom.
(g) At paragraph 14 he found that 'the Netherlands (sic) qualify for a residence card' and at paragraph 15 'I am satisfied that a Residence Card should not be issued to the Appellant.'
(h) Paragraph 15 he considered the claim under the Human Rights Act 1998 and Article 8 and found the United Kingdom decision not to issue the Residence Card was disproportionate.
(i) Paragraph 17 the decision was not in accordance with the law and the applicable Immigration Rules.
7. Grounds of appeal were lodged and on 2 December 2014 First-tier Tribunal Judge Kelly gave permission to appeal on the basis that it was arguable that the Judge failed to state the ground on which the appeal was allowed as between his Treaty Rights or Article 8; that he made confused and contradictory findings in that at paragraphs 14 and 15 he found both that the Residence Card should, and should not be granted; failed to consider the basis on which a retained right of residence is acquired in particular whether the marriage was terminated; failed to consider the requirements for a permanent right of residence under Regulation 15.
8. At the hearing I heard submissions from Ms Johnstone on behalf of the Appellant that in essence:
(a) She relied on the grounds of appeal.
(b) There was a lack of clarity in the Judges findings.
(c) There was a lack of findings in relation to key issues.
(d) The Judge had failed to address the issue of whether there was a right of appeal under Regulation 26 although she conceded that this was not in the grounds of appeal.
9. On behalf of the Respondent Ms Javed submitted that :
(a) The contradictory findings could simply have been a typographical error.
(b) She conceded that the Judge had failed to make findings in relation to whether the marriage in question had been terminated.
Legal Framework
10. The provisions of the 2006 Regulations that were in issue are:
"Permanent right of residence
15. (1) The following persons shall acquire the right to reside in the United Kingdom permanently -
(f) a person who -
(i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and
(ii) was, at the end of that period, a family member who has retained the right of residence."
"Family member who has retained the right of residence"
10. (1) In these Regulations, "family member who has retained the right of residence" means, subject to paragraph (8), a person who satisfies the conditions in paragraph (2), (3), (4) or (5).
(5) A person satisfies the conditions in this paragraph if -
(a) he ceased to be a family member of a qualified person or of an EEA national with a permanent right of residence on the termination of the marriage or civil partnership of that person;
(b) he was residing in the United Kingdom in accordance with these Regulations at the date of the termination;
(c) he satisfies the condition in paragraph (6); and
(d) either -
(i) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration; ...
(iv) the continued right of residence in the United Kingdom of the person is warranted by particularly difficult circumstances, such as he or another family member having been a victim of domestic violence while the marriage or civil partnership was subsisting.
(6) The condition in this paragraph is that the person -
(a) is not an EEA national but would, if he were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or
(b) is the family member of a person who falls within paragraph (a)."
The Law
11. Errors of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on facts or evaluation or giving legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
12. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue under argument. Disagreement with an Immigrations Judge's factual conclusions, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence that was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration judge concludes that the story told is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Finding on Material Error
13. Having heard those submissions I reached the conclusion that the Tribunal made material errors of law.
14. This was an application by the Appellant for a Permanent Residence Card underpinned by his assertion that he and his wife had divorced. It was decided in OA (EEA - retained right of residence) Nigeria [2010] UKAIT 00003 and Amos v SSHD [2011] EWCA Civ 552 which the judge was directed to be the Presenting Officer that under Regulation 10 (5)(a) the phrase "termination of the marriage ?" can only mean the lawful ending of the marriage by legal proceedings (i.e. divorce); it cannot mean "breakdown of the marriage.' The refusal letter set out clearly that the Appellant had failed to establish that he was divorced. The Judge failed to make and finding in relation to this key issue and this was properly conceded by Ms Javed.
15. The Judge failed to refer to or make findings in relation to the requirement to establish whether the Appellant and his EEA national wife had exercised EEA rights for a continuous period of 5 years or adequately explain why he accepted one payslip was sufficient evidence in relation to this.
16. There is no clear finding in relation to whether the parties had lived together for a year: there is an assertion that this was the case but no indication of the evidential basis for that finding. Alternatively the findings in relation to the Appellant having been the victim of domestic violence were inadequate failed to set the basis for the conclusions reached.
17. The Judge made completely contradictory findings as to whether the Appellant should be granted a Residence Card under the EEA Regulations at paragraphs 14 and 15 and given the confused nature of his previous findings it is difficult to determine which is correct. The confusion is further confounded by the fact that even if it were accepted that he accepted the appeal should succeed under the EEA Regulations there would have been no requirement to go on to consider Article 8 as he did.
18. The failure of the First-tier Tribunal to address or determine with any or adequate reasoning whether the parties had been divorced, whether they had exercised treaty rights for 5 years and lived together for a year constitute a clear errors of law. The errors I consider to be material since had the Tribunal conducted this exercise the outcome could have been different. That in my view is the correct test to apply. The decision is therefore set aside in its entirety all matters to be determined afresh with none of the findings preserved.
19. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25th of September 2012 the case may be remitted to the First Tier Tribunal if the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
20. In this case I have determined that the case should be remitted because there is a complete absence of findings in relation to any of the issues in this case.
21. I consequently remit the matter back to the First-tier Tribunal sitting at Manchester to be heard on the 23 March 2015, before me.
22. I make the following directions for the resumed hearing :
a. Listed for 2 hours.
b. No interpreter required.

Signed Date 14.2.2015

Deputy Upper Tribunal Judge Birrell