Tribunal decisions

The decision

IAC-FH-LW-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27671/2015

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On 8 December 2016
On 18 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

Olabode Dauda Falade
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Lazar of Highland Solicitors
For the Respondent: Mr Harrison, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the appellant against a decision of the First-tier Tribunal (Judge Cope) dismissing his appeal against the respondent's decision of 15 July 2015 refusing to issue him with an EEA residence card as a family member of an EEA national who has retained the right of residence.
Background
2. The appellant is a citizen of Nigeria born on 1 January 1972. He first came to the UK on 12 February 2005. Subsequently, he met a Dutch citizen who was living in this country. A relationship developed and on 13 August 2008 they were married. The appellant was issued with a residence card on 9 September 2009 valid for five years. His wife was working as an office assistant but in 2009 she started her own hairdressing business. From 2011 the appellant worked as a manufacturing operator. On 23 October 2013 he returned home to discover his wife having an affair with another man. As a result of this incident she left the home the following day and the appellant has not seen her since. He started divorce proceedings in January 2014 and the decree absolute was issued on 19 May 2014. On 4 August 2014 he made an application for a further EEA residence card.
3. His application was refused as his EEA family member had failed to provide evidence that she was a qualified person as set out in reg. 6 of the Immigration (European Economic Area) Regulations 2006 ("the Regulations"). In the Reasons for Refusal Letter dated 15 July 2015 the respondent set the matter out more fully, saying that in order to qualify for a residence card an applicant must provide sufficient evidence to demonstrate that their EEA family member was exercising their treaty rights in the United Kingdom as defined under reg. 6 of the Regulations. The appellant had submitted a number of documents but the respondent was not satisfied that there was sufficient evidence to show that his wife had been economically active in the UK at the time of the application. The respondent said that if his wife was self-employed up until the date of divorce, she would have expected to see regular tax and national insurance contributions, HMRC self-assessments, invoices, advertising, business bank statements, accountancy letters and monthly accounts for her business.
The Hearing Before the First-tier Tribunal
4. The appellant appealed against the respondent's decision. He relied on the evidence referred to by the judge at [40] as follows:
"This evidence is in the form of thirteen receipts in the name of Daimarie Mobile Hairdresser from the period 8 January 2011 to 12 January 2014; various HMRC tax and national insurance documents from the period 27 October 2010 to March 2014; a business card in the name of Daimarie Mobile Hairdresser; and an e-mail dated 31 December 2013 from Nottingham Post classified advertisement agents, together with the advertisement in the name of Daimarie Mobile Hairdresser."
5. The judge identified the issue before him as whether as at the date of the termination of the marriage the appellant's wife was exercising treaty rights, whereas after that date the focus switched to the non-EEA national working or being self-employed as though an EEA national.
6. The judge was concerned about how some of the documents relied on had come into the possession of the appellant who had taken them from post sent to his wife where they had been living together. However, in the light of MB (Iran) [2012] UKUT 00019 he accepted that the evidence should be admitted and taken into account. However, for the reasons he gave in [56]-[64] he did not accept that the appellant was a credible witness or that the documents produced could be relied on. He said at [65] and [66]:
"65. I am afraid that the only conclusion that I can draw is that the appellant is not telling the truth about the circumstances of any contact or relationship that he had with Ms Allee up until the time that the decree absolute was issued in May 2014. I am therefore unable to accept his assertion that Ms Allee was in fact exercising treaty rights up until that time.
66. In any event there is quite simply no documentary evidence before me to show that Ms Allee was actually exercising treaty rights up until the date of the decree absolute - the last piece of documentary evidence in the form of receipts is dated 12 January 2014. Because the HMRC documentation by its nature is concerned with tax years, I do not consider that it shows that she was actually working or was self-employed in May 2014 as opposed to sometime earlier in the tax year 2013-2014."
7. It had been submitted on behalf of the appellant that where, as in the present case it was difficult to obtain relevant documents from the divorced EEA national spouse, then the respondent should assist by using s. 40 of the UK Borders Act 2007 ("the 2007 Act") to obtain relevant documentation from HMRC of Ms Allee's national insurance and tax documents to show whether she was working. The judge was referred to Amos v Secretary of State [2011] EWCA Civ 552 in support of this submission, but the judge took the view that this reliance was misplaced as Burnton LJ had made it very clear at paras 34ff that it was for an applicant to establish his case and that there was no duty on the respondent to carry out enquiries to assist him. The judge was accordingly not satisfied that the appellant had shown that his former wife was exercising treaty rights at the time of the decree absolute in May 2014 and he therefore failed to show that he was entitled to the issue of an EEA residence card under reg. 10(5) of the Regulations.
The Grounds and Submissions
8. In the grounds it is argued that the respondent ought to have exercised her powers under s. 40 of the 2007 Act to request evidence from HMRC, or in the alternative failed to consider or act on the policy guidance set out in "Family Members of European Economic Area (EEA) nationals who have retained the right of residence - V 2.0". This guidance suggested that in such cases the respondent must take a pragmatic approach in assisting applicants unable to supply evidence of their former partner's exercise of treaty rights. In his submissions Mr Lazar accepted that he could not rely on s. 40 of the 2007 Act as it simply provided that HMRC "may ... supply the Secretary of State with information" for various identified purposes. He accepted that he could not support an argument that the respondent ought to have exercised such powers in the present case. He also accepted that in Amos v Secretary of State the onus was on the appellant to establish his case. However, he submitted that the respondent had failed to take into account her published guidance that it was open to her to take a pragmatic approach in cases where an applicant was unable to obtain the documents needed to support an application. Had such assistance been given, so he argued, it might well be that there would be evidence to support the appellant's claim.
9. Mr Harrison submitted that it was for the respondent to decide whether and when to make enquiries on an applicant's behalf. The guidance imposed no obligation on the respondent and it was a matter of discretion in each particular case whether to make such inquiries.
Assessment of the Issues
10. The only ground being pursued by the appellant is the assertion that the respondent failed to follow her own policy guidance and should have made enquiries on his behalf. The grounds refer to the Tribunal judgment in R (Singh) v Secretary of State IJR [2016] UKUT 0058 as support for the proposition that the respondent's discretion is fettered by its own published policy. In that case it was argued on behalf of an applicant that the respondent failed to follow her policy "Requests for Removal Directions" which applied when a person had requested in a letter before action in judicial review proceedings that a removal decision been made. In fact, the judge was not satisfied that the applicant was able to show that any request falling within the terms of the policy had been made but I accept as a matter of principle that a discretion may be fettered by a subsequent published policy and that discretion will need to be exercised in accordance with that policy.
11. The policy relied on in the present case is set out at pages 31 and 32 of the instructions relating to family members of EEA nationals who have retained the right of residence. This indicates that regs. 16, 17 and 18 of the Regulations put the responsibility on the applicant to provide the necessary proof that they are eligible for a document to confirm their right of residence in the UK. This is entirely in accordance with the judgment in Amos v Secretary of State. The instructions go on to say that "In cases where there has been a breakdown in the relationship between the applicant and their EEA national sponsor, it may not always be possible to get the documents that are needed to support their application". Examples are given of such situations as where the applicant was a victim of domestic violence or where the relationship has ended acrimoniously but the applicant has provided evidence to show every effort is being made to provide the required documents, for example, by attempting to make contact with the EEA national during divorce proceedings.
12. The instruction then reads:
"When dealing with these cases you must take a pragmatic approach:
- 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. You must get the agreement of your senior caseworker before doing so."
13. The instructions say that where it is agreed that additional enquiries can be made the applicant must give as much detail as they can about the EEA national sponsor and if they can give the name of the employer or their place of study or existing records, the caseworker may contact the employer but adds that "you must base your decision whether to do so according to the facts of the individual case and with the agreement of a senior caseworker". It continues that if the caseworker decides not to get the information directly from the EEA national's employer or because the EEA national is self-employed, then the caseworker must make enquires with HMRC to try and gather the necessary information.
14. It is clear from these instructions that this is a matter for the caseworker to decide on the facts of each individual application. In the present case the appellant submitted documents in support of the application which were regarded as insufficient by the respondent who in the Reasons for Refusal Letter identified the kind of documents she would expect to see. However, the appellant did not seek any help from the respondent at that stage, nor had he done so previously. At the hearing of the appeal before the judge he relied on the documents previously submitted, but these were rejected for clear and cogent reasons as given by the judge.
15. I am not satisfied that these instructions fetter the respondent's discretion in how an application should be assessed save to indicate that a pragmatic approach must be taken. It is a requirement to consider each case on its merits and if satisfied that the applicant cannot get the evidence themselves, make enquiries on their behalf where possible. As I have already said in the present case the appellant never indicated that he could not get the evidence himself nor did he seek the respondent's assistance. I am satisfied that on the information and evidence before her the respondent was fully entitled to determine the application on the evidence produced. This is not a case where it can be said that she failed to follow her own instructions. The judge did not err in law by failing to consider whether the respondent had complied with these guidelines which in any event were not produced or relied on at the hearing before him. Had they been, he would inevitably have come to the same conclusion.

Decision
16. I am not satisfied that the judge erred in law and his decision stands. His findings and conclusions were properly open to him for the reasons he gave. No anonymity direction was made by the First-tier Tribunal.

Signed H J E Latter Date: 13 January 2017

Deputy Upper Tribunal Judge Latter