Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28283/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7th March 2017
On 12th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MAHMOOD

Between

the Secretary of State for the Home Department
Appellant
and

Syed rizwan gilani
(anonymity direction not made)
Respondent

Representation:
For the Appellant: Mr P Armstrong, Senior Presenting Officer
For the Respondent: Mr J Gajjar of Counsel instructed by M-R Solicitors
(Larkshall Road)

DECISION AND REASONS
1. The original Appellant in this case was Mr Gilani, but for ease in following the decision I shall continue to refer to him as “the Appellant” and the Secretary of State as “the Respondent”, albeit it is the Secretary of State who brings this appeal.
2. The matter had come for a hearing before First-tier Tribunal Judge G Clarke sitting at Hatton Cross on 21st July 2016 and in a Decision and Reasons promulgated on 26th September 2016 he had allowed the appeal under the Immigration (EEA) Regulations 2006. This was against the Secretary of State’s decision to refuse him a residence card as confirmation of a right to reside in the United Kingdom under Regulation 10(5) of the Immigration (EEA) Regulations 2006. The Appellant had claimed that he was the former spouse of an EEA member.
3. The Secretary of State’s grounds had alleged that there had been a failure to give adequate reasons for findings in respect of material matters. In reality, there were two grounds, but ultimately First-tier Tribunal Judge Kelly had granted permission in respect of one.
4. It was said in the grant of permission of 27th January 2017:-
“It is arguable that the Tribunal erred in law by holding that the Appellant met the condition in Regulation 10(5)(a) of the 2006 Regulations given its findings that he had failed to prove that his ex-wife was working at the date of the divorce. Permission to appeal on that ground is accordingly granted. It is not however arguable that the Tribunal’s finding that the Appellant met the condition in Regulation 10(5)(c) was one that was unsupported by the evidence and/or adequate reasoning given that there was documentary evidence to support it notwithstanding the unsatisfactory nature of the Appellant’s oral testimony. Permission to appeal on this ground is accordingly refused.”
5. In a detailed Rule 24 reply received by the Tribunal on 22nd February 2017 drafted by Mr Gajjar it is said, amongst other things, at paragraphs 22 to 24 as follows:-
“22. It is submitted that the FTJ has properly directed himself as to the evidence and noted that there was a letter from HMRC for the Appellant’s wife confirming that she had earned a sum of £6,090.00 between 5 April 2014 and 5 April 2015. Despite the terminology used, it is submitted that the Appellant satisfied the evidential requirements of Regulation 10(5)(c) had been met on the balance of probabilities and it was open to the FTJ to conclude as he did.
23. It is submitted that the Secretary of State’s approach in this case cannot be in line with the intentions of the Regulations and therefore the intentions of Parliament. The Appellant’s former EEA partner was a self-employed individual and may or may not have been working on the day of the divorce (21 November 2014) but was found to have exercised Treaty rights during the tax year of between 5 April 2014 and 5 April 2015. It is submitted that it would be paradoxical or irrational to require any further proof/evidence of her exercising Treaty rights at the date of the divorce given that a self-employed individual may well find themselves out of work for short periods of time without it being rational to conclude that their status has shifted from being self-employed to unemployed during that period.
24. The Appellant further submits that the approach taken by FTJ Clarke as to evidence of the EEA national exercising Treaty rights at the date of the divorce was in line with the guidance of the Upper Tribunal chaired by UTJ McGeachy and Mr Justice Blake in Samsam (EEA: revocation and retained rights) Syria [2011] UKUT 165. Crucially, paragraph (sic) 59-60 ...
‘59. In marriage breakdown cases, the EEA national spouse may not wish to cooperate with the non-national former family member in providing evidence of the retained right of residence. This may cause problems if the burden lies fully on the applicant in making a first application for a residence document or permanent residence. A material consideration to whether the applicant can discharge the burden of proof is whether the Home Office had previously accepted that the relevant person was working or otherwise exercising Treaty rights. Disclosure of such applications should be made in appellate proceedings as the applicant may not always have taken the precaution of keeping a copy. The 2007 application has proved important in determining the outcome of this case.
60. Applying the language of regulation 10(5) to these facts:-
a. The wife was a qualified person at the inception of the marriage (2002 residence permit).
b. The Appellant ceased to be the family member of a qualified person on divorce in March 2007.
c. The Appellant was residing in the UK in accordance with the Regulations as the husband of a qualified person at the time of the divorce as there was evidence that the wife had been working part time throughout the previous year.
d. Prior to the initiation of the divorce proceedings the marriage has lasted three years and the parties had resided in the United Kingdom during the marriage for at least a year.
e. The Home Office were twice satisfied that the wife had been exercising Treaty rights in 2002 and 2007, and there was nothing to suggest that satisfaction was based on material misconception of fact. There was some evidence that the wife was a worker at earlier periods in the marriage.
f. At the time of the 2009 application there was evidence that the Appellant was working. There is no indication that this was disputed by the Home Office or that the Appellant had had recourse to public funds. If regulation 10(6)(a) is a legitimate requirement the evidence indicates that the Appellant met it, although our reading of the Directive is that evidence of post divorce employment is not necessary to enable the non-national former spouse to acquire and keep the retained right of residence.’”
6. Insofar as the Regulations themselves are concerned it is said:-
“10(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”.
7. During submissions and discussion today, Mr Armstrong said that the permission to appeal was on a narrow ground and that it was on one ground. It was to do with the failure to give reasons in respect of paragraph 39. The Appellant had produced evidence of the Sponsor’s self-employment until April 2014, but the divorce was not until November 2014. Therefore, it was correct to say that the Appellant had failed to provide evidence of his wife’s divorce. There was no adequate evidence from the Appellant to show he was working at the date of the hearing. It led to adverse findings which were then referred to. Mr Armstrong agreed that the case said it is not always possible to get documents, but the point being that the Regulations do ask that the evidence in relation to ex-spouses exercising treaty rights should be produced. The Regulations were quite specific. Mr Armstrong then took me through the Rule 24 which was relied upon on behalf of the Appellant and he took me through the immigration history of the Appellant and it is fair to say the Appellant indeed has a very bad immigration history, including previous refusals as an overstayer.
8. Ultimately however, it was also noted in paragraphs 32 to 34 of the judge’s decision that the Appellant was given an opportunity to produce mobile telephone evidence after making mobile telephone calls, but then when he returned he seemed to give totally different evidence. I was invited to find that there was a material error of law and that I should set aside the decision.
9. Mr Gajjar said I should uphold the decision. He said there was no material error of law and that in fact there was only one ground and I should disregard the aspects in relation to, in effect, the Appellant’s immigration history. He referred to the case of Samsam and he said the position was that the Upper Tribunal recognised in effect that the standard of proof is fettered when dealing with a retained right of residence issue. He said that divorces can be of an acrimonious nature. He said the crucial point was whether the Secretary of State had previously granted anything such as a residence card and the letter of refusal showed that she had. He took me to some of the documents in the Appellant’s bundle, particularly at page 18 which was an HMRC document showing that there had been income earned between April 2014 and April 2015, the submission in effect being that therefore the Appellant must have been working in November 2014 at the time of the divorce.
10. Mr Armstrong replied and he said it was a very narrow issue. Can the Appellant prove that when he divorced in November 2014 that the Sponsor, i.e. his ex-wife was working? He said he recognised that the case of Samsam says that it might be difficult to get documents because ex-spouses may not co-operate, however in this case the ex-spouse must have co-operated because that is the only place the HMRC documents could possibly have come from. The Appellant needed to get a witness statement from his ex-spouse to say she was working, or indeed from her employer. The HMRC evidence on its own was insufficient. There was less than the taxable amount being earned in a particular year and it was not even clear if the ex-spouse was in the UK or abroad.
11. This indeed is a very narrow issue and it comes to whether or not reliance can be placed on the documents which were submitted by the Appellant. I am persuaded by the submissions of Mr Gajjar that there was not just one document from HMRC, but numerous other documents from previous years, and indeed a document from the year after. Those appear in the original Appellant’s bundle at pages 15 through to 19 and they do indeed confirm that the Appellant’s ex-spouse had been earning income. There were not vast amounts but in the tax year April 2014 to April 2015 the sum was £6,090. As I say, this was not a vast amount, but on the other hand it is not a trifling amount either. Was the judge entitled to look to this evidence and the rest of the evidence to enable him to conclude to the required balance of probabilities test that it was likely that the Appellant’s ex-spouse was working for the purposes of Regulation 10(5)(a)? The issue really is as simple as that. In my judgment there was sufficient evidence here to enable the judge to come to that conclusion. The evidence was from these clear documents from HMRC. There was no issue about their genuine nature. They showed work had indeed taken placed as claimed. This was good and sufficient evidence.
12. In the circumstances, I conclude that there is no material error of law. The result is that the decision of the First-tier Tribunal Judge stands.

Notice of Decision
The Secretary of State’s appeal against the decision of First-tier Tribunal Judge Clarke is dismissed, the effect of which is that the Judge’s decision shall stand and the Appellant’s appeal remains allowed.
No anonymity direction is made.

Signed Date: 20 March 2017

Deputy Upper Tribunal Judge Mahmood