Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29238/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 February 2017
On 20 February 2017

Before

UPPER TRIBUNAL JUDGE MCGEACHY

Between

Senol Mutlu
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Davies of International Care Network
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Turkey who appeals against a decision of Judge of the First-tier Tribunal M A Khan, who, in a determination promulgated on 12 August 2016 dismissed the appellant's appeal against a refusal of the Secretary of State to issue him with a residence card giving him permanent residence as the spouse of an EEA national, namely Hafize Sebatin Myumyun, a citizen of Bulgaria to whom he had been married since November 2009.

2. The letter of refusal noted that a number of Jobseeker's Allowance letters addressed to the appellant's spouse which were dated 11 February 2013, 23 October 2013, 23 December 2013, 10 January 2014 and 11 and 20 January 2014 had been issued as well as some information relating to the appellant's wife's self-employment, dated 24 June 2009 and sporadic invoices which she had rendered between 28 September 2009 and 23 December 2009 as well as an accountancy letter dated 2 February 2011 containing a cost and expenditure report for the tax years 2009/10 and 2010/11. HM Revenue & Customs letters dated 19 August 2009, 6 April 2010, 10 April 2010, 24 February 2011, 6 April 2011 and 15 April 2011 had also been submitted.

3. The Secretary of State took the view that the letters provided stated that the appellant's wife had only made two payments for national insurance on 10 July 2010 and 21 January 2012 but the other letters from HMRC had merely stated that it was time for her to submit her tax return and stated that no tax return had been submitted. It was therefore considered that the appellant's wife had not provided sufficient evidence of her economic activity and residence for the years 2009 to 2011. It was stated that the appellant had failed to submit any evidence of bank statements showing payments received, audited accounts, evidence of paying tax in the United Kingdom or any advertisements that his wife had made in order to generate work.

4. The letter of refusal went on to state:-

"Moreover your EEA sponsor states in a covering letter that from the period of 6 April 2011 to 28 June 2011 and 6 January 2013 to 14 April 2014 that she was a jobseeker",

and stated that that had been evidenced by Jobseeker's Allowance letters but it was noted that one of the letters - that dated 11 February 2013 - stated that "a doubt has arisen on your claim form for Jobseeker's Allowance because you left your job voluntarily".

5. Having referred to Regulation 6(2) of the Immigration (EEA) Regulations 2006, the Secretary of State also stated that the appellant's sponsor had been unemployed for a period from 6 January 2013 to 16 February 2014, which exceeded the six month period and there had been no evidence of her actively seeking work. While it was accepted that she now worked for the NHS it was said that she had not been actively seeking work prior to that. Again it was stated that there was evidence that she might have left her employment voluntarily.

6. As it was considered it had not been shown by the appellant that his wife had exercised Treaty rights for a period of five years the application for the permit showing the right of permanent residence was refused.

7. The appeal was heard by Judge Khan on 26 July 2016. His conclusions are brief. He stated that:-

"The appellant's wife accepted in evidence that she was not working between January 2013 and February 2014. On 18/06/2013, she went to Turkey to care for her mother, therefore during these three months she was not available for work. I accept her evidence that she was not paid for November 2012 and in a way forced to leave her employment. However, she did not make any claim for unfair dismissal and therefore was not entitled to Jobseeker's Allowance".

8. The judge concluded that the appellant had not shown that he had completed five years of residence in accordance with the EEA Regulations and therefore did not qualify for permanent residence. He made a finding that the appellant's wife had not been exercising her Treaty rights between 6 January 2013 and February 2014 and said that she was certainly not available for work between 18/06/2013 and September 2013. He therefore dismissed the appeal.

9. The appellant applied for permission to appeal to the Upper Tribunal. His first ground of appeal referred to the period between 10 November 2009 to 5 April 2011 and stated that that had been dealt with in the skeleton argument before the judge and that the arguments therein had been supported by documentary evidence in the appellant's bundle. The judge had erred by making no finding concerning that period and nor was there any record of the respondent conceding on that point although the Presenting Officer had not been recorded as making any submissions on that period. Mr Bramble confirmed that he accepted that that was an error of law but stated that it was not material.

10. The second error of law argued in the grounds of appeal was that the judge had taken into account Regulation 3(2)(a) of the Immigration (EEA) Regulations 2006 which stated that periods of absence of up to six months in any year did not affect continuity of residence. The grounds stated:-

"The sponsor's absence in Turkey for the period 18 June to 7 September 2013 is undisputed; it is also true, as Judge Khan states at paragraph 23, 'she was certainly not available for work between 18/06/2013 and September 2013'; but he is wrong to conclude that such an absence breaks her continuity of residence".

11. The third error of law argued was that no proper consideration had been given as to whether or not the sponsor fitted the description given at Regulation 6(2) of the Immigration (EEA) Regulations 2006 of being a person who is no longer working but who should still be treated as a worker. It was stated that the judge had accepted her evidence but his conclusion was vague ("in a way forced to leave her employment") whereas the judge should have been definite as to whether that unemployment had been voluntary or not. It was argued that the judge had erred by taking the fact that she was not in receipt of Jobseeker's Allowance as evidence that the appellant's spouse was not in fact jobseeking when there was evidence in the bundle of registration with the job centre and of her actively seeking work. It was stated that the skeleton had dealt with this in a systematic way but the judge had ignored this.

12. There was a fourth error of law identified in the grounds but that was not pursued by Mr Davies.

13. Permission to appeal was granted in the First-tier by Judge of the First-tier Tribunal Kelly.

14. At the hearing of the appeal before me Mr Davies first relied on the grounds of appeal.

15. Mr Bramble then replied, relying on a Rule 24 statement in which it was stated that the decision of the judge was open to him but which did not deal with the arguments put forward in the grounds of appeal. It was Mr Bramble's argument that the gap between 2013 and 2014 was such that the error the judge had made regarding the period up to 2011 was irrelevant. He referred to the letter of refusal and to the reference to Regulation 6(7) which had stated:-

"A person may not retain the status of a worker pursuant to paragraph (2)(b), or jobseeker pursuant to paragraph (1)(a), for longer than six months unless he can provide compelling evidence that he is continuing to seek employment and has a genuine chance of being engaged."

16. He accepted that the months when the appellant's wife was in Turkey looking after her mother should not be taken into consideration when considering the length of time that the sponsor had been a jobseeker and accepted also that the judge had erred in not clarifying that point but he stated that this still left the period between January 2013 and February 2014 as, even ignoring the period when the appellant's wife had been in Turkey, that was longer than the relevant six months and that it was necessary to show that during that time she had been a jobseeker. He suggested that that had not been shown.

17. He went on to accept, however, that the judge's treatment of the relevant issues could have been clearer but stated that I should either find that there was no material error of law in the determination of the judge or, alternatively, should I find that there was a material error because of the factors which the judge had not considered then I should remake the decision.

18. Mr Davies then replied. He stated that it had appeared to have been accepted that the first period between November 2009 and April 2011 would count towards the five year period - it was accepted that the appellant's spouse had been self-employed at that time. With regard to the gap between 2013 and 2014 he stated that the definition of "job seeking" meant that an individual must be actively seeking work and he stated that there was clear evidence that the appellant's spouse was actively seeking work. The definition was not whether or not she was getting Jobseeker's Allowance and indeed that would have depended on the earnings of the appellant himself. He took me to the bundle of documents, to which I will refer below, and to case law which, he stated, indicated that six months was only a general rule of thumb and there was no fixed time limit on which after which an EEA national was no longer a jobseeker. He stated that the sponsor was seeking work and clearly had a realistic chance of finding employment and that she had found employment eventually.

19. As the appellant's spouse was exercising Treaty rights during the five year period he was entitled to the residence card giving him indefinite leave to remain.

20. Further discussion arose relating to work which the appellant's wife had undertaken at the "Red Lion". It appeared that it was accepted by the respondent that she had worked there until January 2013 albeit that she had not been paid. She had therefore been in employment at the Red Lion between June 2011 and January 2013.

21. It was accepted by Mr Bramble that the determination of the judge did not fully grapple with the facts in this case and I consider that the fact that the judge did not do so was a material error of law, particularly given the terms of the skeleton argument and the documentary evidence which had been placed before him in the appellant's bundle and that which had been sent to the respondent with the application.

22. Having set aside the determination I have considered whether or not there is sufficient evidence for me to go on to remake the decision. I consider that there is.

23. I first consider the first period on which the judge made no findings, that is the period from 2009 to 2012. The reality is that in addition to the evidence which was originally placed before the Secretary of State there is a receipt of 19 January 2010 of national insurance contributions for the period of that date, there is a national insurance record dated 20 June 2011, a letter from the Inland Revenue with a tax refund dated 24 February 2011 and a letter from HMRC dated 12 August 2011 confirming tax paid for the years 2009/10 and 2010/11. There is also a letter from HMRC showing tax calculations for 2010 to 2011 and a further letter showing employment history for the years 2011 and 2012. There is also a receipt dated 31 July 2013 for the national insurance contributions from April 2010 to April 2012.

24. I conclude that there is evidence of the sponsor exercising Treaty rights not only for the period during which the sponsor was self-employed but also I consider there is sufficient evidence to show her employment at the "Red Lion" and that that evidence continues to show the sponsor's employment at the Red Lion until January 2013.

25. I therefore consider that Mr Bramble was correct to accept that there was evidence for the appellant's employment for that period and that there had been an error of law by the judge in not making any finding thereon.

26. With regard to the period from January 2013 to February 2014 I note that the judge said that the appellant's spouse had stated that she was not working during that period. He took that to mean that she was not exercising Treaty rights. That was wrong. What she was doing during that time, apart from a period when she was in Turkey looking after her sick mother, was seeking work. There is very considerable evidence relating to that which includes correspondence regarding jobseeker's agreements dated February 2013, an invitation to an assessment interview of 11 February 2013 and one on 22 February 2013 as well as a job summary of 12 February 2013. Further invitations to interview were made for 26 February 2013 in Maidenhead and in Slough on 28 February. There is the appellant's looking for work record between February and March 2013. Moreover there is her job centre booklet for 30 October 2013 (after the period when she had been in Turkey). I would add that there are email printouts showing that she was seeking work while in Turkey.

27. Her registration for work with the NHS took place in October 2013 and she applied for the job which she is now undertaking in November 2013. Although there are jobseeker's agreements for December 2013 and it was not until the job offer for the sponsor's current position was made on 12 February 2014 - her contract for regular employment is dated 18 August 2014 a letter confirming her employment was dated 27 February 2015 confirming that she had been employed since February 2014 - the reality is that after October 2013 the sponsor had applied for work which she obtained with the NHS. I consider that taking all the evidence together the sponsor has shown that she was actively seeking work during the relevant period and therefore was exercising Treaty rights. I note Mr Bramble's concession that the period when the sponsor was in Turkey was not relevant to the length of time being spent as a jobseeker although I note that she did, while in Turkey, actively seek work.

28. I place weight on the determination of the Tribunal in AG and others (EEA - jobseeker - self-sufficient person - proof) Germany [2007] UKAIT 00075 and to the head note at (iii) where it is stated:

"In considering what period of time a jobseeker has to find work, six months may be a general rule of thumb, but there is no fixed time limit. The ECJ in Antonissen [1991] ECR I-745, Case C-344/95 decided that the period must be a 'reasonable period' and the assessment of what is 'reasonable' must be made in the context of each individual case. Thus it may sometimes be less, sometimes more, than six months. In all cases, however, the period in question must start from the date of the person's arrival in the United Kingdom."

29. I note that that reference is to a jobseeker who arrived in Britain to seek work but I consider that it is also relevant when there is, as here, a gap in employment.

30. I consider therefore that on the totality of the evidence the sponsor was exercising Treaty rights over the relevant five year period.

31. I therefore consider that, having set aside the decision of the First-tier Judge, it is appropriate that I remake the decision and allow this appeal.

Notice of Decision

This appeal is allowed on immigration grounds.

No anonymity direction is made.

Signed Date

Upper Tribunal Judge McGeachy