Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29895/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 December 2016
On 18 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Oluwamisimi Priscilla Ogunseye
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Ms A Brocklesby-Weller, Home Office Presenting Officer
For the Respondent: Mr M George, Jesuis Solicitors (20 October 2016).
No appearance (15 December 2016).

DECISION AND REASONS
1. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal allowing an appeal by the appellant against the respondent's decision made on 21 August 2015 refusing her a residence card as a confirmation of a right to reside as the family member of an EEA national exercising treaty rights. In this decision I will refer to the parties as they were before the First-tier Tribunal, the applicant as the appellant and the Secretary of State as the respondent.
Background
2. The appellant is a citizen of Nigeria born on 31 August 1990. She entered the UK on 31 July 2011 with a student visa valid until 15 October 2014. On 11 December 2013 she applied for a residence card as a spouse but this application was withdrawn on 3 June 2014. On 7 October 2014 she made the application the subject of this appeal. She based her application on the fact that she had married her husband on 3 October 2013. He is a citizen of Portugal and it was claimed that he was exercising treaty rights in the UK as an employee of Spark Legend Limited ("Spark Legend").
3. However, the respondent was not satisfied that the appellant had submitted sufficient evidence to demonstrate that her husband was exercising treaty rights in the UK. Attempts had been made to verify his claimed employment but the respondent had been unable to do so. It was also noted that Spark Legend was dissolved on 17 March 2015. Accordingly the appellant's application was refused on 21 August 2015.
4. The appellant appealed against this decision and opted to have the appeal decided on the papers. The judge accepted that there was no dispute that the appellant was married to an EEA national and that the issue was whether he was exercising treaty rights as a worker in the UK. He set out his findings on this issue as follows:
"17. I find that the appellant has shown evidentially that her husband was working for Spark Legend Limited at the time of the application. The application date is 7 October 2014. I say this given:
(a) the DueDil company information regarding Spark Legend Ltd shows that it was incorporated on 23 July 2012 and dissolved on 17 March 2015. Therefore, I find it was a genuine company at the time of the appellant's application;
(b) the appellant has provided her husband's contract of employment with Spark Legend Ltd showing that he started work on 25 October 2015; and
(c) that I find it probable that the appellant's husband was still employed by them at the time of the application given the wage slips provided. I find that these documents are reliable given that they predate the dissolution of the company. There is no evidence of inter-agency checks within the file to support the respondent's assertion that his employment cannot be verified."
5. The judge then said that, having found that the appellant had shown that her husband was a worker at the time of her application and as such a qualified person within the requirements of reg. 6(1) of the Immigration (European Economic Area) Regulations 2006 ("the Regulations"), the appeal should be allowed.
The Grounds and Submissions
6. The respondent's grounds argue that the judge had failed to engage adequately with the contents of the decision letter which took issue with the claim that the appellant's husband had been employed at Spark Legend as no employment or self-employment records were found for him between April 2013 and April 2015, leading the respondent to believe the documents provided were false. Further, the judge had erred by finding that the fact that the appellant's spouse was exercising treaty rights at the date of application was sufficient to allow the appeal. The material date for considering the application for the respondent was the date of decision and for an in-country appeal the date of hearing. The grounds argue that there was no evidence whatsoever that the appellant's spouse satisfied reg. 9 on either of these dates.
7. At the hearing before me Ms Brocklesby Weller adopted the grounds. At the date of the respondent's decision the appellant could not have been working, so she argued, for Sparks Legend as the company had been dissolved in March 2015. Further, the judge had failed to consider adequately or at all the respondent's assertion that the payslips were false in the light of the lack of any reliable evidence to confirm the employment of the appellant's husband.
8. Mr George submitted that the judge had reached a decision properly open to him on the evidence. These were issues of fact for him to decide. He had been entitled to find that the appellant's husband had been employed as claimed as at the date of application.
Consideration of Whether there is an Error of Law
9. I am satisfied that the judge erred in law for the reasons set out in the respondent's grounds. The respondent had to assess whether the appellant met the requirements of the Regulations as at the date of her decision. If there is an in-country appeal, the First-tier Tribunal is entitled to take into account any evidence relating to the substance of the decision.
10. It is therefore clear that the judge erred in law by failing to consider the issue of whether the appellant fell within the category of a worker either at the date of decision or at the date of hearing. This error was material to the outcome of the appeal in the light of the evidence that Spark Legend was dissolved on 17 March 2015, some five months before the respondent's decision. I also accept the submission that the judge failed to give adequate reasons for discounting the evidence in the respondent's decision letter that attempts to verify the claimed employment had not produced any evidence that the respondent's husband was in fact working.
11. I am therefore satisfied that the judge erred in law and that the decision should be set aside. Mr George sought a rehearing before the First-tier Tribunal. Ms Brocklesby Weller indicated that the respondent would wish to adduce further evidence as to whether the appellant's husband was still in the UK. On balance I am satisfied that this is an appeal which should properly remain in the Upper Tribunal for the decision to be re-made.
Re-making the Decision
12. The appeal was duly relisted on 15 December 2016. There was no appearance by or on behalf of the appellant. On 1 December 2016 the appellant's solicitors wrote to notify the Tribunal that the appellant no longer wished to continue with her immigration appeal and that she has withdrawn from the appeal due to circumstances beyond her control. The representatives were notified by the Tribunal that as the appeal had been brought by the respondent, it would need to proceed to a hearing. There has been no appearance by or on behalf of the appellant and her representatives have indicated that they are no longer acting. I am satisfied that the proper course is to proceed to determine the appeal in the appellant's absence.
13. The appellant applied for a residence card as confirmation of a right to reside as the family member of an EEA national exercising treaty rights. At the hearing of the appeal before the First-tier Tribunal a contract of employment showing that the appellant's husband had started work on 25 October 2013 and a number of wage slips from that company were produced. The respondent has now produced a witness statement from an officer of HM Revenue & Customs authorised to make disclosure under s.40 of the UK Borders Act 2007 following a request from the respondent for information as to the employment record of the appellant's husband. This records that no HMRC self-assessment tax record is held for the years 2013/14 to 2015/16 and so far as PAYE records are concerned, none are held for 2015/16. There was no record held of any current employer. So far as the tax years 2013/14 and 2014/15 in respect of Spark Legend Limited are concerned, there is no evidence of any payment of salary by that company to the appellant's husband.
14. In the light of this evidence I am not satisfied that the documents submitted to the First-tier Tribunal are genuine, that the appellant's husband was employed by Sparks Legend or otherwise falls within the provisions of reg 6 of the Regulations. I am satisfied in the light of information held by the respondent and produced at the hearing that the appellant's husband is no longer in the UK. Accordingly, the appellant has failed to show that her husband was exercising treaty rights at the date of decision or at the date of this hearing.

Decision
15. The First-tier Tribunal erred in law and the decision has been set aside. I re-make the decision by dismissing the appellant's appeal against the refusal of a residence card. No anonymity direction has been made.

Signed H J E Latter Date: 16 January 2017

Deputy Upper Tribunal Judge Latter