Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/30067/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 August 2016
On 9 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

M O I
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Onipade, counsel
For the Respondent: Mr Kotas, Home Office Presenting Officer

DECISION AND REASONS

1. This matter comes before me for consideration as to whether or not there is a material error of law in the determination of First-tier Tribunal Judge Carlin ("the FTTJ") promulgated on 12 November 2015, in which the FTTJ dismissed the appellant's appeal against the refusal of a residence pursuant to the Immigration (EEA) Regulations 2006.

2. No anonymity direction was made in the First-tier Tribunal but, given the references in this decision to the appellant's and his wife's personal circumstances, an anonymity order is appropriate.

Background

3. The appellant married his wife, an Irish citizen, on [ ] February 2015. He applied for a residence card on the basis that his wife was exercising Treaty rights in the UK. The respondent refused the application because, when a telephone call was made to her employer, it was found that the appellant's wife was no longer employed at the date of decision. This was confirmed in a letter dated 1 September 2015 from the appellant's wife's former employer to the effect that the appellant's wife had left their employ on 3 July 2015. The FTTJ found that the appellant's wife was not therefore employed at the date of hearing. The appeal was dismissed.

4. The appellant appealed to this tribunal on the ground that the FTTJ had failed to take into account evidence submitted to the FTT to the effect that his wife had started alternative employment. The appellant was granted permission to appeal to this tribunal.

Submissions

5. At the outset of the hearing I pointed out to the parties that the FTT file included a bundle of documents apparently submitted by the appellant. It was stamped as having been received by the FTT hearing centre in Birmingham (where the appeal was listed to be heard on the papers) on 21 October 2015, ie before the due date of 23 October 2015, as notified to the parties in the directions notice.

6. Mr Kotas, for the Secretary of state, conceded that, the FTTJ having failed to refer to the appellant's evidence in the decision, a material error of law had been made. That was an appropriate concession in the circumstances.

Discussion

7. As the FTTJ had failed to take into account relevant evidence, I find the decision contains a material error of law: the evidence in the appellant's bundle had a bearing on the outcome of the hearing.

8. I set aside the FTTJ's decision and remake it as follows.

9. The appellant produced to the FTT a letter from his wife's employer, UK Universal Group, dated 16 October 2015. This confirms that the appellant's wife had been employed by the UK Universal Group Ltd since 1 September 2015 upon completion of her training. She was working full-time. The bundle also includes bank statements reflecting her earnings.

10. In addition, the appellant produced before me a further bundle of documents with up-to-date documentary evidence of relevance to the issue of whether the appellant's wife is a qualified person pursuant to Regulation 6 of the EEA Regulations. That bundle includes a further letter from UK Universal Group Ltd confirming the appellant's wife still works for that company. There is also a letter from HMRC dated 11 July 2016, obtained for these proceedings, confirming her employment history. This includes her work for UK Universal Group Ltd from 1 September 2015 to date. There are also various payslips issued by that company to the appellant's wife, a P60 issued by UK Universal Group Ltd and bank statements reflecting the appellant's wife's income as shown in her payslips.

11. Taking the evidence in the round I am satisfied that the appellant's wife is a worker exercising Treaty rights in the UK pursuant to regulation 6.

Decision

12. The making of the decision of the First-tier Tribunal did involve an error of law, as set out above.

13. I set aside the decision.

14. I re-make the decision in the appeal by allowing it.

Signed A M Black
Deputy Upper Tribunal Judge A M Black Date 8 August 2016

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Fee Award
The appeal has been successful and I have considered making a fee award. I do not make a fee award because there is no indication the appellant sent a copy of his bundle to the respondent prior to the hearing of his appeal on the papers in the FTT. Had he done so, the respondent would have had the opportunity to reconsider her decision and to avoid an appeal hearing.

Signed A M Black
Deputy Upper Tribunal Judge A M Black Date 8 August 2016