Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30576/2015

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On 27 February 2017
On 03 March 2017

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

MR RUSLAN CHYKYSH
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr E Cole, counsel instructed by LS Legal Immigration Solicitors
For the Respondent: Mr P Duffy, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Cohen, promulgated on 30 August 2016. Permission to appeal was granted by First-tier Tribunal Judge Davidge on 20 January 2017.
Anonymity
2. No direction has been made previously, and there is no reason for one now
Background
3. On 13 February 2015, the appellant applied for a permanent residence card as the spouse of an EEA national, VV.
4. The Secretary of State refused that application because the respondent considered the appellant to be a party to a marriage of convenience owing to his description of himself as single at the time of his marriage to VV. It was further thought that the appellant’s marriage to VV was bigamous owing to a previous marriage to TV, regarding which no divorce certificate had been submitted. In addition, it was noted that the EEA sponsor did not register her employment under the Worker Registration Scheme between 2009 and April 2011 and her employment in that period was unlawful and could not contribute to the five years’ treaty rights required. Nor had the appellant provided any evidence in support of his claim that the sponsor was self-employed between 2009 and 2011.
The hearing before the First-tier Tribunal
5. At the hearing before the First-tier Tribunal, there was no appearance by or on behalf of the appellant or on behalf of the respondent. The judge therefore determined the appeal in the absence of the parties. The judge found that the appellant had not addressed the issues raised in the refusal letter regarding his marriage and his sponsor’s employment. He further noted that there was a divorce petition dated 1 October 2015 and commented that an application should instead be made for retained rights of residence in the United Kingdom. The judge proceeded to dismiss the appeal under the Regulations as well as on human rights grounds.
The grounds of appeal
6. The grounds of appeal in support of the application argued that the judge erred in failing to consider evidence relating to the Regulation 2 issue as well as that of the sponsor’s exercise of treaty rights. Thirdly, the judge erred in stating that a further application needed to be made for retained rights of residence when his divorce had yet to be finalised.
7. Permission to appeal was granted on the basis sought.
The hearing
8. Mr Cole and Mr Duffy were in agreement that firstly, Judge Cohen did not have regard to the evidence before him and secondly that the matter should be remitted to the First-tier Tribunal for a de novo hearing.
Decision on error of law
9. In view of the agreement reached between the parties as well as the content of Mr Cole’s thorough skeleton argument, I was content to find that the judge made material errors of law for the reasons which I will set out briefly below.
10. Firstly, the judge found at [13], that the appellant had provided no evidence showing that he was free to marry. This finding overlooked documents submitted with the notice of appeal or otherwise on file, which included confirmation from the Ukrainian Register Office, the grounds of appeal, the appellant’s witness statement and also the fact that he had previously been granted a residence card on the basis of his marriage to the same sponsor.
11. Secondly, at [14], the judge found that the sponsor was not lawfully employed between 2009 and 2011. However, that finding did not take into consideration the evidence before him indicating that the sponsor claimed to be exercising treaty rights only as a self-employed person during that period as well as the fact that evidence was provided of the sponsor’s employment and self-employment over a 5-year period after the end of the Workers Registration Scheme in April 2011 until shortly before the hearing in August 2016.
12. Thirdly, the judge wrongly considered at [15] that the appellant should instead apply for retained rights of residence in the United Kingdom, without considering the evidence indicating the appellant and sponsor were yet to be divorced at the date of the hearing.
13. The judge’s failure to consider the documentary evidence before him in reaching his decisions renders his findings unsafe in their entirety.
Conclusions

The making of the decision of the First-tier Tribunal did involve the making of an error of on a point of law.

The decision of the First-tier Tribunal is set aside.

The appeal is remitted, de novo, to the First-tier Tribunal to be reheard at Taylor House, with a time estimate of 2 hours by any judge except First-tier Tribunal Judge Cohen.

Signed Date 14 January 2022

Upper Tribunal Judge Kamara