Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30582/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 June 2016
On 30 September 2016

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

GUILHERME CASTRO DA ROCHA
[no anonymity order]
Respondent

DECISION AND REASONS
1. The claimant is a Brazilian citizen who was successful before the First-tier Tribunal in his appeal against the Secretary of State's decision to refuse to grant him a permanent right of residence as the spouse of an Italian citizen (and hence an EEA citizen), pursuant to Regulation 15(1)(b) of the Immigration (European Economic Area) Regulations 2006 (as amended).
2. This appeal was heard by Deputy Upper Tribunal Judge Archer on 2 June 2016. It comes before me for an error of law decision following the transfer order I have made today. The claimant did not attend the Upper Tribunal hearing in June, and I proceed to decide the appeal without a further oral hearing. I have had regard to Judge Archer's record of proceedings which records the submissions made by the Home Office Presenting Officer, Mr Whitwell, at the hearing.
Regulation 15(1)(b)
3. Regulation 15(1)(b) is as follows:
"15.- (1) The following persons shall acquire the right to reside in the United Kingdom permanently-?
(b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years; ?"
First-tier Tribunal decision
4. It is for the claimant to show that his spouse has been so residing. The evidence before the First-tier Tribunal was incomplete, but at paragraph 16 of the decision the First-tier Tribunal Judge found that
"?The [claimant] has provided evidence that his wife has been exercising rights as a worker within the United Kingdom throughout most of the last 5 years save for temporary absences. Absences from work due to pregnancy or the birth of a child are recognised under the Regulations' (emphasis added).
On that basis, the First-tier Tribunal allowed the appeal.
Secretary of State's appeal
5. The Secretary of State appealed with permission to the Upper Tribunal on the basis that there was a gap in the documentary evidence concerning the period from June-November 2012, and that it had not been open to the Judge to allow the appeal, as the appellant had not shown 5 continuous years exercise of Treaty rights by the wife.
6. The Secretary of State contended, and at the 2 June 2016, the Home Office Presenting Officer Mr Whitwell submitted, that there was no evidential basis for the First-tier Tribunal Judge's finding that the claimant's EEA spouse had been exercising Treaty rights in the United Kingdom for the required period of 5 years, such that he would be entitled to indefinite leave to remain in the United Kingdom as claimed.
Discussion
7. I am not satisfied, having regard to the evidence before Judge Archer and now before me, including the record of proceedings, that the First-tier Tribunal's decision was a lawful one. The provisions of Regulation 15(1)(b) are precise: the claimant must show that his spouse has been in the United Kingdom 'in accordance with the Regulations' for an uninterrupted period of 5 years. The First-tier Tribunal Judge did not find that to be the case, merely that the claimant's wife had been in the United Kingdom in accordance with the Regulations for 'most of' that 5-year period.
8. Accordingly, even on the First-tier Tribunal's findings, the Secretary of State's challenge to the First-tier Tribunal decision must succeed and the claimant's appeal falls to be dismissed.
Conclusions:
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision and re-make the decision in the appeal by dismissing it.

Date: 29 September 2016
Signed: Judith AJC Gleeson
Upper Tribunal Judge Gleeson