Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30709/2015

THE IMMIGRATION ACTS

Heard at FIELD HOUSE
Determination Promulgated
On 3RD August 2016
On 8TH August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE
G A BLACK

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR ALEX SEGNOU FOMBASSO
NO ANONYMITY ORDER MADE
Claimant

Representation:
For the Appellant: Mr T. Melvin (Home Office Presenting Officer)
For the Respondent: Ms V. Akitola (Legal representative)

DECISION AND REASONS
1. The appellant in this matter is the Secretary of State and I shall refer to the parties as "the Secretary of State" and to Mr Fombasso as "the Claimant". This is an error of law hearing that comes before me for consideration as to whether or not there is a material error of law in the decision the First-tier Tribunal (Judge Barber) (FtT) promulgated on 5th February 2016 in which the appeal of the Claimant was allowed under the EEA (Immigration ) Regulations 2006 ("2006 Regulations"). The appeal was determined on the papers.
Background
2. The Claimant is a national of the Cameroon and he entered the UK as a student under the PBS. He married an EEA national from France on 27th July 2009 and on 16th November 2011 he was issued with a residence card as a family member for a period of 5 years. He and his wife divorced on 3rd March 2015. He applied for permanent residence on 27th March 2015 under Regulation 15(1)(f) of the 2006 Regulations with reference to Regulation 10(5). This was refused by the Secretary of State on 28th August 2015 because he failed to provide evidence that his former wife was exercising Treaty rights at the time of the divorce, as required under Regulation 10(5).
3. In the refusal letter the Secretary of State accepted that the marriage lasted for 3 years and that the parties had lived together for a period of at least 1 year for the purposes of Regulation 10(5). The Claimant was also required to provide evidence that he was residing in accordance with the Regulations at the time of the divorce. The refusal was worded in terms of the lack of evidence to show that the EEA national was exercising Treaty rights. The refusal letter stated "In addition as your application is for permanent residence you must show that you have resided in accordance with the regulations for a continuous period of five year period which would mean that your EEA spouse continuously exercised free movement rights up to the date of divorce and that you have been employed, self employed ? since your divorce. Collectively this must cover a continuous period of 5 years to meet Regulation 15(1)(f).
4. The FtT found that there was evidence that the EEA national was exercising Treaty rights at the time of the divorce and relied on evidence of a wage slip dated March 2015. It found that the Claimant met the requirements of Regulation 10(5).The appeal was allowed on EEA grounds.
5. In grounds of application for permission the Secretary of State argued that the FtT erred by failing to consider that the Claimant had not established 5 years residence in accordance with the Regulations. The start date was December 2011 and as at the date of divorce the Claimant had established only three years and 3 months residence and would therefore not be entitled to permanent residence until December 2016. For a retained right of residence the Claimant had not met the Regulations. The relevant date was the date of the hearing (Boodhoo) at which point the Claimant had to show that he was residing in accordance with the Regulations.
6. Permission was granted on the grounds argued and the Claimant was advised to obtain legal advice.
Submissions
7. At the hearing before me Mr Melvin conceded that the Claimant had established a retained right of residence (Regulation 10(5)) as there was evidence that the sponsor was exercising Treaty rights at the time of the divorce with the wage slip dated March 2015. But he argued that he was not entitled to permanent residence given the start date of December 2011. Ms Akitola produced a skeleton argument and submitted that the Claimant did meet the Regulations 10(5) and 15(1)(f) which were worded in the alternative in terms of the Claimant or the sponsor showing that Treaty rights were exercised. She relied on Ahmed (AmosZambrano) Reg 15A(3)(c)2006EEA Regulations Pakistan(Rev1) [2013] UKUT 89 (IAC)[49].
Discussion and conclusion
8. It is now accepted that the Claimant meets Regulation 10(5) and has a retained right of residence as there was evidence before the FtT to show that his EEA national spouse was exercising Treaty rights at the time of the divorce. This was the issue under appeal that the FtT determined and allowed the appeal. I am satisfied that there was no error there. There seems to have been some confusion about the wage slip issue whether it is in relation to the Claimant or his EEA Spouse. The issue relating to the EEA spouse was raised in the refusal letter under Regulation 10(5) regarding evidence of the EEA national exercising Treaty rights at the time of the divorce. That matter was resolved in the Claimant's favour. However, the grounds of application for permission and indeed the grant of permission focus on the issue in Boodhoo and another (EEA Regs; relevant evidence) [2013] UKUT 00346(IAC) which held that evidence can be taken into account as at the date of hearing to show the Regulations are met. This was not an issue that was considered by the FtT. The decision in Boodhoo allowed for evidence at the date of hearing to be taken into account, it did not require the FtT to look at the facts at the date of hearing as suggested in the grounds of application. However, I find that the FtT failed to go on to consider Regulation 15(1)(f) which is a material error of law. The Claimant provided evidence to show he was a worker from April 2010 - March 2015 but none since the divorce. Mr Melvin argued that the Regulations required that the 5 years continuous residence must be evidenced as at the date of hearing and in any event the Claimant had not shown 5 years from 2011. He was issued a residence card on 16.11.2011 as a family member. He needed to produce not only evidence that he met Regulation 10(5) but also to cover the whole of a five year period. The Secretary of State took the start date as December 2011 and calculated 3 years and three months residence in accordance with the Regulations. Issue was taken as to the period of continuous residence in the refusal letter and this was therefore an issue that the FtT ought to have gone on to consider but did not. The error arose in that the FtT failed to go on to consider Regulation 15(1)(f) in terms of the evidence to show 5 years continuous residence.
Decision
9. There is a material error of law in the decision which shall be set aside although the findings and decision as to Regulation 10(5) is preserved.
Remaking the decision
10. On the evidence that was before the FtT the Claimant has not shown that he has established 5 years continuous residence in accordance with the Regulations and at the end of that period has a retained right of residence. He has a retained right of residence under Regulation 10(5) but the evidence dating from 2011 fails to show that he meets Regulation 15(1)(f) in terms of continuous 5 year period or that he is exercising Treaty rights. The start date for under Regulation 15(1)(f) unlike for Regulation 15(b) is not the date of marriage (EEA Regs - civil partnership Thailand (2009) UKAIT 00014. The Claimant will have completed the five year period on 16.11.2016. The skeleton argument does not deal with this issue and focuses solely on that regarding Regulation 10(5). Miss Akintola erred in her submission that the reasons for refusal raised no issue as to the 5 year period. As is set out above [3] it did and this was an issue that remained to be resolved in terms of evidence. The documents produced dated from 2011.
Decision
12. The appeal under Regulation 15(1)(f) is dismissed.

Signed Date 5.8.2016

GA Black
Deputy Judge of the Upper Tribunal

NO ANONYMITY ORDER
NO FEE AWARD

Signed Date 5.8.2016

GA Black
Deputy Judge of the Upper Tribunal