Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30947/2015

THE IMMIGRATION ACTS

Heard at Bradford UT
Decision & Reasons Promulgated
On 23rd March 2017
On 29th March 2017

Before

DEPUTY upper tribunal judge ROBERTS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr OPEYEMI AYODELE TAYO
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr Diwnycz, Senior Presenting Officer
For the Respondent: No representation

DECISION AND REASONS
1. The Secretary of State appeals with permission against the decision of a First-tier Tribunal (Judge Caswell) which, in a decision promulgated on 11th July 2016, allowed the Respondent’s appeal against the Secretary of State’s decision to refuse him a residence card as the family member of his wife (“the Sponsor”), a Dutch national exercising treaty rights in the UK.
2. For the sake of clarity, throughout this decision I shall refer to the Respondent as “the Appellant” and to the Secretary of State as “the Respondent” which reflects their respective positions before the First-tier Tribunal.
Background
3. The background to this appeal is set out in [3] to [5] of the FtT’s decision and is reproduced here below:
“3. The Appellant’s case can be summarised as follows. Mrs Tayo is a Dutch national. She and the Appellant came together to the UK in June 2009 and got married in Chesterfield in January 2010. Between June 2009 and November 2009, Mrs Tayo was looking for a job and had some interviews. She was offered the job of Care Support Worker for AMG Nursing and Care Services in October 2009. Her CRB came through in November and she started working for the company in November 2009. She carried on working for them until May 2012, when she went on maternity leave to have the couple’s daughter. Olivia Arabella was born on the 9 August 2012 and is now three years old. Her mother returned to work from maternity leave in April 2013. She received maternity allowance from her employer during the period she was not working. After her return to work, Mrs Tayo was put on refresher training and had her CRB renewed in June 2013. Her job was a zero-hour contract one and she found it hard to get enough placements because she could not drive and most required someone who could.
4. For this reason, she decided to enrol on a college course part time to try and increase her chance of securing jobs in other sectors. She was admitted to Bradford College in September 2013. However, she remained registered with her employer and taking work. She struggled to look after her daughter and attend a college in Bradford when she was living in Sheffield. Mr Tayo was also studying and working during this period. Mrs Tayo had also registered at the jobcentre in June 2013 as she was desperate to get a job. She was supported by the jobcentre staff and had a few interviews. Eventually the staff enrolled her on a customer service course. After her jobseeker’s allowance stopped in September 2013 she attended the course and obtained a BTEC QFC certificate in Customer Service in April 2014. She updated her CV and continued to look for jobs. In fact, there has never been a time when Mrs Tayo was not looking for jobs. Mostly she applied through the internet or over the phone. She has deleted unsuccessful applications from her email account so there is little documentary proof of this.
5. From August 2014 until January 2015 she again signed on at the jobcentre. Before this, she also got admitted to Leeds Beckett University on a course starting in September 2014. Again, she could not manage the course because of difficulties travelling to Leeds and caring for their daughter. Eventually in September 2015 she obtained her current job as a support worker. She obtained this as a result of having had previous experience in the sector”.
4. The core issue before the judge is set out in [12] in which she says the following:
“12. The Respondent’s case is that the Appellant has not established that his wife was exercising Treaty rights for 5 years, since she was a student for some of the time and during that period had no comprehensive health insurance. With regard to the claim that Mrs Tayo was a jobseeker, the refusal letter argues that she has not shown she was actively seeking work and had a genuine chance of engagement”.
5. Having heard from the Appellant and his Sponsor, the judge made the following relevant findings.
It was acknowledged by the Appellant that to retain student status for the purposes of the Regulations, his wife was required to be in possession of a comprehensive insurance for sickness (CSI). It was accepted that she was not in possession of a CSI.
Nevertheless (she found) the Sponsor remained a qualified person exercising treaty rights throughout the five year period preceding the application for the Appellant’s residence card. The date of application for the card was 1st April 2015.
The appeal was therefore allowed.
Permission to Appeal
6. The Respondent applied for, and was granted permission to appeal. The relevant parts of the grounds seeking permission, set out what is effectively the one issue before me and say as follows:
“(5) At [13] it is acknowledged by the parties that to retain student status for the purpose of the Regulations, Mrs Tayo was required to be in possession of CSI, but this was never effected. For the sake of completeness, the respondent wishes to raise that the appellant would also be required to have CSI as set out in Regulation 4(2). The Judge finds that although the sponsor did not obtain CSI, she remained a qualified person exercising Treaty rights throughout the five year period. This is because she continued to be a worker and jobseeker throughout.
(6) The respondent submits that evidence does not back this up. It is recorded at [4] that the sponsor’s Jobseekers Allowance stopped in September 2013 which coincides with the start of her studies. This indicates that the DWP no longer considered her to be a job seeker.
(7) Further, while the appellant claims to have remained registered with her employer and taking work, this is not borne out by the P60 for the tax year 2013/14 which only shows an annual income £1,232.
(8) The respondent submits that as the sponsor has not shown she was in effective and gainful employment while studying and as the DWP did not consider her to be a jobseeker, then she was in fact a student who failed to take out the CSI necessary to comply with the Regulations.”
Permission having been granted, the matter comes before me to decide whether the decision of the First-tier Tribunal contains such error of law that it must be set aside and the decision re-made.
Error of Law
7. I heard submissions from the Appellant in person and from Mr Diwnycz for the Respondent.
8. The Appellant Mr Tayo rehearsed the evidence which had been presented before the First-tier Tribunal. He submitted that his wife had always been exercising treaty rights and that she had never ceased being a worker, therefore she did not require a CSI.
9. Mr Diwnycz on behalf of the Respondent responded in pointing out that the judge’s error was a factual one. Even on the judge’s own analysis, she had erred. He took me to that part of [13] where the judge says the following:
“... In all years except the first and last I find there was effective employment, at an economically significant level. For the first and last years there is oral evidence from the Appellant and his wife that she was anxiously seeking work and at times registered at a jobcentre and studying to qualify so as to improve her work prospects”.
He submitted that the evidence simply did not bear out the judge’s conclusion that the Sponsor was a worker at all relevant times. The judge herself had recorded that in the “first and last” years of the relevant period she could not find evidence of an effective employment at an economically significant level. The judge also recorded at [4] that the Sponsor’s jobseeker’s allowance had stopped in September 2013 which coincided with the start of her studies. He said the fact that there is a letter, which states that the Sponsor remain registered with AMG, is not sufficient evidence to show that she was actually working or seeking work. Further, the DWP clearly considered that the Sponsor was no longer a jobseeker.
10. Mr Diwnycz went on to say, therefore the Sponsor had not shown she was in effective and gainful employment and as the DWP did not consider her to be a jobseeker, she was in fact a student and thus required to take out CSI necessary to comply with the EEA Regulations.
11. Mr Diwnycz concluded by inviting me to find that the FtT’s error in misapplying the factual matrix was a material one requiring the decision to be set aside and re-made. As there was no challenge to the substantive evidence before me he argued that I should re-make the decision dismissing the Appellant’s appeal.
Consideration
12. I find force in Mr Diwnycz’s argument. I find I am satisfied that the FtT erred in its fact-finding analysis. From September 2013 to April 2014, I find that the evidence shows the Sponsor was a student having embarked on a BTEC QFC course and as such required a CSI. Therefore it follows that, at the date of application by the Appellant for a residence card (1st April 2015) there was not sufficient evidence to show that the Sponsor was exercising treaty rights in accordance with the Regulations for a continuous period of five years preceding the date of application.
13. Accordingly the decision of the FtT is set aside for material error. I re-make the decision allowing the Secretary of State’s appeal against the First-tier Tribunal and substituting the following decision.

Notice of Decision
The appeal of Opeyemi Ayodele Tayo against the Secretary of State’s decision to refuse him a residence card is hereby dismissed.
No anonymity direction is made.
No fee award is made.

Signed C E Roberts Date 28 March 2017

Deputy Upper Tribunal Judge Roberts