Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/32697/2015

THE IMMIGRATION ACTS

Heard at Field House
Notice Promulgated
On 6 December 2016
On 3 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

mrs monique do rosario
(ANONYMITY DIRECTION not made)

Respondent

Representation:

For the Appellant: Mr S Staunton, Senior Home Office Presenting Officer
For the Respondent: No appearance

NOTICE

Background
1. The appellant in this case is the Secretary of State and the respondent is Mrs Monique Do Rosario. However for the purposes of the Upper Tribunal I refer to the parties as they were before the First-tier Tribunal where Mrs Do Rosario was the appellant. Mrs Do Rosario is a citizen of Brazil born on 22 June 1986 and appealed to the First-tier Tribunal against the respondent's decision of 10 September 2015 to refuse her a residence card as confirmation of a right to reside in the United Kingdom as a family member of an EEA national exercising treaty rights under the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations").
2. In a decision promulgated on 12 April 2016 Judge of the First-tier Tribunal Wilson allowed the appellant's appeal. The respondent appealed to the Upper Tribunal with permission. The appeal came before me. In a decision promulgated on 20 October 2016 I set aside the decision of Judge Wilson in its entirety with no findings preserved. That decision is appended to this Decision and Reasons.
3. The appellant's appeal therefore against the Secretary of State's decision of 10 September 2015 was due to be re-made in the Upper Tribunal by me at a hearing on 6 December 2016, the hearing on 5 October having been adjourned by consent at the request of Mrs Do Rosario's representatives due to late instructions. However, the Upper Tribunal received a letter dated 5 December 2016 by fax and by post from the appellant's representatives, RBS Solicitors informing the Upper Tribunal that their client no longer wished to proceed and asked for the appellant's appeal to be withdrawn.
4. Although the Upper Tribunal in a notice, also dated 5 December 2016, indicated that the application to withdraw had been received at 15:36pm and therefore the Upper Tribunal Judge was not prepared to withdraw it at such a late stage without giving the Secretary of State an opportunity to respond to the application, there was no appearance by or on behalf of Mrs Rosario. In the absence of a decision by the Upper Tribunal to consent to the withdrawal Mrs Rosario's appeal remained before the Upper Tribunal and it is regrettable that she and her representative choose not to attend.
5. I considered the Tribunal Procedure (Upper Tribunal) Rules 2008 including Rule 2 - the overriding objective and Rule 28. I was satisfied that the parties had been properly notified and that it was in the interests of justice to proceed. However a further fax was received after the hearing from Mrs Do Rosario's representatives indicating that they were withdrawing from acting and that their instructions were that Mrs Do Rosario wished to withdraw her appeal.
6. Mr Staunton indicated that he had no objection to the withdrawal. I therefore considered Rule 17 of the Procedure Rules. I consent to Mrs Rosario withdrawing her case from the Upper Tribunal. This is a notice therefore pursuant to Rule 17(5) to inform the parties that Mrs Rosaria has withdrawn her appeal.
7. The effect of the case being withdrawn from the Upper Tribunal is that the proceedings before the Upper Tribunal are now at an end. As the Upper Tribunal set aside the First-tier Tribunal's decision promulgated on 20 October 2016 the effect is that the Secretary of State's decision dated 10 September 2015, refusing Mrs Rosario's application for a residence card remains a lawful decision.
Notice of Decision

The appeal is withdrawn.

No anonymity direction was sought or is appropriate in this case and none is made.

Signed Date: 30 December 2016

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

No fee application was made or no fee award is appropriate in this case.

Signed Date: 30 December 2016

Deputy Upper Tribunal Judge Hutchinson

APPENDIX

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/32697/2015

THE IMMIGRATION ACTS

Heard at Field House

On 5 October 2016

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Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

MRS MONIQUE DO ROSARIO
(ANONYMITY DIRECTION NOT MADE)

Respondent

Representation:

For the Appellant: Mr N Bramble, Senior Presenting Officer
For the Respondent: Mr J Rene, Counsel, instructed by RBS Solicitors

DECISION ON ERROR OF LAW AND DIRECTIONS

1. Although the appellant in this case is the Secretary of State I refer to the parties as they were before the First-tier Tribunal where Mrs Monique Rosaria was the appellant. Mrs Rosaria is a citizen of Brazil born on 22 June 1986. She appealed to the First-tier Tribunal against the respondent's decision of 10 September 2015 to refuse the appellant a residence card as confirmation of her right to reside in the United Kingdom as the family member of an EEA national exercising treaty rights, under the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations").
2. The appellant's appeal was considered on the papers by Judge of the First-tier Tribunal Judge MJH Wilson. In a decision promulgated on 12 April 2016 Judge Wilson allowed the appellant's appeal. The respondent appealed with permission.
Error of Law
3. The appellant's original application was refused on the basis that the appellant had failed to show that her EEA national sponsor was a qualified person within the meaning of the EEA Regulations as there was insufficient evidence that he was a worker. The respondent had noted that he was unable to verify that the sponsor was employed with Cofley Gdf-Suez, because the sponsor had said he was no longer working with the company and the respondent was further unable to verify by telephone another claimed employer, Appsolute Solutions Brazilian Ltd as the respondent was unable to make no contact with this employer.
4. Judge Wilson was satisfied that the sponsor was employed by Cofley GDF-Suez in the three months prior to the application, which was made on 4 April 2015, as this was confirmed by the evidence including payslips. The payslip evidence also confirmed that the sponsor continued to be employed by Cofley GDF-Suez for just short of two months after the application. Judge Wilson went on to find that there was further evidence that the sponsor was a worker in the form of payslips from Appsolute Solutions Ltd Brazil Limited covering a period from February 2015 until the end of August 2015. The judge was satisfied therefore that there was satisfactory evidence showing that the sponsor was a worker in the United Kingdom. The judge noted that the sponsor was due to commence employment with a third company, Compass Group UK & Ireland, the appellant having submitted the sponsor's pre-work documentation on appeal. It was the judge's conclusion that the sponsor had wasted little time in obtaining new employment following what was said to be the collapse of Appsolute Solutions Brazilian Limited restaurant business.
5. The judge was satisfied having regard to all of the evidence that the sponsor was a worker within the meaning of Regulation 6 of the EEA Regulations.
6. It was the respondent's case that the judge erred as he had no evidence before him that as at the date of the hearing the sponsor was exercising EEA treaty rights. The Secretary of State relied on Boodhoo and Another (EEA Regs: relevant evidence) [2013] UKUT 00346 (IAC) which confirms that the relevant date is the date of the hearing. The respondent noted that although the appellant provided documents showing the sponsor was employed in August 2015, these predate the hearing by eight months and do not confirm employment at the correct time.
7. It seems to me that much of the difficulty in this case arises because the case was considered on the papers. The appellant submitted information that was available at the time of the appeal, which was made shortly after the decision by the respondent, in September 2015. Although arguably it is difficult to see what further information the appellant and the sponsor could have submitted at that date, the letter provided dated 20 July 2015 from Compass Group UK & Ireland confirmed that the appellant was commencing employment on 21 July 2015. Therefore the sponsor may have had payslips by 17 September 2015 when the appeal was submitted. In any event, the matter was not considered by the First-tier Tribunal until Judge Wilson considered it on 1 April 2016. There was initially an issue in relation to the appeal being out of time which may have led to the delay.
8. However, on 5 February 2016 the Tribunal issued a notice indicating that the Tribunal had decided that the appeal should proceed, being satisfied that by reason of special circumstances it would be unjust not to extend time. The Tribunal then issued another notice, dated 9 February 2016, to both the appellant and the respondent in the First-tier Tribunal. It was indicated that both parties were to provide any further written evidence or submissions that they wished to make to the Tribunal by 8 March 2016. No further information was received.
9. Although it may be argued that the appellant might not have been aware that further evidence of the sponsor's employment should have been submitted, given that she would not have been aware when the decision was to be made, there are a number of difficulties with this argument not least that the First-tier Tribunal issued a notice in February 2016 in relation to the submission of any further evidence. I note that Mr Rene, although he did not concede the appeal did not pursue it with any force and in effect did not dispute that further evidence should have been submitted.
10. The appellant's original appeal in September 2015 did not submit evidence of actual employment at that date. Rather there was evidence that the appellant was due to take employment in July 2015. Although arguably at that date the sponsor remained a qualified person, the judge failed to address the circumstances at the date of the hearing over six months later. The judge's findings at [10] were only that the sponsor 'was' a worker. I am further satisfied that the judge erred, in this context, in not adjourning his consideration of the appeal to allow the appellant an opportunity to produce further up to date information as to whether the sponsor remained a qualified person under Regulation 6 of the EEA Regulations.
Remaking the Decision
11. The decision of the First-tier Tribunal therefore contains a material error of law and is set aside in its entirety. No findings are preserved. Although I was minded to remake the decision at the hearing the appellant's representative indicated that instructions were only received by instructing solicitors the night before the Upper Tribunal hearing and further information had therefore not been produced. Mr Bramble had no objection to a short adjournment. It was agree by both parties that the Upper Tribunal could remake the decision given that the issue is narrow and confined to whether or not the sponsor is a qualified person. The appeal will therefore be reheard in the Upper Tribunal on 6 December 2016.

Notice of Decision on Error of Law

12. The appeal by the Secretary of State is allowed. The First-tier Tribunal's determination contains an error of law capable of affecting the outcome of the appeal and is set aside.

13. The decision on the appeal will be remade by a single judge of the Upper Tribunal on 6 December 2016.

Directions

The appellant is to file and serve a consolidated bundle of evidence so that it is received no later than 22 November 2016. The bundle is to separately tabulate: (i) the evidence relied upon before the First-tier Tribunal; and, (ii) the additional evidence that it is now sought to rely upon before the Upper Tribunal. The bundle must include (a) evidence of the sponsor's current employment including in the form of original pay slips with corresponding original bank statements, (b) evidence of the sponsor's employment since the date of decision in the same form.

Any failure to comply with these directions may lead the Tribunal to exercise its powers to decide the appeal without a further oral hearing, or to conclude that the defaulting party has no relevant information, evidence or submissions to provide.

No anonymity direction is made.

Signed Date: 19 October 2016

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

I make no fee award.

Signed Date: 19 October 2016

Deputy Upper Tribunal Judge Hutchinson