Tribunal decisions

The decision

IAC-AH-co-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/32700/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 9 March 2017
On 27 March 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Asad Khan
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr Bates, Senior Home Office Presenting Officer
For the Respondent: Mr Khan, Prestige Solicitors

DECISION AND REASONS
1. I shall refer to the appellant as the respondent and the respondent as the appellant (as they appeared respectively before the First-tier Tribunal). The appellant, Asad Khan, was born on 3 March 1984 and is male citizen of Pakistan. The appellant applied for a Residence Card as confirmation of a right to reside in the United Kingdom but his application was refused by the respondent on 6 October 2015. He appealed to the First-tier Tribunal (Judge O R Williams) which, in a decision promulgated on 3 August 2016, allowed the appeal. The Secretary of State now appeals, with permission, to the Upper Tribunal.
2. There are two grounds of appeal. The first concerns an alleged failure by the First-tier Tribunal to give adequate reasons. The appellant had attended the hearing before the First-tier Tribunal and gave oral evidence as did his partner, Ms Anna Berkyoba who gave her evidence by way of British Sign Language (BSL). The appeal turned on the respondent’s contention that insufficient evidence had been produced by the appellant to demonstrate that his partner (Ms Berkyoba) was exercising or had exercised Treaty Rights as a worker/as a student/holds comprehensive sickness insurance. Judge Williams at [11] concluded the appellant had been a student (a finding which does not appear to have been challenged by the respondent). Likewise, the judge found that there is no requirement for the EU citizen, Ms Berkyoba, to maintain comprehensive sickness insurance. At [13], Judge Williams stated:
Thirdly, with regard to the evidence of the Union citizen exercising Treaty Rights as a worker; the appellant’s evidence and the Union citizen’s evidence in relation to the Union citizen’s job as a cleaner was consistent and credible and I have no reason to disbelieve it. In particular, the fact that the Union citizen started working in July 2013; she works regularly for two-three people; that she gets paid in the range of £10 - £20; that she is self-employed; that she is paid in cash; that they arrange the work on an ad hoc basis by walking round local streets knocking at doors; the appellant communicates on the Union citizen’s behalf; that the hours of work are generally between 11 a.m. – 2 p.m.; that she generally works on Wednesdays, Thursdays and Fridays; transactions are written down; that the cash is kept in the Union citizen’s purse (as opposed to being deposited in a bank); that they take cleaning materials that they purchase themselves from the chain store.
3. Considering the documentary evidence, the judge went on at [14] to say:
Fourthly the appellant has provided some documentary evidence of being registered as self-employed (AB paragraph 43 – 44). Whilst this evidence is limited, it does corroborate the oral evidence and so on balance, having regard to the matter in the round, I allow the appeal.
4. The respondent asserts that the judge should have adopted a cautious approach where supporting evidence should have been available but was not provided. The Secretary of State asserts that “one would expect to see evidence of tax contribution and accounts.”
5. I acknowledge that the analysis at [14] is somewhat brusque. The judge does, however, refer to the documentary evidence provided, that is the registration of the sponsor with HMRC for tax purposes. It must be remembered that the judge was dealing here with a woman who is a cleaner, who is self-employed and who is paid cash in hand. She has, quite properly, registered with HMRC but, given the particular nature of employment, I can see no reason why the judge should have doubted the evidence of her exercise of Treaty Rights simply because her work did not generate the documentary evidence which one might expect, for example, from an individual employed by a large or medium sized employer and who receives a monthly income evidenced by wage slips. The elements of the work carried out by Ms Berkyoba and to which the judge refers at [13] were only ever likely to be corroborated by way of oral testimony. The judge had the advantage of hearing the oral evidence from both witnesses and it was his task to assess the credibility of that evidence. The judge was entitled to make findings of fact on the evidence before him and I can see no reason to interfere with the judge’s findings simply on account of the fact that the documentary evidence adduced by the appellant was “limited”.
6. The second ground of appeal is without merit. At the end of his decision, Judge Williams allows the appeal “under the Immigration Rules.” The Secretary of State submits that the judge did not have the power to allow the appeal in that way because the application had been made under the EEA Regulations. The Secretary of State relies on Katsonga (“Slip Rule”; FTT’s general powers) [2016] UKUT 00228 (IAC) in particular at [10]:
We do not think that the power under the slip rule enables a decision to be reversed at the instance of the losing party. Once a decision has been given in a particular sense it may be subject to setting aside under rule 32 or the appellate process. In all other respects, having made and sent out the decision, Judge O'Rourke was functus. For the foregoing reasons we regard the purported use of the slip rule to produce the second determination in the present case as ineffective. We allow the appeal against the second determination on the grounds that the First-tier Tribunal had no jurisdiction to make that second determination.
7. I find that Katsonga may be distinguished from the circumstances in the instant appeal. Judge William’s decision leaves no doubt at all that he intended to allow the appeal rather than dismiss it. That was not the case in Katsonga. The reference to the “Immigration Rules” it is, in my opinion, nothing more than a slip or “template” error. Ignoring or removing the reference to the Immigration Rules does not have the effect of reversing the decision.
8. In the circumstances, I find that the appeal should be dismissed.

Notice of Decision
This appeal is dismissed.
No anonymity direction is made.

Signed Date 20 March 2017

Upper Tribunal Judge Clive Lane