Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/32804/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 6th February 2017
On 22nd February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

inayat begum
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Jamil, instructed by Arndale Solicitors
For the Respondent: Ms R Pettersen, Home Office Presenting Officer

DECISION AND REASONS
1. This is the appellant's appeal against the decision of Judge Spencer made following a hearing at Bradford on 15th August 2016.
Background
2. The appellant is a citizen of Pakistan born on 1st January 1946. She made an application for a permanent residence card on the basis that she had lived in the UK with an EEA family member who had exercised his treaty rights for a continuous period of five years, but was refused on 22nd September 2015.
3. The appellant's son is a Spanish national. He was employed with Sweet Dream Nelson Limited from April 2005 until January 2011 when he had an accident at work and became incapacitated. He receives employment and support allowance and personal independence payment. His GP wrote a letter dated 6th October 2015 stating that he is unable to work.
4. The judge set out the relevant EEA Regulations.
5. The appellant claims that she is able to rely on Regulation 6(2)(a), namely
"A person who is no longer working shall not cease to be treated as a worker for the purposes of paragraph 1(b) if -
(a) He is temporarily unable to work as the result of an illness or accident."
6. The judge did not consider that the sponsor had established that he was not capable of work. He recorded that the appellant's oral evidence contradicted that of the sponsor and she had said that he was actually working, and he preferred that evidence. The fact that the sponsor was awarded PIP did not mean that he was not capable of working and the GP's letter was only based upon a history which had been obtained from the sponsor who was not a reliable witness. On that basis he dismissed the appeal.
The Grounds of Application
7. The appellant sought permission to appeal on the grounds that the judge was wrong to rely upon the appellant's evidence having disregarded evidence from the DWP which confirmed that the sponsor's spouse received disability allowance because she cared for him. The evidence before the Tribunal indicated that the sponsor was temporarily unable to work as a result of the accident in January 2011.
8. On 29th November 2016 Judge Grant granted permission to appeal. She observed that the findings reached by the judge were confused and unclear. He had not made any clear findings as to whether the sponsor was exercising treaty rights during the relevant period which was between March 2010 and March 2015.
9. In her reply dated 4th January 2017 the respondent acknowledged that the findings could have been better expressed but argued that the determination was sustainable.
Findings and Conclusions
10. At the hearing Ms Pettersen properly acknowledged that the decision could not stand since the judge had not addressed himself to the correct question i.e. whether the sponsor was in a position to meet the requirements of Regulation 6(2)(a) for the relevant period of time. She accepted that the payment of benefits for that period would be determinative of the issue i.e. if the appellant could show that he was receiving ESA in March 2015 it was clear that Regulation 6(2)(a) could be satisfied, since the respondent accepted that this was evidence that the sponsor was a qualified person.
11. Unfortunately the bank statements before me showed the ESA payment on 9th February 2015 but there are no statements beyond that date. Mr Jamil explained that that was because the application had to be made before the expiry of the appellant's five year residence card.
12. It was agreed between the parties that the appellant would have the opportunity to provide the bank statement showing the ESA payment in March 2015. Assuming that the ESA payment was evidenced, the appeal ought to be allowed.
13. Following the hearing I received a statement from the Halifax Bank for the sponsor's current account showing the DWP payments on 6th March and 20th March 2015. Accordingly, in line with Ms Pettersen's concession I am satisfied that the sponsor, was a qualified person, continually exercising treaty rights for the relevant period of 5 years from 2nd March 2010, and meets the requirements of Regulation 6(2)(a) at the date of the application for permanent residence.
Notice of Decision
14. The original judge erred in law. His decision is set aside. The following decision is substituted. The appeal is allowed.

No anonymity direction is made.

Signed Date 21 February 2017

Deputy Upper Tribunal Judge Taylor