The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/34164/2013


Heard at Glasgow
Determination Promulgated
On 18 July 2014
On 9 September 2014






For the Appellant: Mr C H Ndubuisi, Drummond Miller
For the Respondent: Mrs M O'Brien, Home Office Presenting Officer

1) This is an appeal with permission against a decision by Judge of the First-tier Tribunal Wallace dismissing an appeal brought against a refusal by the respondent to issue the appellant with a residence card under regulation 17(1) of the Immigration (European Economic Area) Regulations 2006.
2) The appellant is a national of Nigeria born on 19 December 1986. On 4th June 2013 she applied for the residence card as the spouse of a Czech national, Mr Ivo Nagy. The application was refused by the respondent in a decision dated 6 August 2013 on the basis that the appellant had not shown that her spouse was an EEA national exercising Treaty rights in the UK.
3) The decision of the Judge of the First-tier Tribunal was largely concerned with whether the appellant had submitted a valid passport or identity card for her spouse with her application. The appellant maintained that she had submitted a Czech passport for Mr Ivo Nagy. The respondent maintained, however, that before the refusal decision was made the passport was declared by the Czech authorities to have been lost or stolen. The view taken by the Judge of the First-tier Tribunal was that it was an essential requirement for the appellant to produce a valid ID card or a passport for her EEA spouse and she had been unable to do this. It was part of the evidence before the First-tier Tribunal that the appellant and her husband were estranged.
4) Permission to appeal was granted on the basis that the Judge of the First-tier Tribunal arguably erred in dismissing the appeal on the ground that the appellant had not produced a valid identity document for her EEA national spouse and on the basis that the judge had failed to make a finding as to whether the EEA national was exercising Treaty rights in the UK.
5) At the hearing before us Mr Ndubuisi relied on the grounds in the application. He submitted that in terms of regulation 17(1)(a) of the EEA Regulations the person who is required to produce a valid passport is not the EEA national but the non-EEA national family member making an application for a residence card. The case of Barnett and Others (EEA Regulations: rights and documentation) [2012] UKUT 00142 was relied upon as the authority for this. Notwithstanding that the requirement in regulation 17(1)(a) was for the appellant to produce a valid passport of her own, not of her spouse, it was submitted that at the time the application was made the passport for the appellant's spouse, Ivo Nagy, was valid. It was suggested that the appellant's spouse had declared the passport lost while the appellant's application was with the Home Office because he needed a passport in order to travel. No information had been provided by the respondent as to when the passport had been declared lost by the Czech authorities.
6) It was further submitted that the judge did not at any point make a finding as to whether the appellant's spouse was exercising Treaty rights as a worker, which was the basis on which she had made her application. By failing to make such an application the judge had erred in law. It was submitted that the judge appeared to be under the misapprehension that, as the appellant was estranged from her husband, she could no longer be treated as a family member, even though the marriage had not been dissolved. The question was whether the marriage had been dissolved and not whether the couple were residing together.
7) It was pointed out to Mr Ndubuisi that notwithstanding the wording of regulation 17(1)(a), the appellant would still be required to produce evidence of her relationship with an EEA national in order to satisfy Regulation 17(1)(b). Mr Ndubuisi submitted that documentary evidence establishing this was produced. It was pointed out to him, however, that this did not include evidence of nationality. Mr Ndubuisi submitted that the passport was valid although it had expired and been declared lost. It was valid at the time of the application and the respondent had then taken some months to make a decision.
8) For the respondent, Mrs O'Brien submitted that once the respondent was informed that the passport was stolen, then it could not longer be relied upon.
9) Mr Ndubuisi then turned to the evidence relating to the appellant's husband's employment in the exercise of Treaty rights. He submitted that payslips had been provided showing the appellant's husband was a qualified person. Although the respondent had received information to say the company employing the appellant's spouse had been dissolved, this did not affect his employment. There was also a letter from the employer. Mr Ndubuisi acknowledged, however, that he did not have up-to-date information about the appellant's spouse's employment. It was not known if he was still in the UK, although he was in the UK at the date of the respondent's decision, according to the appellant's evidence. It was not known if he was in the UK at the date of the decision of the First-tier Tribunal.
10) In order to succeed in this appeal it was not enough for the appellant to show that she was married to an EEA national. In order to qualify for the issuing of a residence card as a non-EEA national family member she had to show that her husband was exercising Treaty rights in the UK. The Treaty rights the appellant claimed her husband was exercising were those of a worker. She produced payslips for the period from late September 2012 to March 2013 and a letter dated 22 April 2013 from his purported employer, Africans United Media Ltd.
11) The respondent's reasons for refusal letter of 6 August 2013 states that in order to assess the wage slips and employer's letter the respondent undertook various checks to verify the employment but was unable to do so satisfactorily because the company concerned had been dissolved at Companies House. The letter further states that every attempt had been made by the UK Border Agency (as it then was) to establish the appellant's EEA family member's employment but the burden of proof rested with her to provide such evidence and she had failed to do so.
12) We note that in the decision of the Court of Appeal in Amos [2011] EWCA Civ 552 it was observed that the procedure before the Tribunal is essentially adversarial: the appellant seeks to show that the decision of the Secretary of State is unlawful or otherwise wrong. The Secretary of State must present the facts as known to her fairly and seek a decision of the Tribunal that accords with the law, but to go beyond those requirements would be irrational in the sense that "it would be to require the Secretary of State to take steps to prove that her own decision was wrong." Accordingly we accept that the basis on which the Secretary of State approached the issue of the appellant's husband's employment in the reasons for refusal letter was correct. The Secretary of State would seek to verify the employment and trace information available to the department but it was for the appellant to supply information showing the requirements had been met, which she failed to do.
13) At the hearing before the First-tier Tribunal, the evidence was little different from the evidence before the Secretary of State, save that the appellant gave oral evidence asserting that her husband was in employment. She was, however, unable to produce, any further documentary evidence beyond the payslips and the employer's letter already filed, on which, as the respondent pointed out, little reliance could be placed. Mr Ndubuisi submitted before us that notwithstanding the dissolution of the company employing the appellant, the employment had nevertheless continued. In the absence of any substantive evidence supporting this assertion, we find it difficult to place any weight upon it. We acknowledge that there are circumstances in which companies are dissolved for legal rather than financial reasons, for example because of failure to make a return, and are then reinstated, but there is no evidence before us to show that this is how this particular company was affected and that it has indeed been reinstated.
14) Furthermore, even if the appellant's husband was employed in April 2013, as the employer's letter indicates, there was nothing to show he remained employed at the date of the respondent's decision, 6 August 2013, and nothing to show he has been in employment in the UK since then. Indeed, the appellant was herself uncertain as to whether he had remained in the UK after the date when the respondent's decision was made.
15) With these matters in mind we find that the Judge of the First-tier Tribunal should have made a decision on whether the appellant's husband was exercising Treaty rights in the UK but the judge did not do so. On the evidence before her, however, there is only one decision which she could have reached, which was that the appellant's husband was not, at the date of the respondent's decision, 6th August 2013, exercising Treaty rights in the UK. The appellant was not able to show that she was entitled to a residence card as a family member of an EEA national exercising Treaty rights in the UK and accordingly the judge was correct to dismiss the appeal, albeit there were defects in her reasoning.
16) We further observe, although this is not material to our decision, that this outcome does not infringe or impede any exercise by the appellant's husband of his rights of free movement as an EEA national. As the appellant and her husband are estranged and are no longer living together, her husband is free to enter or leave the UK and to work here as an EEA national, or not, without any interference with his rights arising from the appellant's lack of status.
17) As far as the appellant's husband's passport was concerned, we accept that in terms of regulation 17(1)(a) it was the appellant herself who was required to produce a valid passport. It was nevertheless still incumbent upon her under regulation 17(1) read as a whole to show that she and her husband was married and that her husband was an EEA national. We accept that the Judge of the First-tier Tribunal allowed herself to be side-tracked away from the main issue in this appeal into addressing the questions of whether the appellant's husband's passport had to be produced under regulation 17(1)(a) and, if so, whether the passport was valid. To the extent that the judge went down this route, she asked herself the wrong question. The questions she should have asked were, notwithstanding that the appellant had produced a valid passport for herself under regulation 17(1)(a), was she able to show that her husband was an EEA national and that he was exercising Treaty rights in the UK at the material time. There were deficiencies in the evidence both in relation to the appellant's husband's nationality and in relation to his exercise of Treaty rights. On the basis of the evidence, even if it was accepted that the appellant's husband was an EEA national, the appellant was unable to show that he was exercising Treaty rights as a worker in the UK. Because of this the appeal could not succeed.
18) The position is that the judge reached the correct conclusion although there were defects in her reasoning. Having regard to the evidential position before the Tribunal, however, we do not consider it necessary to set the decision aside and re-make it. The only decision the judge could properly have made on the evidence before her was to dismiss the appeal.
19) The making of a decision of the First-tier Tribunal did not involve the making of an error on a point of law such that the decision should be set aside.
20) The First-tier Tribunal did not make a direction for anonymity. We do not see any need for such direction and no submission has made to us with regard to this.

Signed Date

Upper Tribunal Judge Deans