Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/34684/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 January 2017
On 25 January 2017

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

ERIC BOADI

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Adewole, Solicitor, Ansong Associates
For the Respondent: Mr P. Nath, Home Office Presenting Officer

DECISION AND REASONS

1. This appeal comes back before me for the re-making of the decision, following a hearing before me on 17 October 2016 at which I found that the First-tier Tribunal ("FtT") had erred in law in its decision on the appellant's appeal, and whereby I set aside the decision of the FtT.
2. The further background to the appeal, and my reasons for having found an error of law in the FtT's decision, are set out in the error of law decision which I reproduce in full as follows:
"1. The appellant is a citizen of Ghana born on 25 April 1980. He made an application on 16 June 2015 for a residence card. The respondent decided on 19 November 2015 to refuse that application and indeed to revoke the residence card that he presently had.
2. The respondent's decision in terms of revocation and refusal of a residence card identified the issue as being that the documents in relation to the appellant's former spouse's employment do not cover the date of the divorce which was 20 May 2014. It is said in the respondent's decision that the period only covered from 27 July 2012 up to 28 March 2014.
3. It is accepted by both parties that in order to establish his right to a residence card in these circumstances pursuant to regulation 10(5) of the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations") the appellant has to establish that his former spouse was exercising Treaty rights at the date of the divorce. The respondent's conclusion in the decision letter was that that had not been established.
4. The appeal against the respondent's decisions came before First-tier Tribunal Judge Fox on 23 February 2016. Materially, Judge Fox in dismissing the appeal said at [10] that it was clear from the documents that the period of employment covered by the evidence in relation to the appellant's former spouse was 27 July 2012 to 28 March 2014. He noted that the date of divorce was 20 May 2014. Accordingly, he concluded that the appellant was not able to establish that his former wife was exercising Treaty rights at the date of the divorce.
5. In the grounds of appeal against Judge Fox's decision it is argued that documents were in fact before him which established that the former spouse was in employment at the date of the divorce. Reference is made in the grounds to payslips and P45s which cover May and June 2014.
6. A perusal of the Tribunal's file indicates that some documents were returned to the appellant's solicitors as indeed the grounds suggest. Those were returned on 31 March 2016. Those documents consist of a covering letter from the appellant's representatives dated 14 January 2016 enclosing P45s for April 2014 and payslips for May and June 2014. Copies of those documents are on the Tribunal's file.
7. It seems clear to me therefore, that there was on the Tribunal file documents which, at least on the face it, indicate that there was a period of employment at the date of the divorce. Those documents were not taken into account by Judge Fox, perhaps because he was not aware of their existence. It does seem that there was no dedicated bundle of documents prepared for the hearing before the First-tier Tribunal and the appeal was dealt with on the papers.
8. In submissions with reference to various aspects of those documents, Ms Isherwood sought to persuade me that any error of law in the judge's failure to take into account documents was immaterial because of anomalies in them. For example, the payslips were said not to match the dates of employment as shown on the payslips. It was also said that the P45s indicate that no pay was actually received, which it is contended was another anomaly.
9. In response, Mr Adewole explained, again with reference to the dates on the P45s, why it is the case that the respondent's submissions are not tenable in terms of materiality.
10. In response to Ms Isherwood's further contention that the application for a residence card says nothing at all about any employment by the appellant's former spouse, Mr Adewole contended that even if that is the case, which it seems to be, there were nevertheless documents before the First-tier Tribunal which needed to be considered.
My assessment
11. I am satisfied that Judge Fox erred in law in failing to take into account the documents to which I have referred. I am satisfied that the error of law is material, thus requiring the decision to be set aside so that the decision needs to be re-made in the Upper Tribunal, this not being a case requiring the matter to be remitted to the First-tier Tribunal in accordance with the Senior President's Practice Statement at paragraph 7.2.
12. There was in fact no bundle of documents before me on behalf of the appellant although it was said it was sent to the First-tier Tribunal and to the respondent. Ms Isherwood did not have a copy of that bundle either. In those circumstances, the decision could not be re-made on the day of the hearing before me. There will have to be a further hearing.
13. It is necessary to make directions for the forthcoming resumed hearing. Those directions are as follows:
(i) there must be a comprehensive, indexed and paginated bundle submitted on behalf of the appellant, filed and served no later than 7 days before the next date of hearing.
(ii) the bundle is to include a witness statement from the appellant drawn in sufficient detail to stand as evidence-in-chief, such that there is no need for any further examination in chief.
14. Needless to say, evidence served on behalf of the appellant must deal with all relevant issues."
3. For the resumed hearing, on behalf of the appellant there was a further bundle of documents which was relied on, consisting of 317 pages. However, Mr Nath had not has sight of it before the hearing. After a short adjournment to allow him time to consider it, and to discuss the documents with Mr Adewole, he was able to proceed.
4. It was agreed between the parties that in order to establish his entitlement to a residence card as confirmation of a retained right of residence, the appellant needs to meet the requirements of regulation 10(5) of the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations"). Reg 10, as it applied at the date of the respondent's decision, and so far as material, provides as follows:
" '10.-Family member who has retained the right of residence'
(1) In these Regulations, 'family member who has retained the right of residence' means, subject to paragraph (8), a person who satisfies the conditions in paragraph (2), (3), (4) or (5).
?
(5) A person satisfies the conditions in this paragraph if-
(a) he ceased to be a family member of a qualified person or of an EEA national with a
permanent right of residence on the termination of the marriage or civil partnership of that
person;
(b) he was residing in the United Kingdom in accordance with these Regulations at the
date of the termination;
(c) he satisfies the condition in paragraph (6); and
(d) either-
(i) prior to the initiation of the proceedings for the termination of the marriage or
the civil partnership the marriage or civil partnership had lasted for at least three
years and the parties to the marriage or civil partnership had resided in the United
Kingdom for at least one year during its duration;
?
(6) The condition in this paragraph is that the person-
(a) is not an EEA national but would, if he were an EEA national, be a worker, a
self-employed person or a self-sufficient person under regulation 6; or
(b) is the family member of a person who falls within paragraph (a)."
5. Reg 15 is also relevant. Materially, it provides as follows:
"15.- Permanent right of residence
(1) The following persons shall acquire the right to reside in the United Kingdom permanently-
?
(f) a person who-
(i) has resided in the United Kingdom in accordance with these Regulations for a
continuous period of five years; and
(ii) was, at the end of that period, a family member who has retained the right of
residence."
6. As can be seen from the error of law decision, the matter in issue is the extent to which the appellant's spouse was exercising Treaty rights at the date of the divorce from the appellant. It is uncontentious that the divorce occurred on 20 May 2014.
7. Initially, with reference to the documents in the bundle produced for this, the resumed hearing, Mr Nath submitted that the evidence did not establish that the appellant met this requirement of the EEA Regulations, because the appellant's ex-wife's payslips that were relied on only went up to 28 March 2014. That was exactly the same position as applied at the date of the hearing before the FtT.
8. However, what was omitted from the bundle relied on were the documents to which I referred in the error of law decision and which resulted in my setting aside the decision of the FtT. Those documents included payslips for the appellant's wife dated 30 May 2014 and 30 June 2014.
9. Having considered those documents, it was then conceded on behalf of the respondent that the appellant had established that his ex-wife was employed as at the date of their divorce on 20 May 2014.
10. None of the other requirements of the EEA Regulations were in dispute, that is in terms of his residence in the UK before and at the date of termination of the marriage, and the duration of the marriage for at least three years in the UK. There was also undisputed evidence of the appellant's employment up to the date of hearing.
11. Mr Nath conceded therefore, that the appellant had established that he met the requirements of the EEA Regulations in terms of his entitlement to a residence card as a family member who has retained the right of residence. The appellant has thus acquired a permanent right of residence in the UK in accordance with reg 15(1)(f).
12. Mr Adewole confirmed that he did not advance any argument in relation to Article 8 of the ECHR.
13. I am satisfied therefore, that the appellant's appeal is to be allowed under the EEA Regulations.

Decision
The decision of the First-tier Tribunal involved the making of an error on a point of law. Its decision having been set aside, I re-make the decision, allowing the appeal under the EEA Regulations.

Upper Tribunal Judge Kopieczek 24/01/17