Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/36375/2014

THE IMMIGRATION ACTS

Heard at Field house
Decision & Reason Promulgated
On 24 February 2017
On 29 March 2017

Before

UPPER TRIBUNAL JUDGE HANSON

Between

EBHODAGHE GODDY EDOGUN
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Soloman instructed by MA Solicitors
For the Respondent: Ms Isherwood Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against a decision of First-tier Tribunal Judge Chapman (‘the Judge') who in a decision promulgated on 18 July 2016 dismissed the appellant’s appeal against the refusal of the Secretary of State to issue a Residence Card pursuant to regulations 10 and 15 of the Immigration (European Economic Area) Regulations 2006, on the basis of a retained right of residence following his divorce from his EEA spouse. The appellant was claiming a right of permanent residence in the UK.
2. The appellant is a citizen of Nigeria born on 3 January 1966. He entered the United Kingdom in 1998. He married on 7 July 2003 and on 23 July 2003 applied for a residence card which was issued on 2 August 2003, valid to 2 August 2008. The marriage failed and the appellant’s divorce was terminated by a Decree Absolute dated 18 August 2008, after which the appellant applied for a residence card in recognition of a right to permanently reside in the United Kingdom. This was refused by the respondent against which the appellant appealed. In a decision promulgated on 12 March 2010 it was found “there is a singular lack of evidence to corroborate the appellants claim that his ex-wife worked at the material time…". On 2 October 2012, the appellant made a similar application which was refused on 14 June 2013. The appellant’s appeal against this rejection succeeded to the limited extent that the First-tier Tribunal judge allowed the appeal to the extent that the Secretary of State was to give further consideration to the application having conducted checks with HMRC to establish whether or not the appellant’s former wife was exercising treaty rights during the relevant period. The respondent obtained a statement from HMRC which stated they had been unable to trace any record relating to the appellant’s spouse with the information regarding her that had been provided. On 2 September 2014, the respondent made a fresh decision in light of this information, maintaining the refusal of the permanent residence card application, whilst accepting that the marriage had lasted for three years although with it not being accepted that there had been one year’s cohabitation in the United Kingdom. The decision-maker raised the further concern set out at [10] of the decision under challenge. The appeal against this matter came before First-Tribunal Judge Cox who remitted the decision to the respondent for a fresh consideration as it was said the respondent had not considered the best interests of the children. The Secretary of State appealed the decision to the Upper Tribunal and, in a decision promulgated on 20 May 2016, Upper Tribunal Judge Storey allowed the appeal and remitted the case to the First-tier Tribunal for a fresh decision to be made, directing that the only matter for consideration was the respondent’s decision of 2 September 2014 refusing to issue the permanent residence card. This was the decision that came before the Judge.
3. Having considered the evidence with the required degree of anxious scrutiny the Judge sets out the findings at [31 – 43] of the decision.
4. The Judge made the following findings set out at [32] in the following terms:

i. The appellant married an EEA national on 7 July 2003.
ii. Their marriage terminated in divorce on 18 August 2008.
iii. The appellant was issued a residence card on 2 August 2003, valid until 2 August 2008. At the time of issuing the card the respondent was satisfied that the EEA national spouse was exercising treaty rights in the United Kingdom.
iv. The residence card was not revoked.
v. Prior to its termination, the marriage had lasted for at least three years, and the parties had resided in the United Kingdom for at least one year during its duration.

5. The Judge noted at [33] that the key issue in the appeal was whether the EEA national was exercising treaty rights during the marriage, and whether she was doing so at the time the marriage was terminated. The appellant gave evidence to that effect but it was acknowledged that there was no other evidence to support his claim.
6. This is an issue considered by the previous First-tier Tribunal judge in 2010, who did not find the appellants evidence to be credible in relation to this issue and who found the “singular lack of corroborative evidence” to be striking. The Judge found this accorded with the circumstances before the most recent First-tier Tribunal [34].
7. At [35] the Judge found the position had not changed since 2010 and that the appellant was still not in a position to provide any evidence, other than his own recollection, that his former wife was working during the marriage or at the time of the divorce. The Judge continued:

“….. Notwithstanding that he was still in contact with his former spouse, and notwithstanding that he knew about the documentation that Judge Baldwin found to be so strikingly missing, he has not produced anything further, nor has he provided any further explanation as to why he is unable to do so. I note, in particular, that the appellant’s own evidence to Judge Baldwin was that he was the sole director of a company called Al-faquays Ltd, for which his wife was the Company Secretary. It is not unreasonable to expect that he could, in his own right without relying on the help of his wife, have obtained documentation from HMRC or Companies House to demonstrate that he and she were involved in this company, but he has not done so.”

8. In [37] the Judge noted an attempt was made to resolve the issue with his former wife’s employment by enquiries having been made with HMRC who stated they have no trace of any record to assist. The Judge disregarded this evidence, but in doing so, noted it did not advance the appellant’s case because it did not prove that the appellant’s wife was working at the relevant time.
9. At [38] the Judge makes the following findings:

“I therefore find the appellant’s own evidence regarding his former wife working during the marriage or at the date of termination to be unsatisfactory, and insufficient, without other evidence, to discharge the burden on him of proving these facts. There remains, as there was when Judge Baldwin adjudicated on this matter in 2010, no additional evidence to support or confirm what the appellant claims. For these reasons, I am not satisfied that the appellants EEA national former spouse was exercising treaty rights after 2003 or at the date of termination of the marriage.”

10. Permission to appeal was sought by the appellant but initially refused by another judge the First-Tier Tribunal but granted on a renewed application by Upper Tribunal Judge Coker on the basis it was arguable “the Judge transposed findings made by First-Tier Tribunal Judge Baldwin to her own findings without assessing the evidence as it was before him. Furthermore, it is arguable the Judge failed to take account of findings made by Judge Baldwin as regards the appellant’s business and made adverse findings with regard to the appellant’s evidence without identifying the reasons. It is arguable these matters adversely affect the overall credibility findings such that the decision displays material errors of law”.

Error of Law

11. On behalf of the appellant Mr Solomon submitted there were two issues in this application being, firstly, whether the appellant’s wife was exercising treaty rights and, secondly, whether the appellant was exercising treaty rights. It is accepted the core issue was the appellant’s credibility. It is submitted that the Judge’s starting point was the decision of Judge Baldwin but that the Judge heard evidence from the appellant too.
12. The appellant had pleaded in Ground 1 of the grounds on which he sought permission to appeal that the finding by the Judge at [17] and [18] that the appellant had remained in contact with his wife was factually incorrect as the appellant’s position had changed in that there was no going contact with his former wife. It is therefore said that the finding at [34] was not open to the Judge as the Judge was concerned with contact that was not evidenced at the hearing.
13. The Judge is criticised for failing to treat the determination of Judge Baldwin as his starting point as per the Devaseelan principles. Mr Solomon submitted that the finding of the Judge at [35] is contrary to the earlier decision. It is also stated the “mortgage broker point" referred to by the Judge at paragraph [36] was not raised in the refusal or during submissions, giving rise to a procedural unfairness as the applicant was not aware of the same and had not been given a fair chance to answer the point made. It was argued that if the appellant’s credibility had been accepted it may have made a difference, especially if this led to the appellant’s evidence regarding his wife’s situation and her employment being accepted.
14. At [36] of the decision, the Judge noted the appellant told Judge Baldwin that he worked part-time but did not describe himself as a mortgage broker or mortgage adviser as he did now. The Judge found it strange that if the appellant was a mortgage broker he did not explain this to Judge Baldwin instead of using a different description of his work. The Judge also questions why he used another broker to obtain a mortgage which, on the face of it, may give rise to questions as it is not known whether lending institutions will allow a mortgage broker to process their own applications or whether a third party is required. The core finding of the Judge in this paragraph is, however, that appearing in the final sentence of [36] where the Judge states “This is inconsistent, and aside from the other credibility issues raised by Judge Baldwin, undermines his credibility in my judgement as a result of the evidence presented to me”. The source of the finding by the Judge that the appellant had claimed he was a mortgage broker, which on the face of it he had not raised previously, appears to be the appellant’s own evidence. At [17] the Judge records the oral evidence given by the appellant at the hearing and summarises that evidence including a claim by the appellant that throughout that time, i.e. the marriage, and since the divorce, he has worked as a mortgage adviser and continue to work as a mortgage adviser part-time even when he was studying for a postgraduate decree between 2006 and 2011. Any suggestion this was a matter upon which the appellant has been denied the opportunity to comment is therefore not arguably made out.
15. It is settled law that a residence card does not confer a right to reside upon an individual and that a residence card granted on an earlier occasion operates as no more than evidence that at the date it was issued the respondent was satisfied that the holder of that card was entitled to a right to reside under the EEA Regulations.
16. It is not disputed that the issues remained whether the EEA national was exercising treaty rights during the marriage. Enquiries undertaken with HMRC were inconclusive and there was therefore no evidence from this source to assist the Judge. At [33] the Judge sets out the correct test and nature of the evidence and at [34] refers to the decision of Judge Baldwin, which arguably shows the Judge was aware of the Devaseelan principles and took this decision as his starting point. That included the adverse credibility finding made against the appellant as the Judge was entitled to do. The appellant must have been aware since 2010 of the evidential problems that his claim faced yet it does not appear on the basis of the information made available to the Judge that any more evidence was available than that considered by Judge Baldwin, bar the changes referred to by the appellant in his evidence.
17. Mrs Isherwood submitted that this was, in any event, a new issue that had been raised and there was no evidence this was a matter before the Judge relied upon at the initial First-Tier Tribunal hearing.
18. Despite the criticism of the decision, the reality is that the grounds and submissions made on the appellant’s behalf fail to establish that any evidence existed to support the appellant’s assertion that his wife was exercising treaty rights or that the required test set out at [33] was made out. No evidence has been provided to the Upper Tribunal to prove this point.
19. The grounds are, in effect, a challenge the findings made by the Judge and the weight the Judge was willing to place upon the available evidence. As stated, the Judge clearly considered the evidence with the required degree of anxious scrutiny and has given adequate reasons for the findings made. As such the weight to be given to the evidence was a matter for the Judge.
20. This Tribunal reminds itself of the decision of the Court of Appeal in Amos v Secretary of State for the Home Department; Theophilus v Secretary of State for the home Department [2011] EWCA Civ 552 in which the Court ruled that the EEA national must have been exercising treaty rights up to the date of the divorce, but thereafter that is not required. What is required is that, after the divorce, the non-EEA national former spouse must himself exercise ‘treaty rights’ in the sense of being a worker or self-employed or self-sufficient. That is set out at Article 13 of the Citizen’s Directive, and is reproduced at regulation 10(6) of the 2006 Regulations. If the ‘third country national’ continues to do that up to the five-year point, he will have “resided in the United Kingdom in accordance with these regulations” and will have acquired a permanent right of residence under regulation 15(1)(f). That satisfies the requirement at Article 18 of the Citizens Directive to have been “residing legally for a period of five consecutive years in the host Member State", in order to transform a retained right of residence into a right permanent residence. But it must still be shown that the EEA national was working, or otherwise exercising treaty rights, until the termination of the marriage. If the couple separated acrimoniously and have not stayed in touch with each other, that can be difficult. Lord Justice Stanley Burnton rejected an argument that, in such a case, the Secretary of State should assist the third country national to obtain the missing information about the divorced EEA national. His Lordship stressed the “essentially adversarial” nature of immigration appeals, as opposed to the inquisitorial nature of welfare benefits adjudication. Even in a benefits case, there was no authority for the contention that the department concerned had a duty to obtain information from other government departments. Just so, in a case under the EEA Regulations, the Home Office could not be expected to ask HMRC or the Department for Work and Pensions (DWP) whether the EEA national was working or self-employed. His Lordship does allude, however to the possibility of the non-EEA national former spouse asking the Tribunal, on an appeal against the refusal of a permanent residence card, to issue a witness summons for the attendance of the EEA national under rule 50 of the Procedure Rules 2005. This is a power which is very rarely exercised, but there is no reason why it should not be in a case such as this. The judgement notes that counsel Tim Eicke QC also mentioned the possibility of seeking a direction under rule 45 for the Secretary of State to provide any information necessary for the determination of the appeal. But as the Home Office cannot be forced to obtain information from other government departments, such a direction would only yield the information which the Home Office happens to have itself, and there might be nothing at all on the un-cooperative former spouse.
21. It appears the appellant in this appeal may be in a similar position to many appellant’s in a divorce case, recognised by the Judge and previous decision-makers, of not being able to produce sufficient evidence to support his contention in relation to his former wife. It appears that the respondent has on a previous occasion attempted to assist but been advised by HMRC that they had no information that established the EEA national was exercising treaty rights as the appellant alleges. It has not been shown that the appellant exercised all rights open to him by way of applications of the type referred to by the Court of Appeal in Amos which could include not only an order compelling the former wife to attend any further appeal but also to produce necessary documents to prove whether she was exercising treaty rights at the relevant time or not.
22. On the basis information before the decision maker I do not find it has been made out that the Judge has material erred in law sufficient to warrant the impugned decision being set aside.

Decision

23. There is no material error of law in the First-tier Tribunal Judge’s decision. The determination shall stand.

Anonymity.

24. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make no such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated the 28th of March 2017