Tribunal decisions

The decision

IAC-AH-KEW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/43435/2014

THE IMMIGRATION ACTS

Heard at Field House
Determination & Reasons Promulgated
On 17th October 2016
On 7th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

MRS ANA DE ABREU AFONSO
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Z Ahmed (HOPO)
For the Respondent: No legal representation

DETERMINATION AND REASONS
1. The Appellant is a female, a citizen of Angola, who was born on 9th February 1985. She appealed to the First-tier Tribunal against the decision of the Respondent, taken on 10th October 2014, refusing her application for a residence card, as confirmation of her right to reside in the United Kingdom. Her application was made under Regulation 10(5) of the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations") on the basis that she retained rights of residence following her divorce from her husband, Ireniu Da Silva, who was an EEA national.
2. The Respondent Secretary of State did not accept that the Appellant's former spouse was exercising treaty rights at the date of their divorce. She did not accept that the Appellant had submitted evidence to show that she was a person who satisfied Regulation 10(6). The application had previously been the subject of a determination by First-tier Tribunal Judge Kelsey on 16th March 2011, when the application was apparently made under Regulation 15, and Judge Kelsey had upheld the rejection of the Appellant's application on that occasion.
3. At paragraph 21 of the determination, the judge concluded as follows:
"... it appears to me that Regulation 10(6) is a requirement to be judged at the date of the application, not a requirement to be met once and for all at the time of the divorce. The Appellant has no evidence of work after the tax year 2010/11, nor is there any evidence that would show that she was self-sufficient, or a student. Her application (and this appeal) must fail as Regulation 10(6) is not satisfied" (paragraph 21).
4. The appeal was dismissed.
5. Permission to appeal was granted by the First-tier Tribunal on 17th August 2016 and on 26th September 2016, the Upper Tribunal convened to hear the appeal, but adjourned it on the basis that the Appellant's representative, Mr F. Junior of Lawland Solicitors had not attended. DUTJ Taylor observed also that the representatives had also failed to attend on one previous occasion. Attempts by the Appellant to contact the representatives on the telephone failed and the court clerk's attempt to contact them on the landline also produced no response. It is concluded, that given the complexity of the issues, the appeal could not proceed and an adjournment was granted. This was after the Senior Home Office Presenting Officer had handed up a copy of NA [2016] EUECJ C-105 (15) [13th June 2016] which it was said provided a complete answer to the points being made on the Appellant's behalf.
6. At the hearing before me on 17th October 2016, there was again no attendance by Mr F. Junior of Lawland Solicitors, but on this occasion the Appellant, appearing in person, explained that she did not expect them to attend, and all efforts made by her to contact them had proved fruitless. She had actually physically gone to their offices but the door was closed and she could not enter. She said that she had no money to instruct any other representative. She did, however, produce a detailed letter of advice sent to her by an official from the Citizens' Advice Bureau, indicating the salient Grounds of Appeal that she should be raising before this Tribunal. She relied upon these.
7. Essentially, her claim was that she satisfied the requirements of Article 13(2) in that before her divorce she was married to Irineu Da Silva for more than three years (from 2004 to 2009) and for more than a year had spent this period of marriage in the UK. She therefore had a retained right of residence after her divorce subject to the condition that Mr Irineu Da Silva continued to exercise a right to reside as a worker, self-employed person, or self-sufficient EEA national. If the Appellant's former partner had worked from 2006 to 2010, then provided that this was on a large enough scale to be "genuine and effective" she would have been exercising a right to reside up until at least 23rd November 2009, when she would have acquired a right of residence.
8. Second, if the Appellant had retained a right to reside in the UK when she divorced her husband, then she now acquired a right of permanent residence in the UK under Article 16 of Directive 2004/38 because this governs the right of EEA nationals and their family members to move and reside in the UK.
9. Third, as soon as the Appellant married her Portuguese husband in November 2004, she became a family member of an EEA national. She remained his family member until she acquired a decree absolute and was divorced from him. She would have been exercising a right to reside as his family member at any time during their marriage during which her husband was exercising a right to reside in this country as a worker or self-employed person and so on.
10. For her part, Ms Ahmed submitted that the Appellant's claim to be in the UK on the basis of retained rights was unsustainable. This is because, even before the First-tier Tribunal Judge, namely, Judge Anstis, at a hearing at Hatton Cross on 15th March 2016 which was promulgated on 22nd March 2016, the Appellant's representative, Mr Francis Junior of Lawland Solicitors, "also agreed that there was no evidence to show that Mr Da Silva was exercising treaty rights at the date of the divorce" (paragraph 12). Ms Ahmed relied upon two important decisions.
11. These were the cases of Amos [2011] EWCA Civ 552 and of Ahmed [2013] UKUT 00089, and both of those affirmed the argument made by Ms Ahmed on the present occasion. The plain fact was that the Appellant could not satisfy the requirements of Article 13(2), because although that Article was to do with "retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership," the fact was that Article 13(2) made it clear that,
"Before acquiring the right of permanent residence the right of residence of the person concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social system of the host member state during their period of residence and have comprehensive sickness insurance cover in the host member state ..."
Ms Ahmed submitted that this requirement could not be satisfied by the Appellant.
12. In reply, the Appellant explained that she was a family member of Mr Irineu Da Silva, whom she had married, and in consequence of which she had acquired a retained right of residence.
No Error of Law
13. I am satisfied that the making of the decision by Judge Anstis at Hatton Cross in a determination promulgated on 22nd March 2016, did not amount to an error of law under Section 12(1) of TCEA [2007] for the following reasons. First, paragraph 5 of the Grounds of Appeal raised the question as to whether,
"By virtue of her marriage to an EEA national with the right to reside in the UK permanently and by virtue of their residence to live in the UK for a continuous period of five years, the applicant would not have herself acquired the right to reside permanently, irrespective of whether or not she exercised treaty rights throughout that period."
14. This ground, however, overlooks the fact that the Appellant had made an application for a retained right of residence, and not a retained right of "permanent" residence. The fact was (see paragraph 6) that the only evidence before the judge was that the Appellant's ex-husband had worked in the taxis from 2005 to 2009. Quite simply the suggestion that the Appellant had a permanent right of residence was not an issue before Judge Anstis. It matters not whether the Appellant lived with the Sponsor for five years in accordance with the Regulations.
15. Second, and no less importantly, the judge dismissed the appeal (at paragraph 23) on the basis that the Appellant could not show that her ex-spouse was exercising treaty rights at the date of the divorce, and this was consistent with the Appellant's own representative arguing (at paragraph 12) that he had no evidence to show that Mr Da Silva was exercising treaty rights as at the date of the divorce. If it was conceded that the Sponsor was not a qualified person within the meaning of Regulation 6 at the date of the divorce then the Appellant could have no parasitic rights to retain contingent on the EEA nationals at the date of the divorce.
16. Third, as was set out above, the Appellant cannot satisfy the requirements of Article 13(2) which makes it clear that, "before acquiring the right of permanent residence, the right of residence of the person concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons ...." In Amos [2011] EWCA Civ 552 the Court of Appeal confirmed the position (at paragraphs 26 to 27) when it went on to conclude that, "at all times while residing in this country until their divorce, the spouse must have been a worker or self-employed (or otherwise satisfied the requirements of Article 7.1)" (see paragraph 29 of the judgment). The Appellant has not been able to demonstrate her Sponsor's compliance with Article 7 so as to show that he was exercising treaty rights. She therefore cannot bring herself within the meaning of Article 13(2).

Notice of Decision
There is no material error of law in the determination of Judge Anstis, which is clear and comprehensive and to the point. The determination shall stand.
No anonymity order is made.

Signed Date

Deputy Upper Tribunal Judge Juss 5th November 2016