Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/45146/2013

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 July 2016
On 23 November 2016

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

OLIVER BASTAZINI DE MORAES
(ANONYMITY DIRECTION NOT MADE)
Respondent
Representation:
For the Appellant: Mr S Whitwell, Home Office Presenting Officer
For the Respondent: Mr C Pulman, Counsel, instructed by Nabal Legal LLP
DECISION AND REASONS
1. I see no need for and do not make any order restricting the publication of any details about this case.
2. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal allowing the appeal of the respondent, a citizen of Brazil, against the decision of the Secretary of State refusing him a residence card as confirmation of his right to reside in the United Kingdom.
3. At the risk of over-simplification he exercised his right to be in the United Kingdom as the husband of an EEA national exercising treaty rights. The First-tier Tribunal was satisfied that he did meet the requirements of the rules and allowed the appeal.
4. The grounds of appeal to the Upper Tribunal (not drawn by Mr Whitwell) are misconceived and I adopt the criticism elegantly coined by Mr Whitwell. They conflate being a job seeker with one who was not seeking work but who is registered as unemployed.
5. Mr Whitwell then applied to amend the grounds particularly drawing my attention to paragraph 14 of the decision where the judge said unequivocally "I am satisfied that for the short gap between January and July 2007 that the appellant's ex-wife was seeking employment". That finding is essentially to a finding that the appellant satisfied the requirements of the Rules.
6. Mr Whitwell had not been able to find any evidence to support that contention and he invited me to accept an application to permit him to amend the grounds suggesting that that finding was irrational.
7. I declined to permit him to do that. On the face of it Mr Whitwell is right in the sense that I cannot find anything on the papers that unequivocally supports that finding. However, oral evidence was given. There are some notes in my papers which indicate that there might have been some discussion on the point (I can put it no higher than that, and I do not) but neither Mr Whitwell nor Mr Pulman for the respondent were present at the First-tier hearing and I was left in the position of having judge's notes, which might have been illuminating, but no opportunity to check them without a further adjournment. The adjournment would have involved cost and I found that the cost would have been unfair to the respondent because it would have involved costs for him that were in no way his fault.
8. I also regard the proposition that the respondent's wife was seeking work to be inherently reasonable. This is based on the fact that the respondent's wife had always shown herself willing to work and had shown herself able to get work, either in the catering industry or as a hairdresser. It is therefore by no means unlikely that she was seeking work. Indeed she had to support herself one way or another and there is nothing in the papers to suggest she was the kind of person who had accumulated vast sums in capital. She is a person who would be expected to be looking for work as she did on other occasions and I do not find the judge's finding fanciful.
9. It is unlikely that a judge would have acted irrationally and given these findings it did not seem to me fair to the respondent to permit the Secretary of State to amend the grounds in support of a contention which had some theoretical justification but was not likely to be right and which could not easily be checked. Once I refused that application Mr Whitwell had to concede that he could not challenge the decision and I therefore dismiss the Secretary of State's appeal.
10. I apologise for the late promulgation of this decision. I believe that I gave a binding extempore judgment. As far as I am aware, no-one has chased me for a decision. I finalised the draft on the same afternoon that I realised it had not already been done.

Notice of Decision

The Secretary of State's appeal is dismissed.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 22 November 2016