Boodhoo and Another (EEA Regs: Relevant Evidence) [Asylum and Immigration Tribunal]
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Blake,Blake J |
| Judgment Date | 27 June 2013 |
| Neutral Citation | [2013] UKUT 346 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 27 June 2013 |
[2013] UKUT 346 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE PRESIDENT, THE HONOURABLE Mr Justice Blake
For the Appellant: Mr. Stephenson of McGill & Co Solicitors
For the Respondent: Mr A Mullen, Home Office Presenting Officer
Boodhoo and another (EEA Regs: relevant evidence)
(1) Neither section 85A of the Nationality, Immigration and Asylum Act 2002 nor the guidance in DR (Morocco)* [2005] UKAIT 38 regarding a previous version of section 85(5) of that Act has any bearing on an appeal under the Immigration (European Economic Area) Regulations 2006. In such an appeal, a tribunal has power to consider any evidence which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.
(2) Accordingly, evidence of comprehensive sickness cover, which began after the date of the decision appealed, fell to be considered by the First-tier Tribunal judge, as it was plainly relevant to the substance of the decision, albeit that it arose after the date of that decision.
(3) It is particularly important that the Home Office should engage properly with observations of the Upper Tribunal made on or following the grant of permission to appeal.
Maria Gonzales Serano is a Spanish national. Sanjay Boodhoo is a national of Mauritius who is her husband. In April 2011 the couple came to the United Kingdom where they were employed as English teachers. It appears that Ms Serano was engaged under a contract for services and would thus be considered self-employed.
On 22 August 2011 she ceased her self-employed activity as a teacher because she was pregnant and was about to give birth. She states that she intended to resume self-employment in January 2012. In the meantime in October 2011 the couple applied for proof of their entitlement to reside as an EEA national and the third country spouse of such a national. They were entitled to such documentation under the EEA Regulations 2006 if Miss Serano was a qualified person within the meaning of those Regulations.
In November 2011 their applications were refused because the Secretary of State was not satisfied that Miss Serano was a qualified person. The decision letter explained first, that she was not retained under a contract of employment during the time she was taking maternity leave. It was therefore considered she was not a worker within the meaning of Article 7 (3) of Directive 2004/38/EC and the provisions of Article 11 (2) that would extend the validity of a residence card for a maximum period of twelve months as a result of childbirth.
Although this would appear to be a surprising interpretation of the Directive, that discriminates against self-employed people, there is authority supporting that approach in the decision of the Court of Appeal in Jessy Saint Prix v Secretary of State for Work and Pensions [2011] EWCA Civ 806, which is on appeal to the Supreme Court [2012] UKSC 49. The Supreme Court has made a reference to the Court of Justice where a decision is awaited.
A second basis for the refusal of the documentation was in response to representations made that the couple were self-sufficient due to a combination of their savings and Mr Boodoo's continued ability to support the family through his employment. The problem with that contention was that the couple had not presented evidence of a comprehensive sickness insurance cover as required by regulation 4 (1) (d) (ii) of the Immigration (European Economic Area) Regulations, 2006. Accordingly on 15 February 2012 this application was refused.
The couple appealed and the appeal came before Judge Smith of the First-tier Tribunal on 17 May 2012. At that appeal the couple were able to produce a comprehensive insurance certificate dated 11 May 2012 effective from that date. It was accepted that having regard to their resources, if the certificate could be taken into account on the appeal, the couple were entitled to succeed.
The presenting officer at that appeal contended that the certificate could not be taken into account, relying on section 85A of the Immigration Nationality and Asylum Act 2002. The judge was not persuaded by that submission but concluded applying section 85(4) of the 2002 Act in combination with the guidance given by the AIT in DR (Morocco) [2005] UKAIT 38 that the certificate could not be taken into account because it related to a post decision issue. The appeal was accordingly dismissed.
The couple then appealed to the Upper Tribunal, permission to appeal was first refused by the First-tier Tribunal on the 15 June, 2012 but fortunately it was granted on 7 August 2012 where Upper Tribunal Judge Peter Lane strongly expressed the view that the certificate was admissible. He invited the Home Office to make written representations as to why the contrary was the case. Such representations were made on 31 August 2012. The papers then came before Mr Ockelton, Vice- President, on 10 January 2013 who again strongly expressed the view that section 85A did not apply to curtail the admissibility of evidence in an EEA appeal and indicated he was minded to allow the appeal subject to any further representation that the Home Office seek to make.
Those representations were made on 21 January 2013 and make two points. First, it is stated that Schedule 1 to the EEA Regulations provides that sections 85 to 87 of the 2002 Act have effect in relation to an appeal under the...
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