Upper Tribunal (Immigration and asylum chamber), 2019-03-15, EA/00590/2018

JurisdictionUK Non-devolved
Date15 March 2019
Published date26 April 2019
Hearing Date12 March 2019
CourtUpper Tribunal (Immigration and Asylum Chamber)
StatusUnreported
Appeal NumberEA/00590/2018

Appeal Number: EA/00590/2018


Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: EA/00590/2018



THE IMMIGRATION ACTS



Heard at Field House

Determination Promulgated

On Tuesday 12 March 2019

On Friday 15 March 2019




Before


UPPER TRIBUNAL JUDGE SMITH



Between


FAISAL ABBAS

Appellant

And


SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent



Representation:

For the Appellant: Mr S Kandola, Senior Home Office Presenting Officer

For the Respondent: Mr P Nath, Counsel instructed by Z Ranjha, Addison & Khan solicitors



DECISION AND REASONS

Background

  1. By a decision promulgated on 10 December 2018, on the appeal of the Secretary of State, I found an error of law in the decision of First-tier Tribunal Judge M R Oliver promulgated on 11 October 2018 allowing the Appellant’s appeal against the Respondent’s decision dated 21 December 2017. The Respondent refused the Appellant’s application for a residence card confirming his retained right of residence as the former spouse of a Lithuanian national, Ms [RP], mainly on the basis that the marriage was one of convenience. In light of the error of law found in Judge Oliver’s decision, I set aside the First-tier Tribunal decision and gave directions for a resumed hearing to re-make the decision. My error of law decision is annexed hereto for ease of reference.

  2. The factual background to this appeal is set out at [2] of my error of law decision and I do not repeat it. Judge Oliver found, contrary to the conclusion of the Respondent, that the Appellant’s marriage to Ms [P] was not a marriage of convenience. I preserved that finding ([20] of my error of law decision).


The Issues and the Legal Background

  1. As I observed at [17] and [18] of my error of law decision, the issues which remain between the parties are quite narrow. They are, first, whether the Appellant satisfies the remaining provisions of regulation 10 of the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”). Regulation 10 is set out at [16] of my error of law decision and I do not repeat what I say at [17] and [18] concerning the further narrowing of that issue.

  2. Mr Nath confirmed that it is the Appellant’s case that he is now entitled to a permanent right of residence having spent five years as the spouse or former spouse of an EEA national exercising Treaty rights or with a retained right of residence under regulation 10. The relevant provision in that regard is regulation 15 of the EEA Regulations which reads as follows so far as relevant:

Right of permanent residence

15. - (1) The following persons 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 the period, a family member who has retained the right of residence.”

  1. Mr Kandola accepted that, the Appellant having been issued a residence card as Ms [P]’s family member on 13 June 2012 to 13 June 2017 and the divorce having commenced on 28 February 2017, the Appellant has to show that Ms [P] was exercising Treaty rights as at 28 February 2017, that he was residing before that time as her family member whilst she was exercising Treaty rights and that he was himself economically active as if he were an EEA national exercising Treaty rights in the period from 28 February 2017 to 13 June 2017.

  2. As I identified at [10] to [11] of my error of law decision, there is also a potential issue regarding the Appellant’s failure to produce Ms [P]’s original identity document. I set out the law in that regard in those paragraphs and gave a direction indicating that I would be assisted by having a copy of the application made leading to the issue of the residence card in 2012 so that it was factually clear whether the identity document was at that time produced to the Respondent. A copy of that application was not forthcoming prior to the hearing. However, at the hearing, Mr Kandola confirmed that the Respondent did have the identity document at that time and confirmed that, in light of the Tribunal’s decision in Barnett (referred to at [10] and [11] of the error of law decision), he did not pursue that point. He was right to do so. Moreover, the Appellant has, with his supplementary bundle, provided a copy of the identity document of Ms [P] which was produced with the earlier application.

  3. Accordingly, for the above reasons, the issue is whether Ms [P] and the Appellant were exercising Treaty rights (or economically active in the Appellant’s case as if he were an EEA national) in the period 13 June 2012 to 13 June 2017. I therefore turn to what the evidence shows in that regard.


Evidence: Discussion and Conclusions

  1. The Appellant complied with the direction to file further evidence in relation to the remaining issues. Unfortunately, that had not reached the Respondent. Mr Kandola was however able to peruse the relatively short bundle before and during the hearing and to make submissions on what that showed. Unfortunately, also, the short, written submissions made by the Appellant were not received by either the Tribunal or the Respondent (although I accept they were sent) but I and Mr Kandola had time to read those and Mr Nath made oral submissions based on those written submissions.

  2. It was agreed that there was no need for the Appellant to give oral evidence. The focus of the issues is the documentary evidence during the relevant period. Unfortunately, the Appellant’s evidence was organised in a way which was slightly unfocussed. For example, the written submissions focussed attention only on whether Ms [P] was exercising Treaty rights at the date of commencement of divorce and not for any earlier period. In relation to the Appellant, the submissions relied on one invoice dated 17 January 2017, one invoice dated 29 November 2018 and the evidence I had identified at [17] of my error of law decision which I declined to set out or make findings on as the Respondent had not had the opportunity to make submissions about that evidence. As a result, time was spent during the hearing establishing what the evidence showed about the outstanding issues. That included the need for the Appellant to produce further documentary evidence during the hearing. However, I have been to establish what the evidence demonstrates about the exercise of Treaty rights/ economic activity in the requisite period which I summarise as follows:

Ms [P]

  • Tax year 2012-13 (encompassing start of the period): tax return for self-employment as Prime Cleaning Services: turnover £8310, net profit £7568 (handed in at hearing);

  • Tax year 2013-14: tax return for self-employment providing cleaning services: turnover £8277, net profit £7618 (handed in at hearing);

  • Employed by B-Tech Solutions from 2 June 2014 to 26 June 2015: employer’s letters at [AB/19-20]; P60 for tax year to 5 April 2015 confirming earnings of £7371 [SAB/19]; P45 at [AB/22-24] confirming leaving date as 26 June 2015;

  • Employed by Privilege Security & Services Ltd from 1 July 2015 to 15 November 2016: P60 for tax year to 5 April 2016 confirming earnings of £7514.14 (including previous employment) ([SAB/10]); P11 deductions working sheet confirming earnings from July 2015 ([SAB/11]), payslips February 2016 to September 2016 ([SAB/12-18]); P45 at [SAB/6-9] confirming leaving date;

  • Employed by Innovative Management Solutions from November 2016 to April 2017: Payslips at [SAB/1-5] – there is no payslip for December 2016 but there are payslips either side of that month; it appears that this is simply an omission. The payslip for November 2016 suggests that Ms [P] worked for only part of that month, but she did not leave her previous employment until 15 November.

The Appellant

  • Tax return 2013-14: income from employment and self-employment £10,343 ([SAB/65 – 83]);

  • Tax return 2014-15: income from employment and self-employment £10,093([SAB/46-64]);

  • Schedule of invoices for interpreting and translation services ([AB/31-35]): the invoices are in no particular order but show income from that source for the period 19 April 2013 to 20 July 2018 as follows:

2013: £7701.06

2014: £9987.12

2015: £6659.92

2016: £4572.72

2017: £1393.09

2018: £629.18

In particular, there are records of income in the period February to June 2017 of £179.14 (27 February) £199.43 (20 March), £125.75 (19 May);

  • The additional documents for the period February to June 2017 are as follows:

Remittance advice dated 12 July 2017 for an invoice dated 17 February 2017 (£455) ([AB/41]);

Invoice dated 4 June 2017 for charges of £500.50 ([AB/42])

E-mail dated 21 March 2017 notifying payment of £38 (AB/43])

Payslips: 28 February 2017 (£34.66) ([AB/54]), 31 March 2017 (-£8.60: tax payment) ([AB/53]), 30 June 2017 (£43.26) ([AB/51])

P60: year to 5 April 2017 (£43.26: corresponds to payslip of 30 June) ([AB/52]);

Privilege Security & Services Ltd accounts for year to 31 March 2017 (Appellant is director): turnover £82,270, gross profit £6328, net loss £2386 ([AB70-85]);

HMRC receipts for VAT payments for...

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