Upper Tribunal (Immigration and asylum chamber), 2014-09-05, IA/29658/2013
| Jurisdiction | UK Non-devolved |
| Date | 05 September 2014 |
| Published date | 31 December 2014 |
| Hearing Date | 31 July 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/29658/2013 |
Appeal Number: IA/29658/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29658/2013
THE IMMIGRATION ACTS
|
Heard at Stoke |
Determination Promulgated |
|
on 31st July 2014 |
On 5th September 2014 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
TARKEEL AKHTAR
(Anonymity direction not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Miss Dhaliwal instructed by Cartwright King Solicitors
For the Respondent: Mr Harrison – Senior Home Office Presenting Officer.
DETERMINATION AND REASONS
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This is an appeal against a determination of First-tier Tribunal Judge Thorne promulgated on 10 January 2014, following a hearing at Nottingham on 21 December 2013, in which the Judge dismissed the Appellant's appeal under the Immigration (European Economic Area) Regulations 2006 (as amended), hereinafter referred to as the EEA Regulations, and on human rights grounds.
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The Appellant is a citizen of Pakistan born on 10 September 1976. On 27 January 2012 he applied for a Residence Card as confirmation of a right to reside in the United Kingdom as the family member of an EEA national, Ms Begum, a Spanish national who it is claimed had exercised treaty rights in the UK for a continuous period of five years in accordance with the 2006 Regulations.
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The Appellant advised the First-tier Tribunal that Ms Begum left the United Kingdom in April 2011 and returned to Spain. Such rights as she may have acquired can be lost as a result of two years absence from the UK. It was said she had been employed from 2006 to 2007 although no documentary evidence was provided to support such a claim and that she had been self-employed from 2010 to 2011 which was supported by a letter from AH Accountants stating Ms Begum was working self-employed as a lady's dress designer and that her income in the year April 2010 to 2011 was £6,860. She was also said to be economically self-sufficient from 2007 although no evidence had been provided that she had comprehensive medical insurance cover or that she had adequate funds to support herself for this period.
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The application was refused on 27 June 2013 on the basis the Appellant had failed to provide adequate proof that Ms Begum had been exercising Treaty rights in the United Kingdom for a period of five years.
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Having considered the evidence the Judge set out relevant findings from paragraph 27 of the determination. It is not disputed that the Appellant entered the United Kingdom on 8 April 2004 and that he was issued with a Residence Card on 30th January 2007. In paragraph 31 of the determination the Judge states:
31. In order for the appellant to succeed under Regulation 15 (1) (b) of the Regulations he must prove on the balance of probabilities that he resides in the United Kingdom with his wife in accordance with the Regulations for a continuous period of five years i.e. since 2006 (his wife having left the UK in 2011).
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The Judge found that as the Appellant was only issued with a Residence Card in 2007 he cannot have resided in the United Kingdom in accordance with the Regulations for a continuous five year period since 2006.
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At paragraph 33 the Judge provides an analysis in the alternative in which he concludes that the Appellant has failed to prove on the balance of probabilities that his wife was exercising Treaty rights in the UK for a continuous five-year period since 2006 [33]. The Judge found there was insufficient evidence to prove that treaty rights had been exercised for a continuous period of five years during this period.
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In paragraph 35 the Judge notes an argument advanced that the Respondent had been unfair in not providing Ms Begum’s HMRC records but concluded that the argument has no merit on the basis there was no reason to conclude that the Secretary of State had not acted fairly and because the HMRC documents would not be likely to show that Ms Begum had comprehensive medical insurance.
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In paragraph 37 the Judge states "in addition (and most tellingly) the appellant gave evidence that he has never in fact asked his wife to provide any documentary evidence about these matters”.
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Having dismissed the appeal under the EEA Regulations the Judge considered the Article 8 claim and found the Appellant did not qualify under Appendix FM or paragraph 276ADE and therefore could not succeed under the Rules. The Judge then went on to undertake a free standing Article 8 assessment at the end of which he concluded that any breach was not so serious so as to amount to a breach of a fundamental right under Article 8; leading to the dismissal of the appeal on this ground too.
Grounds and submissions
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The written grounds upon which permission to appeal is sought refer to section 40 UK Borders Act 2007 and the fact the Judge was invited to make a direction under section 40 at the appeal hearing on 24th December 2013 both as a preliminary issue and during submissions. It is asserted the Judge made an error in finding that such a direction to disclose material had to be made in writing prior to the hearing and the determination is said to be silent on whether the Judge exercised his mind to the merits of ordering HMRC to disclose material relating to the Appellant's wife.
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It is also asserted the Judge has erred in his claim that the five years continuous residence period started in 2006/7 when the Appellant was issued with a residence card, such being wrong in law. It is submitted the relevant period during which the Judge should have made this assessment was from April 2004 when the Appellant entered the United Kingdom and April 2011 when she left to return to Spain, a period of 7 years. The Appellant's assertion that he had therefore lived in the United Kingdom for more than five years, during which time he has been a family member of an EEA national, meant it was necessary to consider whether the Appellant had retained rights residence which had been overlooked completely in the determination pursuant to Regulation 10 of the 2006 Regulations.
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The final allegation is that the Judge failed to apply the required degree of anxious scrutiny.
Error of law
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The Upper Tribunal was advised by Miss Dhaliwal that the Judge was asked to hear as a preliminary issue an application that a direction is made pursuant to section 40 for the Secretary of State to disclose the HMRC records of the Appellant's wife. There is evidence of correspondence between the Appellant's representatives and the Secretary of State seeking information and the eventual response, dated prior to the date of the First-tier hearing, from the Respondent making it clear that the requested information would not be made available on a voluntary basis. Notwithstanding this, it appears no formal application was made for the relevant direction until the hearing.
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Miss Dhaliwal confirmed the Judge decided to hear the evidence before making a decision. The issue was also referred to in submissions and it appears no indication was given by the Judge at the hearing of his decision in relation to the same. Although it is not necessarily a legal error for a Judge not to deal with such an application immediately the party making the application is entitled to know what the eventual decision is. In this case there is no indication that the application was rejected at the hearing but there is reference to the issue in paragraph 35 of the determination to which I have referred above. The Judge’s conclusion that the HMRC records are unlikely to show that Ms Begum had comprehensive medical insurance is a clear finding that such an application was not warranted on the facts as it would serve no real purpose.
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The importance of this issue is illustrated by the decision of the Court of Appeal in Ahmad v Secretary of State for the Home Department [2014] EWCA Civ 988, in which it was held that where an EEA citizen resided in the UK but was not economically active, the right of the EEA citizen's spouse to permanent residence was conditional, under Article 7(1) of Directive 2004/38/EC, upon the EEA citizen holding comprehensive sickness insurance cover. That condition had to be strictly complied with, and could not be satisfied by the EEA citizen's entitlement to free healthcare under the NHS.
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