Upper Tribunal (Immigration and asylum chamber), 2015-03-26, IA/09877/2014
| Jurisdiction | UK Non-devolved |
| Date | 26 March 2015 |
| Published date | 05 June 2015 |
| Hearing Date | 03 March 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/09877/2014 |
Appeal Number: IA/09877/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09877/2014
THE IMMIGRATION ACTS
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Heard at Birmingham Employment Centre |
Decision Promulgated |
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On 3 March 2015 |
On 26 March 2015 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE McCARTHY
Between
SECRETARY OF STATE FOR the HOME DEPARTMENT
Appellant
and
EVAN JAMES SZYMANSKI
Respondent
Representation:
For the Appellant: Mr D Mills, Senior Home Office Presenting Officer
For the Respondent: Appellant in person
DECISION AND REASONS
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The background to this appeal is set out in my decision of 12 January 2015. I found that the determination of First-tier Tribunal Judge Thorne contained an error on a point of law and had to be set aside. A copy of my decision is annexed hereto for convenience.
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Because I was unable to remake the decision on 6 January 2014, a resumed hearing was arranged. At the end of the resumed hearing I announced that I would remake the decision of the First-tier Tribunal to allow the original appeal against the EEA decision of 11 February 2014 refusing to issue a residence card. I reserved my reasons, which I now give.
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As indicated in my earlier decision, the appellant could succeed only by showing that his wife was a qualified person at some point since she arrived in the UK. This was necessary because, without proving she was, the appellant was not able to show that he derived a right of residence as a family member.
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At the resumed hearing the appellant produced cogent evidence that his wife had established in business and that she was therefore a qualified person. The evidence showed that the appellant's wife had established an online business providing images and associated graphic design work. She had received income from her business. She had registered as self employed with HMRC.
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Mr Mills accepted that the evidence was clear and cogent. Although it had not been submitted in accordance with directions he informed me he had no basis on which he could ask for it to be excluded since its content and relevance was obvious. Mr Mills accepted that the appellant's wife was self employed and therefore was a qualified person from whom the appellant derived a right of residence. Although the basis for this was wholly different to the original application, Mr Mills conceded that the appellant was entitled to a residence card confirming his right of residence.
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I am satisfied that this is correct in law. Irrespective of the appellant's immigration history, when remaking the decision I have to consider the facts as at the date of hearing. Being self employed, the appellant's wife satisfies regulation 4(1)(b) of the 2006 EEA Regulations. As such she is a qualified person for the purposes of regulation 6. It follows from regulation 7 that the appellant has a right of residence and is entitled to have that confirmed by the issuance of residence documentation as per regulation 14.
Decision
The Secretary of State’s appeal to the Upper Tribunal is allowed to the extent that there was an error on a point of law that required the decision of the First-tier Tribunal to be set aside and remade.
When remaking the decision, the appeal against the EEA decision refusing to issue a residence card is allowed.
Signed Date
Deputy Judge of the Upper Tribunal
ANNEX:
Decision of 12 January 2015 on there being an error on a point of law and to set aside the First-Tier Tribunal’s determination
Date of hearing 6 January 2015
Representation:
For the Appellant: Mr D Mills, Senior Home Office Presenting Officer
For the Respondent: Ms R Manning , instructed by Sabz Solicitors, Birmingham
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The Secretary of State appeals to the Upper Tribunal against the determination of First-tier Tribunal Judge Thorne that was promulgated on 23 September 2014. Judge Thorne allowed Mr Szymanski’s appeal against the EEA decision of 11 February 2014 refusing to issue a residence card.
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Mr Szymanski was born on 14 November 1980 and is a citizen of the USA. He arrived in the UK on 29 December 2012 with his wife and then two children. At that time Mr Szymanski held an EEA family permit that had been issued to him on 9 November 2012 and which was valid until 9 May 2013. Since arriving in the UK, the couple have had a third child.
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Mr Szymanski applied for a residence card on 6 December 2013 on the basis that his wife, a French national, was a qualified person for the purposes of the Immigration (European Economic Area) Regulations 2006 as a self-sufficient person. On 11 February 2014, the Secretary of State refused to issue the requested document because insufficient evidence had been provided to show that Mrs Szymanski was a self-sufficient person.
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On appeal, Judge Thorne came to the following conclusions (see paragraphs 22 to 25 of his determination).
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Mr Szymanski, his wife and their three children were covered by comprehensive sickness insurance.
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Mr Szymanski earnings of over £31,000 per year was more than sufficient to support the family group and were sufficient to ensure that family would not become a burden on the UK’s social assistance system.
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Mr Szymanski derived a right of residence from his wife who as a self sufficient person was a qualified person in the UK.
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The Secretary of State’s appeal against this decision is on the grounds that it was not open to Judge Thorne to find that an EEA national is a self-sufficient person on the basis of earnings from a third country national. The Secretary of State relied on the reported decision, MA and others (EU national; self-sufficiency; lawful employment) Bangladesh [2006] UKAIT 00090.
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The Secretary of State commented, “It is submitted that the EEA national sponsor must first exercise her treaty rights to enable the appellant to derive his rights.” It is argued that such an approach is necessary to prevent a circular argument where Mr Szymanski relies on his wife being a qualified person in order to derive a right of residence and thereby his right to work in the UK, the earnings from such employment being the basis on which his wife is able to establish her right of residence.
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Mr Mills relied on these grounds. He supplemented them by saying that Mr Szymanski had not established that his wife had ever established a right of residence prior to him taking employment. Although there was some evidence that she had funds of her own, they were insufficient to show she had a right of residence because they were not substantial savings.
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Ms Manning relied on her rule 24 response in which she asserted simply that Judge Thorne had correctly determined that Mrs Szymanski was a self sufficient person under the Regulations. She reminded me that the evidence before the First-tier Tribunal had been that Mrs Szymanski had intended to work in the UK but had been prevented from so doing because she was pregnant, the couple’s third child being born in the UK on 21 September 2013. In paragraph 4 of her skeleton argument, Ms Manning comments that Mrs Szymanski is working although no evidence of that has been provided.
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Ms Manning also relied on Ahmed (Amos; Zambrano; reg 15A(3)(c) 2006 EEA Regs) [2013] UKUT 89 (IAC) on the grounds that if Mr Szymanski was not allowed to remain in the UK, then the whole family would be forced to return to the USA.
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Both representatives referred to article 8 of the human rights convention and mounted opposing views as to how the EEA decision would or would not interfere with the family’s private and family life rights.
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At the end of the hearing I indicated that I would have to review the case law and consider whether the determination contained an error on a point of law. I not consider that issue.
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I begin by rejecting the arguments presented by Ms Manning in relation to article 8 and the points raised in Ahmed. As confirmed by Mr Mills, it has never been the Secretary of State’s case that Judge Thorne’s determination was defective because he failed to deal with these issues. It is evident that there has been no cross appeal and therefore Ms Manning cannot introduce these issues at this stage although I acknowledge they may be relevant to remaking the decision if I were to find there had been an error on a point of law.
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I move on to consider the substance of the Secretary of State’s grounds. Although I was not referred to either of the following reported decisions, I have had regard to both: Seye (Chen children; employment) [2013] UKUT 178 (IAC) and Boodoo and another (EEA Regs; relevant evidence) [2013] UKUT 346 (IAC). The first reviews the Tribunal’s view of whether the income of a third country national can establish that an EEA national is a self-sufficient person, and after...
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