Upper Tribunal (Immigration and asylum chamber), 2019-07-01, EA/07460/2018
| Jurisdiction | UK Non-devolved |
| Date | 01 July 2019 |
| Published date | 29 August 2019 |
| Hearing Date | 07 June 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | EA/07460/2018 |
Appeal Number: EA/07460/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/07460/2018
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 7 June 2019 |
On 1st July 2019 |
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Before
UPPER TRIBUNAL JUDGE FRANCES
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
Ms Diana Bawiah Jalloh
(ANONYMITY DIRECTION not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr A. Malik, instructed by BWF Solicitors
For the Respondent: Mr L. Tarlow, Home Office Presenting Officer
DECISION AND REASONS
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The appellant is a citizen of Ghana born 12 September 1981. She appeals against the decision of First-tier Tribunal Judge Harvard, promulgated on 29 January 2019, dismissing her appeal against the respondent’s decision to refuse to issue her with a residence card under the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”). The respondent’s decision was dated 16 May 2018.
Factual background
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On 14 February 2018, the appellant applied for a residence card under the 2016 Regulations in respect of her marriage to Anafieu Jalloh, a citizen of the Netherlands born 16 December 1986 (“the sponsor”). Her application was refused on the basis that she had not provided sufficient evidence that the sponsor was a “qualified person” for the purposes of the 2016 Regulations. For the months July, August and September 2017, the appellant had provided two payslips for each month, in respect of her sponsor’s claimed employment. Each payslip showed different amounts of pay. The sponsor’s bank statements purporting to demonstrate his salary payments being made into his account featured still further figures. The most recent evidence she had provided to accompany her application was from 30 November 2017, predating her application by over six weeks. These inconsistencies lead the respondent to question the weight the documents attracted. He did not accept the sponsor to have been economically active.
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The hearing before Judge Harvard took place on 4 January 2019. The appellant provided additional bank statements, payslips and supporting documentation demonstrating that he had been consistently employed, with the most recent documents being up to the end of December 2018. These documents suggested that his annual income for April 2018 was £25,000. At [47], Judge Harvard rejected the submission advanced by the appellant that he was able to take into account material which post-dated the respondent’s decision. The judge said,
“I am only able to consider the evidence which existed at the date of the Respondent’s decision, together with the evidence which has been served subsequently but which relates to the period prior to the date of the Respondent’s decision.”
The judge outlined why the materials provided in support of the initial application were inadequate and dismissed the appeal. He did, however, accept an explanation provided for the discrepancies between the payslips provided in the summer of 2017, and the presenting officer on that occasion is recorded as having placed no reliance on those perceived inconsistencies.
Permission to appeal
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Permission to appeal was granted by the Upper Tribunal on the basis that the judge arguably erred in law when refusing to take into evidence which post-dated the decision. The grant of permission noted that, pursuant to Boodhoo and another (EEA Regs: relevant evidence) [2013] UKUT 00346 (IAC), the judge arguably had the power to consider evidence relevant to the substance of the decision under challenge, including evidence which concerns a matter arising after the date of the decision.
Submissions
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Before us, it was common ground that the judge below had erred in law by virtue of his failure to consider the post decision evidence. Mr Tarlow conceded that the sponsor was economically active at the time of the application and invited us to find that there was an error of law, and to remake the decision.
Legal framework
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Regulation 18(1) of the 2016 Regulations governs the issue of a residence card. It provides, where relevant:
“(1) The Secretary of State must issue a residence card to a person who is not an EEA national and is the family member of a qualified person or of an EEA national with a right of permanent residence under regulation 15 on application and production of—
(a) a valid passport; and
(b) proof that the applicant is such a family member.”
The essential issue in this matter is whether the sponsor, an EEA national, is a “qualified person”. A “qualified person” is defined in regulation 6 to include a “self-employed person” and a “worker”. Meeting the criteria to be classified as a “qualified person” is sometimes called “exercising Treaty rights”, referring to the entitlement enjoyed by all EU citizens to the right of free movement, conferred by the EU Treaties.
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Schedule 2 to the 2016 Regulations applies, with some modifications, certain provisions of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) concerning statutory appeals. It provides, where relevant:
“1. The following provisions of, or made under, the 2002 Act have effect in relation to an appeal under these Regulations to the First-tier Tribunal as if it were an appeal against a decision of the Secretary of State under section 82(1) of the 2002 Act (right of appeal to the Tribunal)—
[…]
section 85 (matters to be considered), as though—
(a) the references to a statement under section 120 of the 2002 Act include, but are not limited to, a statement under that section as applied by paragraph 2; and
(b) a “matter” in subsection (2) and a “new matter” in subsection (6) include a ground of appeal of a kind listed in section 84 of the 2002 Act and an EU ground of appeal…”
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Section 85(4) of the 2002 Act is one of the provisions applied by the deeming provisions contained in Schedule 2. It provides:
“On an appeal under section 82(1) against a decision the Tribunal may consider [...] any matter which [it] thinks relevant to the substance of the decision, including [...] a matter arising after the date of the decision.”
The effect of section 85(4), as applied by the 2016 Regulations, is that the tribunal does have the jurisdiction to consider matters arising after the date of the decision in an EEA case. This is subject to the important exception that the tribunal may not consider a “new matter” without the consent of the Secretary of State. The evidence under consideration in the present case was not a “new matter”, rather it was further or better evidence of an existing matter, namely whether the sponsor was exercising Treaty rights.
Discussion
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We indicated at the hearing that we agreed that Judge Harvard had erred and that we would consider the up-to-date evidence submitted by the appellant. The Judge had the power to consider post-decision evidence pursuant to section 85(4) of the 2002 Act, as applied by Schedule 2 to the 2016 Regulations. This tribunal considered this issue in relation to the predecessor regime to the 2016 Regulations, the Immigration (European Economic Area) Regulations 2006 in Boodhoo. There, the then President held, in the Headnote at [2], that
“... 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.”
Although Boodhoo concerned the 2006 Regulations, for present purposes there is no material difference between the appeal provisions contained in the 2016 Regulations. The underlying statutory provision considered in Boodhoo, namely section 85(4) of the 2002 Act, as applied by Schedule 1 to the 2006 Regulations to EEA cases, remains in materially the same form.
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As such, the judge was incorrect to state that he did not have the ability to consider post-decision evidence. The sole issue in the case was whether the sponsor exercised Treaty rights; the evidence proffered to the judge clearly went precisely to that matter, and it was accordingly “relevant to the substance of the decision” for the purposes of section 85(4). The judge erred in law by refusing to take into account relevant post-decision evidence.
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We consider that the judge’s failure to take into account the post-decision evidence amounted to a failure to have regard to material evidence. The post-decision evidence appeared to demonstrate that the sponsor was a qualified person at the date of the hearing, and as such the judge’s error was material.
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There is no need for this matter to be remitted; we are able to remake the decision ourselves. It is necessary for us to analyse the evidence submitted by the appellant in support of the contention that the sponsor is economically active.
Remaking the decision
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We recall that the sole basis upon which the appellant’s application was rejected was on the basis that he was not a “qualified person” for the purposes of the regulations. There has been no challenge by the respondent to the assertion that the sponsor is a citizen of the Netherlands, nor in relation to any of the other criteria which must be...
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