Upper Tribunal (Immigration and asylum chamber), 2019-09-19, EA/03184/2018
| Jurisdiction | UK Non-devolved |
| Date | 19 September 2019 |
| Published date | 20 November 2019 |
| Hearing Date | 17 September 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | EA/03184/2018 |
Appeal Number: EA/03184/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/03184/2018
THE IMMIGRATION ACTS
|
Heard at Bradford |
Decision & Reasons Promulgated |
|
On 17 September 2019 |
On 19 September 2019 |
Before
UPPER TRIBUNAL JUDGE HANSON
UPPER TRIBUNAL JUDGE BRUCE
Between
JORGE PABLO FERREYRA OLIVERA
(anonymity direction not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr J Dingley of Ison Harrison Solicitors.
For the Respondent: Mrs Pettersen – Senior Home Office Presenting Officer.
ERROR OF LAW FINDING AND REASONS
-
The appellant appeals a decision of First-Tier Tribunal Judge Roblin promulgated on 4 April 2019, following consideration of the merits of the appeal on the papers, who dismissed the appeal pursuant to the Immigration (EEA) Regulations 2016 against the respondent’s refusal to issue the appellant a residence card in recognition of a right to permanently reside in the United Kingdom.
Background
-
The appellant is a citizen of Uruguay born on 23 August 1982. The appellant’s sponsor is a [NP], a British citizen, who the appellant stated commenced her employment in Tenerife in Spain in March 2004. The appellant claims they met in May 2004 and married on 30 January 2006. The sponsor remained employed in Spain until December 2011.
-
The Judge sets out a chronology of the sponsors employment in Spain at [5] as follows:
5. It is suggested the appellant’s sponsor obtained employment in Spain as follows:
-
On 28 March 2004 until November 2004 with Thomas Cooke as a holiday representation
-
From 19 January 2005 to July 2011 as a waitress with Snappys Bistro.
-
From July 2007 to January 2010 as a receptionist and telemarketer at Palm Beach Club.
-
From March 2010 until June 2011 on maternity leave.
-
From July 2011 to December 2011 as an administrator for the Eze Group.
-
The appellant states the sponsor was employed following her return to the United Kingdom and commenced maternity leave in August 2017 after the birth of their second child
-
The Judge sets out findings of fact from [23].
-
The Judge notes it is not disputed the appellant is a family member of his sponsor or that he was issued with a residence card on 23 May 2013 valid to 14 May 2018.
-
The Judge accepts the sponsor worked for Eze Group from January 2011 to December 2011 [27] but finds he had not been provided with documentary evidence of the sponsors employment in Spain although does refer to a number of documents in the appellant’s bundle including evidence the appellant and his sponsor purchased a property in Spain in 2006 – 2007.
-
At [29 – 33] the Judge finds:
29. I accept that I do have within the appellant’s bundle details of his sponsor’s bank accounts and information from the sponsor’s employer which supports the appellant’s position that the sponsor was working in the United Kingdom since 27 February 2012. I have no evidence to confirm that the appellant and his sponsor were residing in Spain, Tenerife prior to January 2011 the date confirmed in the letter from Eze group dated 29 August 2012 that the Appellant’s sponsor commenced employment in Tenerife with them. However the Appellant claims his sponsor was employed by various companies in Tenerife before 2011 namely by Thomas Cooke in 2004, Snappy Bistro 2005 – 2011 and the Palm Beach Club 2007 – 2010. No evidence in support of these periods employment has been provided.
30. I accept that the appellant has been issued with a residence card under Regulation 18(1) such card. Paragraph 18(6) specifies that a residence card is issued for a period of 5 years.
31. Thus I have found that the appellant’s sponsor was working in Tenerife from January 2011 to December 2011. However by reference to Regulation 9 while I accept that the appellant and his sponsor purchased the property in Tenerife in 2006 which was registered in 2007 I have no evidence other than proof of purchase of the property that this was the location of the appellant’s principal residence nor that of his sponsor. Although it is suggested that the sponsor worked in Spain for various organisations from 2004 until January 2011 I have no documentary evidence of that employment. The only information is that set out in the appellant solicitors letter. Furthermore I have no utility bills, wage slips or bank statements for that period other than those few documents which are provided in Spanish.
32. Having regard to the factors I have outlined I am not satisfied on the balance of probabilities that the sponsor moved the centre of life to Tenerife and that the appellant and his sponsor integrated significantly in Tenerife.
33. I find the appellant was in a position to obtain the evidence and due to the fact he did not do so I find the appellant does not meet the Regulations and the appeal is dismissed.
-
The appellant sought permission to appeal which was granted by another judge of the First-tier Tribunal, the operative part of the grant being in the following terms:
3. On 16 November 2011 the Appellant was granted admission to the UK on the basis he was a spouse of a British citizen who had been exercising treaty rights by working in Spain. Thus the Surinder Singh route was accepted as applying to him.
4. When the Appellant’s 2017 application for a permanent residence card was refused, no objection was taken by the Respondent to whether the sponsor had genuinely moved the centre of her life to Spain. Since she had provided evidence that she had worked there for many years, had purchased property in Spain, had married the Appellant there, had conceived and borne the Appellant’s child there, and had been granted Spanish residency that stance was unsurprising. Arguably, it was not open to the Judge to take the point for himself, and to resolve it against the Appellant, in the course of considering an appeal on the papers that concern the single issue of whether documents submitted in support of the application contained a mere typographical error. Having resolved that single issue in the Appellant’s favour [27] the Appellant was arguably entitled either to have his appeal allowed, or if the Judge had real concerns that the Appellant had deceived the Respondent in 2011, to have the appeal listed for an oral hearing at which he might be given the opportunity to address those concerns.
Error of law
-
The Judge specifically finds the sponsor had not moved the centre of her life to Tenerife and that the appellant and sponsor had not significantly integrated into Tenerife.
-
A key concept within regulation 9 is the “centre of life” test. There does not appear, however, to be any reference to Case Law where such a phrase arises; although its origin appears to be in domestic jurisprudence of Rosa v Secretary of State the Home Department [2016] EWCA Civ 14 which refers to non-binding guidance issued by the European Commission on the Directive which at [4] provides:
There is no abuse where EU citizens and their family members obtain a right of residence under Community law in a Member State other than that of the EU citizens nationality as they are benefiting from an advantage inherent in the exercise of the right of free movement protected by the Treaty, regardless of the purpose of their move to that State. By the same token, Community law protects EU citizens who return home after having exercised their free movement rights.
….
When necessary, Member States may define a set of indicative criteria to assess whether residence in the host Member State was genuine and effective. National authorities may in particular take into account the following factors….
-
The facts before the Judge showed the EEA national, the sponsor, travelled to Spain and took employment. The right of residence necessary to enable the sponsor to undertake such employment is that she exercised. The intention of the sponsor is not relevant, and in any event there is no indication in this appeal of evidence before the Judge to support an argument that the sponsor’s actions amounted to an abuse of rights. The doctrine of abuse of rights can apply only where it is shown by the respondent that there was no genuine exercise of treaty rights to free movement and where there was an intention to use...
To continue reading
Request your trial