Upper Tribunal (Immigration and asylum chamber), 2020-01-14, EA/00032/2018
| Jurisdiction | UK Non-devolved |
| Date | 14 January 2020 |
| Published date | 05 March 2020 |
| Hearing Date | 05 December 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | EA/00032/2018 |
Appeal Number: EA/00032/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/00032/2018
THE IMMIGRATION ACTS
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Heard at Royal Courts of Justice Belfast |
Decision & Reasons Promulgated |
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On 5 December 2019 |
On 14 January 2020 |
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Before
UPPER TRIBUNAL JUDGE RINTOUL
Between
mr Rupinder Singh
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Barr, legal representative
For the Respondent: Mr Govan, Senior Home Office Presenting Officer
DECISION AND REASONS
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This is an appeal under the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”). The challenge is to a decision of the respondent made on 24 November 2017 to refuse to issue them with a residence card as confirmation of their right to reside as the carers of an EEA national child (their son). The decision was taken on the basis that they had not provided adequate evidence to show that their son was a self-sufficient person as it was not permissible for him to rely on income from the parents unless it was lawful employment.
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On appeal to the First-tier Tribunal, the judge took the view that the appellant did not meet the requirements of the EEA Regulations as the child was not sufficient. He reached that conclusion on the basis that there was insufficient evidence of the appellant trading as claimed; that the accounts provided were unaudited, it not being clear either what the day-to-day expenditure was [19] and what was savings [20]. That was in addition to the fact that the appellant had known that the appellant had no legal status such that he was entitled to work legitimately. The judge was not satisfied either that there was, as is required by the Regulations, comprehensive medical insurance in place.
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The judge although asked to follow the decision of the Court of Appeal of Northern Ireland in Bajratari v Secretary of State for the Home Department [2017] NICA 74, declined to do so, deciding to follow the decisions from the Court of Appeal in England and Wales.
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Permission to appeal against that decision was granted and the matter then came before me in Belfast on 6 June 2019. For the reasons set out in that decision I found that the decision of the First-tier Tribunal involved the making of an error of law. Subsequent to my decision which was given orally, Advocate General Szpunar produced his opinion in Bajratari which by then had reached the European Court of Justice. Subsequent to my decision, the European Court of Justice handed down its decision as Bajratari [2019] EUECJ C-98/18.
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At the resumed hearing, Mr Barr sought to rely on written submissions and a bundle of material said to contain “up-to-date proof of the appellant’s situation.
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At the outset of the hearing it was agreed that, in light of the Court of Justice’s decision, the sole issue was whether there was self-sufficient. Mr Barr submitted that there was evidence that the family all had comprehensive health insurance and that the material from page 26 in the bundle onwards from HM Revenue & Customs showed the appellant’s income. He explained that the paperwork for the tax year 2018 to 2019 had not yet been completed. Mr Barr drew my attention to the fact that the appellant owns a house which is subject to a mortgage.
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In response to my questions, Mr Barr was unable to tell me what the monthly outgoings were and, when asked what the income had been over the last eighteen months, referred me to the bank statements from page 69 onwards. He submitted it could be inferred that the appellant could meet his expenses, paid his bills as the business has not folded.
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Mr Govan submitted that what was missing was any sort of evidence to establish the appellant’s current evidence, a breakdown of his circumstances, how he supports his children and what his personal expenses are. He submitted that the new evidence did not address what he described as an “evidential void”.
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Mr Govan submitted that in any event the profits shown in each tax year were low and as regards the savings account which it is said contained savings available to the family which has been amassed through money given to them by the extended family and friends, need not necessarily be available to him. In response, Mr Barr sought to rely on his written submissions, adding that it was clear that the appellant did not need to rely on the funds in the savings account and that there was sufficient evidence to show that he is self-sufficient.
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In the circumstances, I permitted Mr Barr to produce a schedule of income and expenditure within seven days and to permit Mr Govan to make written submissions in response. I have taken both of these into account in reaching my decision.
The Law
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The issue in this case is whether the child is self-sufficient within the meaning of the EEA Regulations, taking into account the resources of the parents. Self-sufficiency is defined by reference to Regulation 4 which provides as follows:
(c) “self-sufficient person” means a person who has—
(i) sufficient resources not to become a burden on the social assistance system of the United Kingdom during the person's period of residence; and
(ii) comprehensive sickness insurance cover in the United Kingdom;
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The key phrase is whether the person in question has “sufficient resources so as to avoid being a burden on the social assistance of the host member state” which in this case involves assessing the position of the parents.
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Despite that being the issue before me, neither party sought to address me as to its meaning, still less to address me and any of the relevant case law before me. Some assistance as to the meaning of this phrase can be drawn from SG v Tameside [2010] UKUT and Brey [2013] EUECJ C-140/12, as well as AMS v SSWP (PC) [2017] UKUT 48 (AAC).
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The Upper Tribunal’s task has been rendered even more difficult by the failure by the appellant to provide a proper schedule of income and expenditure. Whilst that has now, to a limited extent, been rectified by the production of what purports to be a schedule of income and expenditure to 31 August...
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