Upper Tribunal (Immigration and asylum chamber), 2022-05-04, IA/00505/2020
| Appeal Number | IA/00505/2020 |
| Hearing Date | 20 April 2022 |
| Published date | 19 May 2022 |
| Date | 04 May 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: IA/00505/2020
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00505/2020
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 20 April 2022 |
On 04 May 2022 |
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Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
Between
noman qureshi
(anonymity directioN NOT MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr R Jesurum, Counsel, instructed by Zahra and Co Solicitors
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
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This is the re-making of the decision in the Appellant’s case following the earlier error of law decision made by a panel of the Upper Tribunal (Upper Tribunal Judge Norton-Taylor and Deputy Upper Tribunal Judge Monson), promulgated on 20 January 2022, by which the decision of the First-tier Tribunal was set aside. The full error of law decision is appended to this re-making decision.
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The Appellant is a citizen of Pakistan, born in 1990. The essential factual background can be stated briefly. On 30 June 2015, he married Ms Vasile, a Romanian citizen, whilst they were both in Cyprus. She then came to the United Kingdom and he followed sometime after, arriving here in 2016. The Appellant claimed to have lived with Ms Vasile for approximately a year before they separated. Divorce proceedings were initiated on 24 May 2019 and the marriage was dissolved on 12 November 2019. On 9 January 2020 the Appellant applied for a residence card on the basis of a claimed retained right of residence in the United Kingdom, pursuant to regulation 10 of the Immigration (European Economic Area) Regulations 2016 ("the Regulations").
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On appeal from the refusal of that application, the First-tier Tribunal was unimpressed with the evidence provided and concluded that: (a) the couple had never cohabited in the United Kingdom; and (b) the Appellant was not employed or self-employed at any material time. The judge went on to conclude that the Appellant did not have a retained right of residence and duly dismissed the appeal. It is to be noted that the Respondent had expressly conceded that Ms Vasile had been exercising Treaty rights in the United Kingdom.
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The Upper Tribunal concluded that the judge had erred in law in two respects: first, that inadequate reasons had been provided to support the conclusion that the Appellant had produced contrived evidence relating to his claimed self-employment; second, that, contrary to the judge’s view, there was no requirement for cohabitation in respect of regulation 10(5)(d)(i) of the Regulations. The finding that the Appellant and Ms Vasile had not in fact cohabited was expressly preserved.
The issues
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The live issues identified in the error of law decision were: (a) whether the Appellant and Ms Vasile had resided in the United Kingdom at the same time for at least one year prior to the initiation of divorce proceedings on 24 May 2019, pursuant to regulation 10(5)(d)(i) of the Regulations; (b) whether the Appellant could show that he was, if he had been an EEA national, a worker, a self-employed person or a self-sufficient person, pursuant to regulation 10(6)(a) of the Regulations.
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I record here that Mr Whitwell did not seek to go behind the concession previously made by the Respondent in respect of Ms Vasile’s exercising of Treaty rights in the United Kingdom at all material times. Nor did he seek to argue that the Upper Tribunal’s construction of regulation 10(5)(d)(i) of the Regulations was incorrect. In that regard I restate the conclusion that that particular provision does not require cohabitation, but merely that the EEA national and their non-EEA national spouse had resided in the United Kingdom at the same time for at least one year prior to the initiation of divorce proceedings.
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When the construction of regulation 10(5)(d)(i) set out above was being considered in the error of law decision, the panel had not had its attention drawn to the decision of the Upper Tribunal in HS (EEA: revocation and retained rights) Syria [2011] UKUT 00165 (IAC), which, at paragraph 43, confirmed that this particular provision of the Regulations would be satisfied if “both spouses were living in the United Kingdom rather than living together in the same household in the United Kingdom.” This decision only reinforces the panel’s own view.
The documentary evidence
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I have considered the relevant documentary evidence contained in:
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the Respondent’s original appeal bundle, paginated 1-118;
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the Appellant’s consolidated appeal bundle, indexed and paginated 1-258;
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four payslips purporting to relate to Ms Vasile’s employment in 2018 and 2019
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Certain items of evidence contained in the Appellant’s bundle and the payslips had not been before the First-tier Tribunal. His solicitors helpfully identified these and made what was in effect an application under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Mr Whitwell made no objection to this new evidence being admitted. In all the circumstances, I concluded that it was appropriate to admit this evidence.
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During the course of oral evidence I was asked to view the Appellant’s mobile telephone in order to see telephone call records purporting to have been made by the Appellant to Ms Vasile in recent months for the purposes of obtaining her payslips. Mr Whitwell made the legitimate point that there might be concerns as to the weight attributable to this evidence, but he did not have any objection in principle. I concluded that I should look at the telephone for the purposes requested. I ensure that Mr Whitwell saw precisely what I did and that a note was taken.
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Before moving on, I need to make a couple of comments regarding the evidence. First, the index on the Appellant’s consolidated bundle was inadequate: it simply listed three groups of evidence; “witness statements”, “evidence of residence”, and “evidence of self-employment”. No attempt had been made to particularise the index, as it should have been. This did not assist anyone in making reference to specific items of relevant evidence at the hearing. The second point relates to the absence of an updated witness statement for the Appellant. It is quite clear to me that this should have been done, particularly in light of the clearly stated issues falling for consideration at the re-making stage. In the event, the absence of a new witness statement resulted in over-lengthy and at times confusing oral evidence.
The oral evidence
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The Appellant and four supporting witnesses attended the hearing. All gave evidence with the assistance of an Urdu interpreter. This evidence is of course a matter of record and I do not propose to set out in any detail here.
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In summary, the Appellant adopted his previous witness statement (this was undated; another omission which should have been addressed by his representatives). He was asked at length about his employment and claimed self-employment history. The thrust of the responses was as follows. He had started self-employment as a trader (selling T-shirts) towards the end of 2018. This had continued (with some periods of inactivity due to moving around and the Covid-19 restrictions) until the present day. In addition, there had been employment at mobile telephone shops in Winchester (“Phone World”) in 2019 and then Bournemouth (“iCrack”) in 2020/2021, and as a pizza delivery driver, also in Bournemouth in 2020/2021 (“El Murrino”).
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In cross-examination, Mr Whitwell quite properly interrogated the issue of claimed self-employment, focusing on an absence of documentary evidence, what was said in the 2020 application form, a lack of clarity as to the T-shirt business, and the manner in which Ms Vasile’s payslips had been obtained.
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The four supporting witnesses all adopted their respective statements. Their evidence related to claimed knowledge of the Appellant and Ms Vasile in the United Kingdom, primarily in the years 2016 and 2017. Three of the four witnesses also attested to knowledge of the Appellant’s T-shirt-selling business.
Submissions
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Mr Whitwell relied on the Respondent’s decision letter, dated 23 June 2020, subject to what was said in the decisions of the First-tier Tribunal and the Upper Tribunal. As mentioned previously, he did not seek to argue that Ms Vasile had not been exercising Treaty rights, or that the construction given to regulation 10(5)(d)(i) of the Regulations was incorrect. He submitted that the Appellant had not provided evidence in a straightforward manner and that the witnesses were all his friends and perhaps had little to lose by either making up or exaggerating evidence in order to assist him. He also noted that they had stated that the Appellant had cohabited with Ms Vasile, a state of affairs which the First-tier Tribunal had rejected. The lack of relevant documentary evidence was “striking”. There was no audit trail in respect of Ms Vasile’s payslips. More evidence from her could and should have...
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