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United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments


You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> HU127122015 [2017] UKAITUR HU127122015 (1 December 2017)
URL: http://www.bailii.org/uk/cases/UKAITUR/2017/HU127122015.html
Cite as: [2017] UKAITUR HU127122015

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Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU /12712/2015

 

 

THE IMMIGRATION ACTS



Heard at Field House

Decision and Reasons Promulgated

On 23 November 2017

On 01 December 2017

 

 

 

Before

 

UPPER TRIBUNAL JUDGE KEKIĆ

 

 

Between

 

Rodriguez maxime batanga bolomo

(anonymity order not made)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent



Representation :

For the Appellant: Mr I Chukwudolue of Moorehouse Solicitors

For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

 

 

DETERMINATION AND REASONS

 

1.              The Secretary of State seeks to challenge the determination of First-tier Tribunal Judge A W Khan allowing this appeal by way of a determination promulgated on 6 March 2017. For ease of reference I shall refer to the parties as they were before the First-tier.

 

2.              The appellant is a national of Cameroon, born on 16 November 1981. His application for indefinite leave to remain on the basis of ten years' residence was refused by the respondent on 23 November 2015 because time spent here under the EEA Regulations did not count towards the period required under paragraph 276A of the Immigration Rules.

 

3.              The appellant entered the UK in June 2005 with leave as a student until 1 April 2007. What happened next is unclear. According to the determination, further leave was granted until 31 August 2010 but it would appear from the decision letter of 23 November 2015 that an application was rejected but that leave was subsequently granted until 31 August 2007, followed by a further period of leave until 31 August 2008. An in-time application for further leave was rejected on 15 January 2009 but leave was subsequently granted until 31 August 2010. There is then consensus that the appellant obtained a residence permit on the basis of his marriage to an EEA national, valid until 14 December 2015. On 13 October 2015, the appellant made a human rights application for leave to remain on the basis of ten years' lawful residence. That was considered under paragraph 276B of the Immigration Rules and under the respondent's Long Residence Modernised Guidance.

 

4.              The respondent considered whether the appellant's spouse had been a qualified person between 2010 and 2015 but found that there was no evidence that she had. Two requests for additional documentary evidence achieved nothing further from the appellant who maintained he was not in contact with the sponsor. The respondent was unwilling to exercise her discretion under the guidance to consider the period under the EEA Regulations towards the ten-year period required under the rules because of the lack of evidence on the sponsor's exercise of treaty rights and the application was, accordingly, refused.

 

5.              When the matter came before the judge, he found that there was evidence of the sponsor's employment, that she had also been in receipt of a maternity certificate, that she had spent a period in hospital with a severe depressive episode and that she had submitted evidence of comprehensive sickness insurance for the whole family in August 2014 when she had stopped receiving jobseeker's allowance. He found that the respondent should have exercised her discretion in the appellant's favour and that accordingly he had achieved ten years of lawful residence. He allowed the appeal.

 

6.              The respondent sought and obtained permission to appeal from First-tier Tribunal Judge Frankish on 12 September 2017. The matter then came before me on 23 November 2017.

 

 

 

7.              The Hearing

 

8.              The appellant was in attendance at the hearing before me at Field House but there was no oral evidence.

 

9.              I heard submissions from the parties. Ms Isherwood submitted that the judge had failed to engage with the issues raised in the decision letter. She questioned how, on the evidence, the judge could have concluded that the sponsor was exercising treaty rights when, for example, her P60 showed an income of just £749. She submitted that this was marginal or incidental employment at best. She also queried the judge's reference to a maternity certificate having been issued in October 2012 but the child having been born in November 2013 (at paragraph 9). On the issue of comprehensive sickness insurance, Ms Isherwood submitted that the evidence did not demonstrate that there were ongoing payments being made. She further submitted that it was not for the judge to review matters of the respondent's exercise of discretion. She criticized the judge for failing to provide a chronology to show how the ten years had been calculated. She submitted that the determination could not stand and the matter should be remitted to the First-tier Tribunal for a fresh hearing.

 

10.          Mr Chukwudolue responded. He submitted that the respondent's challenge was just a disagreement with the judge's findings. There was a chronology in paragraph 9 of the determination. The appellant had spent some time as a student and some time under the Regulations. The sponsor had mental health issues. The appellant had been responsible for the welfare of their child. Part time work was permitted. The sponsor had also been a jobseeker and that made her a qualified person. The insurance payments were continuing. The judge found that cover had been paid for. The sponsor had access to the family funds even if she had no funds of her own. The finding on discretion was just a passing comment. If there were any errors they were not material as the appellant could not be removed because he was caring for an EEA national child.

 

11.          In reply, Ms Isherwood submitted that the judge had not grappled with the issue of the child and so one could not speculate on what decision would be made in that respect. If it was the appellant's submission that the sponsor did not have funds, that reinforced the respondent's case.

 

12.          That completed submissions. At the conclusion of the hearing, I reserved my determination.

 

 

 

13.          Conclusions

 

14.          I have taken full account of the submissions made and the evidence before me. The appellant made his application under the Immigration Rules and cannot rely on any period spent under the Regulations as part of the ten-year continuous residence period relied on under 276B because according to the definition of continuous residence at 276A(b) it is existing leave to enter or remain. However, there is guidance on this matter contained in the respondent's 'modernised guidance on long residence', to which there is reference in the decision letter of 23 November 2015. The relevant portion states:

 

Time spent in the UK does not count as lawful residence under paragraph 276A of the Immigration Rules for third country nationals who have spent time in the UK as:

-¢ the spouse, civil partner or other family member of a European Union (EU) national

-¢ an EEA national exercising their treaty rights to live in the UK but have not qualified for permanent residence

-¢ former family members who have retained a right of residence.

During the time spent in the UK under the provisions of the EEA regulations, the individuals are not subject to immigration control, and would not be required to have leave to enter or leave to remain... However, you must apply discretion and count time spent in the UK as lawful residence for an EU or EEA national or their family members exercising their treaty rights to reside in the UK. Sufficient evidence must be provided to demonstrate that the applicant has been exercising treaty rights throughout any period that they are seeking to rely on for the purposes of meeting the long residence rules... When granting a Long Residence application in which a person has relied on a period of leave in the UK exercising treaty rights as an EEA national or their family member, any grant of leave must be made outside the Immigration Rules (Version 15.0 : 3 April 2017, at page 24; added emphasis).

 

15.          The respondent had regard to this guidance when making her decision but as she found that the evidence did not show that the sponsor had been exercising treaty rights for the required period from August 2010, she did not exercise discretion in the appellant's favour.

 

16.          The judge erred when he concluded that the respondent should have exercised discretion in the appellant's favour. I cannot pass this off as a "passing comment" as I was urged to do. It was plainly a finding which was instrumental to the outcome of the appeal. As the appellant had withdrawn his appeal against the refusal of a permanent residence card and as this discretion witness statement a matter for the respondent outside the rules, it was not reviewable by the judge.

 

17.          There are also problems with the judge's finding that the sponsor was a qualified person and in employment. As pointed out by the respondent, the sponsor's earnings are so modest as to be minimal. The employment cannot even be described as part- time as Mr Chukwudolue submitted. Whilst there are no minimum number of hours that an EEA national must be employed for in order to qualify, the employment must be "genuine and effective and not marginal or supplementary" (The European Modernised Guidance, 7 April 2015). Although this was raised as an issue in the decision letter, Ms Isherwood is quite right to say it is not a matter the judge grappled with or resolved. Plainly the limited income did not provide effective earnings for the support of the family and was substantially below the Primary Earnings Threshold.

 

18.          There are also problems with the judge's finding on the matter of comprehensive sickness insurance. The judge found that the BUPA insurance had been paid for but he gives no reasons for this finding and fails to point to the evidence which led to this conclusion. Even if there was evidence of a single payment, the appellant is required to show that the payments have continued throughout the required period.

 

19.          The judge is silent on the period when the sponsor was registered as a jobseeker (at paragraph 9) and his observation that a maternity certificate was issued in October 2012 does not accord with the date of birth for the child of November 2013 (ibid). Nor is it clear how the appellant could have been receiving jobseeker's allowance at the same time as receiving a maternity grant and/or being in hospital with mental health issues (also at paragraph 9). The judge also failed to deal with the period after the sponsor's release from hospital and the termination of job seekers' allowance.

 

20.          The judge's findings are all contained in a single paragraph (9) and regrettably do not provide a reasoned conclusion. They read more as statements without reference to specific evidence or reasons.

 

21.          It was argued for the appellant that even if there were errors of law in the decision, they were not material as the appellant was caring for an EEA child. That may or may not be the case but as there was no evidence called on this issue, I cannot speculate on that. The judge made no findings on any family life issues.

 

22.          For these reasons, I find that the judge made material errors of law and his decision cannot stand. The parties were agreed that if such a decision were reached, then the matter should be remitted to the First-tier Tribunal for a re-hearing. The matter shall therefore be transferred to the First-tier Tribunal for a fresh decision to be made on all issues.

 

 

23.          Decision

 

24.          The First-tier Tribunal made errors of law such that the decision is set aside. It shall be re-made by another judge of that Tribunal at a date to be arranged.

 

25.          Anonymity

 

26.          No request for an anonymity order was made and I see no reason to make one.

 

 

Signed

Upper Tribunal Judge

 

Date: 27 November 2017

 


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URL: http://www.bailii.org/uk/cases/UKAITUR/2017/HU127122015.html