Automated Summary
Key Facts
The Upper Tribunal (Immigration and Asylum Chamber) allowed Muhammad Naeem Khan's appeal (EA/04466/2018) on EU law grounds. The appellant, a Pakistani national, claimed to be the family member of an EEA national (Hungarian, Agnes Kocsandi) exercising EU treaty rights. The First-tier Tribunal dismissed his appeal for insufficient evidence of self-employment at the hearing date (July 2019). The Upper Tribunal found the First-tier Tribunal erred in law by assessing self-employment at the hearing date instead of the divorce finalization date (October 2017). Evidence confirmed the appellant was self-employed during the 2017-2018 tax year, meaning he had acquired permanent residence by April 2018. Consequently, the appeal was allowed as the First-tier Tribunal decision involved an error of law.
Issues
The Upper Tribunal determined that the First-tier Tribunal erred in assessing the appellant's self-employment status at the hearing date (January 2019) for regulation 10(6) of the EEA Regulations 2016. The correct assessment date is divorce finalisation (October 2017), and evidence showed the appellant was self-employed at that time, meaning he had already acquired permanent residence by April 2018.
Holdings
Appeal allowed on EU law grounds. The Upper Tribunal found the First-tier Tribunal erred in law by requiring evidence of self-employment at the hearing date (January 2019) rather than the divorce finalization date (October 2017). The appellant likely acquired permanent residence by April 2018, making it unnecessary to prove self-employment at the hearing date.
Remedies
The Upper Tribunal allowed the appeal, set aside the First-tier Tribunal decision, and remade the decision on EU law grounds. The Tribunal found the First-tier Tribunal erred in law by incorrectly assessing the temporal requirements for the appellant's right of residence, concluding the appellant had acquired a right of permanent residence by April 2018.
Legal Principles
The court applied the purposive approach to interpret regulation 10(6) of the EEA Regulations 2016, determining that the requirement for self-employment must be assessed from the divorce date (18 October 2017) until acquisition of permanent residence, not at the hearing date (January 2019). This interpretation aligns with Article 13 of the Citizens Directive and the case law in Gauswami.
Precedent Name
- Baigazieva v SSHD
- Gauswami
Cited Statute
- Citizens Directive 2004/38/EC
- The Immigration (European Economic Area) Regulations 2016
Judge Name
- Upper Tribunal Judge Canavan
- Deputy Upper Tribunal Judge Roberts
Passage Text
- For these reasons, we conclude that the First-tier Tribunal decision involved the making of an error on a point of law. The decision is set aside. The analysis of the evidence we have undertaken in order to determine whether there was an error of law determines the appeal. If the appellant acquired a right of residence by April 2018 the appeal must be allowed.
- Although the judge was correct to consider the position at the date of the divorce, it follows from our analysis that she erred in focusing her subsequent assessment on whether there was evidence to show that the appellant was a worker at the date of the hearing rather than considering whether the evidence indicated that he had already acquired a right of permanent residence.