IA013762014

The appellant, Waqas Khalid, was born on 20 September 1985 and is a citizen of Pakistan. The appellant had appealed against the refusal by the respondent of his application for a residence card as confirmation of his right to reside in the United Kingdom as the spouse of an EEA national (Lucie Sidakova � hereafter referred to as the sponsor). The appellant appealed against that decision to the First-tier Tribunal (Judge Pirotta) which, in a determination promulgated on 19 March 2014, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.

The appellant did not attend the hearing of the Upper Tribunal on 2 July 2014 nor was he represented. I am satisfied that a notice of the hearing was sent both to the appellant and to his solicitors (Sky Solicitors Ltd) by first class post on 3 June 2014. In the absence of any satisfactory explanation for the absence of the appellant or his representatives, I decided to proceed with the hearing in any event.

The grounds complain of the refusal by the judge to consider documentary evidence which had been submitted in support of the application. Mrs Pettersen, for the respondent, accepted that the judge had erred by refusing to consider the documents provided by the appellant given that this was not a points-based decision under appeal but an in-country appeal and there was nothing to prevent the evidence from being admitted by the judge. In the circumstances, I set aside the determination of the First-tier Tribunal and have remade the decision.

I agree with Mrs Pettersen. If the sponsor�s wages were, as the covering letter with the bundle suggested, paid into the appellant�s account it is not clear what has happened to the 20 pence over and above the transfer payment which appears on the appellant�s wage slips. I also agree with Mrs Pettersen that it makes no sense (without further explanation or evidence which have not been forthcoming) that the sponsor�s own wages are not paid to her or into a joint bank account but to the appellant.

I find that the anomalies which I have described above are sufficient, in the absence of any proper explanation, to cast significant doubt upon the credibility of the evidence adduced by the appellant. I am reminded that the burden of proof in the appeal rests on the appellant subject to the standard of proof of the balance of probabilities. I am not satisfied that the appellant has discharged the burden of proving that the sponsor has exercised and is exercising Treaty Rights in the United Kingdom as an EEA citizen. The appeal against the immigration decision is dismissed accordingly.