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On 3 rd June 2014 the respondent refused the appellant a residence permit on the basis of a retained right of residence in accordance with Regulations, 6, 7 & 10 of the Immigration (EEA) Regulations 2006 (henceforth the EEA Regulations).
The appellant's appeal against the decision was dismissed under the EEA Regulations by First-tier Tribunal Judge James in a determination promulgated on the 24 th March 2015. However I found that the First-tier Tribunal had erred in law and set aside the decision in its entirety in my decision promulgated on 17 th November 2015. My reasons are set out in that decision which is appended at Annex A.
The matter came before me remake the appeal. The issue which remains to be determined is whether the appellant is entitled to a residence permit or permanent residence on the basis that she is married to an EEA national who is and/or was exercising Treaty rights as a qualified person in the UK in accordance either with Regulations 6 and 7 of the Immigration (EEA) Regulations 2006 or Regulation 15 of the Immigration (EEA) Regulations 2006.
The respondent provided evidence to the Tribunal together with a witness statement from Mr John Richards of the HMRC that the appellant's husband, Mr Sam Mukwaya, was employed in the UK and paid tax from March 2008 to February 2012 as an employed person, employed by Arriva Plc. There are no records for self assessment tax submissions or of the payment of tax on the basis of employment from 2012 onwards or prior to this date.
Mr Clarke submitted for the respondent that the evidence did not show that the appellant's husband had exercised Treaty rights for a continuous period of five years. The HMRC evidence clearly only showed a period of work of 3 years and 11 months. This did not suffice to show the appellant was entitled to permanent residence under Regulation 15 of the Immigration (EEA) Regulations 2006. He understood that the checks done by the HMRC were ones which should have recorded all tax paid by a person with Mr Mukwaya's national insurance number.
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