IA012602014

The appellants appealed to the First-tier Tribunal under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 and Regulation 26 of the 2006 Regulations on December 28, 2013. On May 1, 2014 Judge of the First Tier Tribunal Herwald (hereinafter referred to as the �FtTJ�) heard his appeal. He refused his appeal under the EEA Regulations in a determination promulgated on May 13, 2014.

The appellant lodged grounds of appeal on May 21, 2014 and on June 3, 2014 Judge of the First-tier Tribunal Page refused permission to appeal. The grounds were renewed to the Upper Tribunal and on August 21, 2014 Upper Tribunal Judge O�Connor found it arguable the FtTJ had erred by failing to have regard to the appellant�s written evidence or by failing to give adequate reasons. He also found it was further arguable that the FtTJ�s reasoning in paragraph [13(i)] was irrational.

The respondent filed a Rule 24 response dated September 3, 2014 in which she stated there was no error in law and the FtTJ was entitled to find the evidence did not demonstrate his ex-wife was a qualified person for the requisite period.

a. There was ample evidence before the FtTJ to demonstrate the appellant�s ex-wife was working and exercising treaty rights as at the date of their divorce. Page 23 of the original bundle contained a copy of the appellant�s ex-wife�s online HMRC Tax submission for 2012/2013 and page 25 contained the income and expenditure form that confirmed her self-employed income. The figure of �2,993 could be seen on the tax return as �profit from self-employment�. This was adequate evidence that the appellant�s ex-wife was working at the relevant time.

b. The FtTJ should have given more weight to the appellant�s claim that his ex-wife was working at the relevant date despite there being no actual documents to prove this. The FtTJ should have had had regard to the fact the appellant was now divorced from his wife and obtaining documents is not that easy.