When (HMRC) records go wrong

Fri, 25 Jun 2021

Becket Bedford is currently embroiled in the intricacies of EEA deport notices. They involve public law arguments and the slow process of incremental gains e.g., R (Costea) v SSHD [2021] EWHC 1685 (Admin) or R (Mendes) v SSHD [2021] EWHC 115 (Admin).

So, courtesy of Jay Islam at Fountains Solicitors, it felt good to be in the tribunal this month arguing "retained rights" in an ordinary EEA appeal, only this was the client's third appeal on the point in four years.

After 10 years of marriage, a Bangladeshi gentleman divorced his Hungarian spouse in 2017. They were separated in 2013. Briefly, if she acquired permanent residence after 5 years of working in that time, then he qualified too.

In May 2017 the First-tier found that she had worked 4 years from September 2009 until March 2013, the date when the married parties separated. After that time the judge found he could not be persuaded she continued working in the UK. And since the parties were separated, the appellant had no evidence to prove that she did. So he begged HMRC to reveal if his former spouse had continued working after 2013 and into 2014.

The HMRC response came back in February 2020 that she had never worked, except for two brief spells in 2008 and 2011. This was not the response the appellant was after. It contradicted what he himself knew and what the previous judge had found. Unsurprisingly his second appeal was drummed out of court by a different judge in 2019 who commented, "it is sad to see the appellant make yet another application on the same basis and on the same evidence as his previous ones."

After this point Fountains solicitors took over and in May 2021 they forced a concession, when a senior presenting officer from the Home Office Presenting Unit stated for the record that he had read the signed statement of a caseworker at HMRC (which he would not disclose), but which confirmed that the appellant's spouse had worked at Tescos at least from 2013 to 2015.

In former times, the First-tier Judge at the live hearing of the appellant's third appeal was also a senior presenting officer. We used to appear regularly against one another in the Upper Tribunal. On being ushered forward, the tribunal now congratulated the appellant, on a new decision by the Home Office to "withdraw to grant". In Home Office speak, the Home Office case was doomed to failure given the evidence of its own senior presenting officer in May. It had taken a very long while, but now a residence card would soon follow, except three things:

First, the residence card cannot possibly reach the appellant ahead of the looming 30 June 2021 deadline for EU settlement applications. So, before the week is out, he must apply for EU settled status and appeal again, perhaps for a fourth time.

Second, HMRC records do go wrong! From the evidence of payslips and P45s already in the client's possession, collated by Fountains solicitors for the first time in this appeal, it could be shown that the appellant's spouse had worked continuously in the 5 year period 2007 to 2012; thus she qualified for permanent residence, and the appellant with her, as long ago as October 2012, before the parties even separated. Sadly the HMRC records did not show it.

Third, often a case may be won by the simple act of putting the papers in right order.

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