SANJAY BOODHOO v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

In an appeal under the Immigration (European Economic Area) Regulations 2006, section 85A of the Nationality, Immigration and Asylum Act 2002 does not restrict the Tribunal’s power under section 85(4) to consider relevant post-decision evidence. The Tribunal may consider evidence concerning any matter relevant to the substance of the decision, including matters arising after that decision.

Residence documentation confirms, rather than creates, an EU right of residence. Where later evidence establishes that the requirements for qualified-person status are met, it must be considered. Relevance is a legal judgment; it does not confer a discretion to exclude evidence which is relevant and decisive.

Maria Gonzales Serano, a Spanish national, and her Mauritian husband, Sanjay Boodhoo, applied for documentation confirming their rights of residence in the United Kingdom. The Secretary of State refused the applications because Ms Serano was not accepted as a qualified person, including because the couple had not produced evidence of comprehensive sickness insurance.

At the First-tier Tribunal hearing, the appellants produced a certificate effective from 11 May 2012. The judge held that it could not be considered because it concerned a post-decision matter, and dismissed the appeals. The appellants appealed to the Upper Tribunal. The Secretary of State ultimately accepted that the First-tier Tribunal ought to have allowed the appeals.

1. Appeal allowed. The First-tier Tribunal made a material error of law by applying DR (Morocco) [2005] UKAIT 38 to an EEA appeal and by misapplying section 85(4) of the Nationality, Immigration and Asylum Act 2002.

2. Schedule 1 to the Immigration (European Economic Area) Regulations 2006 brought section 85(4) into play. Its plain language permitted the Tribunal to consider evidence about any matter relevant to the substance of the decision, including evidence arising after the decision. The exceptions introduced by section 85A did not apply to an EEA appeal.

3. The May 2012 insurance certificate was admissible. An appeal against refusal of residence documentation concerned whether the appellant or spouse was, in fact, a qualified person. Such documentation was evidential confirmation of an EU right, not the source of that right. Once the certificate was produced and accepted as reliable, it established that Ms Serano was self-sufficient and a qualified person.

4. The certificate was not merely relevant; it was decisive. The assessment of relevance was a legal judgment and did not give the judge a discretion to exclude relevant evidence. If the Secretary of State required time to investigate the certificate, the appropriate course was to seek an adjournment.

5. The decision was set aside and re-made. The Tribunal declared that, from 11 May 2012, Ms Serano was a qualified person and she and her spouse were entitled to residence documentation supporting that status.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision, and re-made it by declaring entitlement to residence documentation from 11 May 2012.
• First-tier Tribunal: dismissed the appeals on 17 May 2012 after excluding the post-decision comprehensive sickness insurance certificate.