hi Obie, i completely understand your
view now, but now i have no other chance to find other solutions(i am trying to convince my EX aswell for help)so before i will apply PR in may 2014 i want to get ready and use all the options..
now Obie and Vinny
can you guys please explain this in
AMOS and THEOPHILUS judgment..
The italics are mine. Ms Theophilus does not suggest that the procedural law of the Tribunal hindered her ability to prove her case. Rule 51 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 authorises the Tribunal to "allow oral, documentary or other evidence to be given of any fact which appears to be relevant to an appeal" … even if that evidence would be inadmissible in a court of law. Furthermore, as Mr Eicke pointed out, Ms Theophilus could have applied under regulation 50 for a witness summons requiring her ex-husband to attend and give evidence as to whether or not he was and had been working. She did not do so. Nor did she seek a direction under rule 45 requiring the Secretary of State to provide any information necessary for the determination of her appeal. Indeed, she made no relevant application to the Tribunal. As Maurice Kay LJ pointed out in the course of argument, in these circumstances it is impossible to identify any error of law on the part of the Tribunal in this respect.
Ms Theophilus also submitted that the decision of the House of Lords in Kerr v Department for Social Development [2004] UKHL 23 [2004] 1 WLR 1372 was authority for the proposition that it was for the Home Secretary to produce the documentation available to Her Majesty's Revenue and Customs and the Department for Work and Pensions that would establish that her former husband had worked. Again, I am unable to accept this submission. In her speech, with which the other members of the Appellate Committee agreed, Baroness Hale said:
61. Ever since the decision of the Divisional Court in R v Medical Appeal Tribunal (North Midland Region), Ex p Hubble [1958] 2 QB 228, it has been accepted that the process of benefits adjudication is inquisitorial rather than adversarial. Diplock J as he then was said this of an industrial injury benefit claim at p 240:
"A claim by an insured person to benefit under the Act is not truly analogous to a lis inter partes. A claim to benefit is a claim to receive money out of the insurance funds . . . Any such claim requires investigation to determine whether any, and if so, what amount of benefit is payable out of the fund. In such an investigation, the minister or the insurance officer is not a party adverse to the claimant. If analogy be sought in the other branches of the law, it is to be found in an inquest rather than in an action."
62. What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.
63. If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof. The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it. As Mr Commissioner Henty put it in decision CIS/5321/1998, "a claimant must to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn." The same should apply to information which the department can reasonably be expected to discover for itself.
64. That is the position on the facts of this case. It is not suggested that the claimant was in any way to blame for the way in which the undertakers had filled in the form for him. …
65. But the department freely acknowledges that such information is available to it. All it needs is a name and a date of birth, from which it can trace the National Insurance number, which in turn should enable it to discover whether benefits are being paid. In many cases, if there is a claim, the department can also discover whether or not the claimant has capital. Section 3(1) and (2) of the Social Security Act 1998 makes it clear that the relevant departments are able to use the information relating to social security which they hold for any purposes connected with their functions in relation to social security. Yet the department never asked the claimant for this information.
Indeed, the section of the claim form asking for details of other relatives does not ask for dates of birth (perhaps it will do so as a result of this case). Nor did the department seek this information from the claimant despite making further inquiries of him which revealed that it should have been asked. In those circumstances, the department cannot use its own failure to ask questions which would have led it to the right answer.
all i understand from above(its my responsibilty) that when i will apply pr next year using EEA4 i should write a cover letter to HO requesting to check them with HMRC,that my ex spouse was working, before refusing my application and giving me right of appeal?
am i making any sense?
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