Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/00669/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18 April 2017
On 27 April 2017

Before

UPPER TRIBUNAL JUDGE WARR

Between

Jacinto De Melo
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

ENTRY CLEARANCE OFFICER (BOMBAY)
Respondent

Representation:
For the Appellant: Sponsor
For the Respondent: Mr P Nath, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of India born on 5 December 1943.

2. He appeals the decision of the respondent on 14 July 2015 to refuse his application to join the sponsor in the United Kingdom as a family member under Regulation 7 of the Immigration (European Economic Area) Regulations 2006. The Entry Clearance Officer took a point that the parties were not related. This point was conceded by the Entry Clearance Manager on 12 November 2015. However, the point taken by the Entry Clearance Officer that the appellant had failed to provide satisfactory evidence to show that he was wholly or mainly financially dependent on the sponsor was maintained.

3. The decision of the Entry Clearance Officer continues as follows:

“• You state that your sponsor arrived in the UK on 11 March 2013, and have submitted money transfer receipts from Western Union; however these are sporadic and the total amount transferred was £260;

• You have not submitted any further evidence of your financial circumstances, any evidence of your savings, income, assets or who owns the accommodation where you currently stay. You state that you currently reside in rented accommodation, and have done so since 1 January 2010, and have given no evidence that this arrangement cannot continue.

• In light of the above the documents submitted [sic], they do not show that you are wholly or mainly financially dependent on your sponsor, or if you are, that it is a dependency of necessity rather than choice. I am therefore not satisfied that the documents show that you are dependent on your EEA national family member.

• I am therefore not satisfied that the documents show that you need the financial support of your sponsor to meet your essential needs in India. I am not satisfied that you meet the requirements to qualify as a family member of an EEA national in accordance with Regulation 7 of the Immigration (European Economic Area) Regulations 2006.”

4. The Entry Clearance Manager, as I have said, conceded the point about the relationship between the appellant and the sponsor and noted the documents submitted with the appeal form – a payslip and birth certificate. The Entry Clearance Manager noted that on the issue of whether the appellant was wholly or mainly dependent upon the sponsor no further evidence had been provided and concurred with the decision reached.

5. The appellant’s appeal came before a First-tier Judge on 18 July 2016. The judge heard oral evidence from the sponsor (Wilson De Melo and his brother Jose). At the start of the hearing the judge records the Presenting Officer (Ms Goodfellow) explaining the respondent’s decision to the sponsor and the judge makes the following observation: “Given his response and the answers he gave to the questions he was asked I find he has not understand [sic] the requirements of the Regulations or the burden of proof that is upon the appellant given these requirements.” It would appear that the judge meant that the sponsor had not understood the requirements of the Regulations or that the burden of proof lay on the appellant.

6. The determination continues as follows:

“12. At the hearing Wilson DeMelo said he sent money to his father and referred to the copy of his brother’s bank statement, he said this had been included because his brother also sometimes sends money. However, he then said the statement provided did not actually show any money sent to his father. When Jose DeMelo gave evidence he said he did not provide his father with any financial support. Wilson DeMelo also referred to the copy of his own bank statement but again said this does not show money provided to his father.

13. In answer to questions by Ms Goodfellow Wilson DeMelo stated his father has his own bank account. When he sends his father money that money is put in his father’s account by his father. Wilson DeMelo receives receipts for money he sends using Western Union. His father collects this money from Western Union and will be given a receipt when he does so. Wilson DeMelo also confirmed it would be possible to provide documents relating to his father’s account to show the money he has received from his son. He confirmed it may be possible to provide a letter from a doctor detailing his father’s state of health and any medical conditions he suffers from.

14. The Appellant lives alone in India. Wilson DeMelo said a friend of his helps to look after him. When Jose DeMelo was asked who is looking after your father he said nobody but then said neighbours look out for him.

15. Both Wilson and Jose DeMelo have been living in the UK since 2013. It appears the Appellant has largely been looking after himself since at least that time. Wilson DeMelo has provided some evidence of money transfer receipts from Western Union, unfortunately these have not been included in the Respondent’s bundle but the Respondent describes them as being sporadic and show a total sum transferred of £260, this was not challenged by Wilson DeMelo.

16. Given the evidence of Wilson DeMelo the Appellant should be able to provide receipts he is given when using Western Union to make money transfers, receipts his father receives when collecting this money, evidence relating to his father’s bank account/s showing his source or sources of income. It should also be possible for both the Appellant and Wilson DeMelo to provide further evidence, such as details of all income, savings, and arrangements in relation to accommodation to show why they say the Appellant is dependent on his son. If the Appellant’s health is a relevant issue it should be possible to provide medical evidence to support this aspect of the claim.

17. On the basis of the evidence available and for the reasons set out above I find the Appellant has not shown he is financially dependent, either wholly or mainly, on his son/sponsor. The evidence provided of financial support is very modest showing payments in the region of £260. Therefore, I find the decision appealed against was made in accordance with the Immigration (European Economic Area) Regulations 2006. The Appellant has not demonstrated he satisfies the requirements of regulation 7.”

7. Accordingly the judge dismissed the appeal.

8. Permission to appeal was granted by a First-tier Judge on 24 February 2014. It was said that the hearing was unfair as there was no interpreter and the sponsor did not understand English properly, which led to a misunderstanding. It was claimed that the respondent had not filed a bundle of documents so that important documents such as the Western Union money transfer receipts were not before the judge.

9. The First-tier Judge notes that no interpreter was requested in the notice of appeal and none was requested at the hearing and no criticism could be made of the judge. It also appeared that the respondent had filed a bundle but it was said that this did not include all the evidence submitted with the application. The judge proceeded on the assumption that the receipts which she had not seen corresponded with the sporadic remittances described in the refusal decision and this matter was not challenged by the sponsor at the hearing. However, given the possible language difficulties the First-tier Judge found “this is an arguable error of fact amounting to an arguable error of law, given that a central issue in this appeal was that of financial dependency”.

10. Having granted permission the First-tier Judge reminded the appellant that the burden of proof was on him to establish financial dependency and added:

“In the event that the appellant does not have copies of the evidence submitted to the ECO, which he accepts establishes financial dependency, he may wish to submit a further application supported by the evidence helpfully set out by the judge at paragraph 16 of his decision.”

11. On 6 March 2017 the respondent filed a response noting that the sponsor had not requested an interpreter for the hearing and had not requested one at the hearing and had not provided further documents that showed evidence of his father’s dependency although he claimed that they were in existence. It was clear from the Record of Proceedings that the judge had assisted the sponsor as much as she was able. The respondent submitted: “Essentially the appellant/sponsor were not prepared for the hearing. The fact that the judge found against them in this instance does not amount to an error of law.”

12. I explained the procedures to the sponsor and read out the respondent’s response to the grounds of appeal.

13. In relation to the issue of the interpreter the sponsor said that he had requested an interpreter after the hearing. There appeared to be no difficulties whatever in the sponsor explaining matters before me or understanding what was going on.

14. I noted that no bundle had been submitted and the case had to be put back so that material could be copied. There were Western Union receipts some of which had been before the judge, the sponsor said. It appears there are some receipts which postdate the judge’s decision. Towards the end of the hearing I was handed in a collection of statements from individuals including a doctor’s letter stating that the appellant was fully dependent on his sons in the UK and that he was living alone following the death of his wife in 2014. No bundle had been submitted including this material as required by the Rules in advance of the hearing.

15. Mr Nath relied on his Rule 24 response. It was quite clear that no interpreter was requested or required before the First-tier Tribunal and the sponsor had answered questions and had plainly understood what was going on at the hearing before me. The material relied upon should have been submitted in advance. The judge had proceeded properly.

16. The sponsor submitted that his father was alone following the death of his mother and was totally dependent upon him. He had sent money regularly and he wanted to be with his children. He was not sure whether the letters in support which he had handed in at the hearing before me had been before the First-tier Judge. I reserved my decision.

17. I remind myself that I can only interfere with the judge’s decision if it was materially flawed in law.

18. Before that hearing as before the hearing before me the appellant had been directed to file any evidence in accordance with the usual procedure.

19. I do not find that anything turns on the complaint about the interpreter. The judge’s manuscript Record of Proceedings is clear and legible. There is no suggestion of any complaint about there being no interpreter and no mention of any difficulties in understanding what was going on. There was no request for an interpreter. Any request for an interpreter appears to have been made after the hearing. The Record of Proceedings makes it quite clear that the sponsor was fully able to put the case he was trying to make. Equally, as the judge records, he did not appear to appreciate that the burden was on the appellant and that he should have put in a bundle of all the material on which he relied. It is apparent from paragraphs 12 and 13 that there were differences between the account given by both the appellant and his brother and it was acknowledged by the sponsor according to what is written in paragraph 13 that it would be possible to lodge further material.

20. It is clear from the determination and from the Record of Proceedings that the judge gave careful attention to all the material before her and made full allowance for the fact that the appellant was not represented. The judge also points out that the appellant should be able to provide further evidence and further receipts.

21. As the judge records on the evidence available to her the appellant had not shown that he was financially dependent on the sponsor.

22. It is possible that the sponsor interpreted paragraph 16 of the decision as enabling him to have the matter reheard on the basis of such material as he put in subsequently. That is not the position. As I have said, I can only reopen the matter if there was a material error of law in the proceedings before the First-tier Judge. The proceedings appear to have been conducted scrupulously fairly.

23. As the First-tier Judge stated when granting permission to appeal the way forward may be to submit a further application supported by the evidence helpfully set out in the decision at paragraph 16. I am not satisfied that the material lodged at the hearing before me establishes a material error of law on the part of the First-tier Judge and the sponsor is unclear about whether the material was placed before her.

24. Any further material should be put before the respondent in a fresh application.

Notice of Decision

The determination of the First-tier Judge was not flawed by a material error of law and this appeal is dismissed. The decision of the First-tier Judge is confirmed.

Anonymity Direction

The First-tier Judge made no anonymity order and I make none.

Feed Award

The First-tier Judge made no Fee Award and I make none.

Signed Date 26 April 2017

G. Warr, Judge of the Upper Tribunal