Tribunal decisions

The decision

IAC-FH-CK-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: EA/00724/2021[UI-2021-000999]
EA/00727/2021[UI-2021-001005]
EA/00732/2021[UI-2021-001007]
EA/00738/2021[UI-2021-001009]

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 May 2022
On the 11 July 2022
Extempore

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

ENTRY CLEARANCE OFFICER
Appellant
and

Mrs Sirad Yusuf Aden
Mr Abdinur Abdirahman Isse
Mr Jama Abdirahman Isse
Miss Nura Abdirahman Isse
(ANONYMITY DIRECTION not mADE)
Respondents

Representation:

For the Appellant: Ms J Isherwood, Senior Home Office Presenting Officer
For the Respondents: Mr R De Ruano, Legal Representative, Kingswright Solicitors

DECISION AND REASONS
1. For ease of reference I shall refer to the parties as they were before the First-tier Tribunal. Thus, the Entry Clearance Officer is once again the Respondent and the named individuals are the Appellants.
2. The Respondent appeals against the decision of First-tier Tribunal Judge I Howard (“the judge”), promulgated on 19 October 2021. By that decision, the judge purported to allow their appeals against the Respondent’s refusal of their applications for family permits under the Immigration (European Economic Area) Regulations 2016 ("the Regulations"). Those applications were based on claimed dependency on the United Kingdom-based Sponsor, a Norwegian citizen. He was the son of the first Appellant, the full sibling of the second and fourth Appellants, and the half-sibling of the third Appellant. The Appellants’ case was that the Sponsor had been sending money back to them over the course of time and that this constituted relevant dependency for the purposes of EU law and the Regulations.
3. On appeal from the Respondent’s refusal of the applications, the judge confirmed that the relationships between the Sponsor and the Appellants were not in dispute. The judge found that the Sponsor had been sending money back to the Appellant from September 2019, when they were still residing in Somalia. In October of that year they all fled to Uganda and the authorities there subsequently recognised them as refugees (the judge made reference to Kenya in his decision, but that was clearly an error).
4. The judge recited the Sponsor’s evidence that he had been sending approximately US$600 a month and that this had been used to pay for accommodation and to buy basic necessities. Money transfer receipts appeared to reflect the Sponsor’s evidence. The Sponsor apparently gave evidence that the Ugandan authorities had been providing some assistance to the Appellants (and perhaps all Somali refugees in Uganda).
5. Following this recitation of the evidence, the judge went on to cite case-law on the issue of dependency and concluded that it need not be of necessity. He cited the decision of the Upper Tribunal in Dauhoo (EEA Regulations – reg 8(2)( [2012] UKUT 79 (IAC) (in fact a decision relating to in-country cases involving extended family members and not the scenario with which the judge was concerned). The four permutations stated in paragraph 10 of Dauhoo were set out :

(i) prior dependency and present dependency;

(ii) prior membership of a household and present membership of household;

(iii) prior dependency and present membership of a household;

(iv) prior membership of a household and present dependency.
6. Paragraphs 24 to 26 of the judge’s decision read as follows:
“24. I am satisfied that it is the fourth of the four ways in which the relevant connection.
25. For all the foregoing reasons I am not satisfied the Appellant is a family member of his Sponsor within the meaning of Regulation 8. It was not in dispute but that he is exercising Treaty rights.
26. Accordingly the Appellant is not entitled to the Residence Card he seeks.”
7. Paragraph 24 ends with a full stop, but is, as it stands, non-sensical.
8. Despite to said in paragraphs 25 and 26, under the subheading of “Notice of Decision” the judge purported to allow the appeals.
9. Perhaps unsurprisingly, the Respondent sought permission to appeal on the basis that there were contradictions on the face of the decision as to whether the judge was intending to allow or dismiss the appeals.
10. In granting permission First-tier Tribunal Judge Barker found that that allegation was arguable. Furthermore, she concluded that the judge’s findings were arguably inadequate.
11. Prior to the hearing, the Appellants’ representatives provided a Rule 24 response in which they sought to argue that notwithstanding the errors in paragraphs 25 and 26, the judge had intended, or was in any event entitled, to have allowed the appeal in light of the acceptance of the Sponsor’s evidence.
12. At the hearing Ms Isherwood relied on the grounds of appeal and the grant of permission and submitted that the decision simply did not make sense and that there were no clear findings on the relevant matters. She urged me to set the judge’s decision aside and remit the appeals to the First-tier Tribunal.
13. Mr De Ruano submitted that in all the circumstances the judge’s decision was adequate and if one were to excise the word “not” in paragraphs 25 and 26 the decision was sustainable. He realistically acknowledged, however, that there were shortcomings within the judge’s decision, particularly in light of the observations made by Judge Barker when granting permission.
14. Notwithstanding the need to exercise appropriate restraint before interfering with a decision of the First-tier Tribunal, I conclude that this particular decision is fatally flawed and cannot stand. There is plainly a direct contradiction between what is said in paragraphs 25, 26 and the Notice of Decision, in which the appeals were purportedly allowed.
15. The difficulty here is that even if one were to delete the word “not” from those two paragraphs, the remainder of the decision is nonetheless flawed. There are virtually no clear findings of fact on the relevant issues in the appeals. There is recitation of the evidence and there are suggestions that the Sponsor’s evidence was to be accepted, but nothing is clearly stated to that effect. Nor are there any finding on the issue of the essential needs of the Appellants. It is right that dependency need not be of necessity, but case-law clearly demonstrates that financial support must go to meet such needs and there was a question mark over this particular issue arising from what was said by the Sponsor in relation to support apparently provided by the Ugandan authorities.
16. In addition, at paragraph 24 the judge stated that it was the fourth of the permutations set out in Dauhoo which he appeared to be relying on in order to find in the Appellants’ favour (leaving aside the obvious contradiction between what was said in paragraphs 25 and 26 on the one hand, and the appeals being “allowed” on the other). The fourth permutation involves prior membership of a household and present dependency. On any view of the evidence, that scenario could not have applied in these cases. It was no part of the Appellants’ case that they had been part of the Sponsor’s household in Somalia or Uganda at a time when he was a Norwegian citizen. Therefore, even if one assumes that there were typographical errors in paragraphs 25 and 26, the legal foundation underlying the judge’s conclusion is simply wrong.
17. This decision cannot, on any view, be saved. The errors were material and the decision must be set aside in its entirety. In my view it is appropriate to remit these appeals to the First-tier Tribunal for a complete rehearing, subject to the single preserved fact that the relationships between the Sponsor and the Appellants are not in dispute. One would hope that these appeals can be relisted in the First-tier Tribunal as soon as possible.
18. I make one final observation. It is unfortunate that the judge’s decision was sent for promulgation and then in fact promulgated without the obvious errors discussed in my decision having been detected. A good deal of time and expense has gone into the onward appeals process to the Upper Tribunal.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision of the First-tier Tribunal.
I remit the appeals to the First-tier Tribunal.
No anonymity direction is made.

Directions to the First-tier Tribunal
1) These appeals are remitted to the First-tier Tribunal to be heard by a judge other than First-tier Tribunal Judge I Howard;

2) The remitted appeals shall be dealt with as a complete rehearing, subject only to the preserved fact that the relationships between the Sponsor and the Appellants are not in dispute;

3) Subject to listings capacity in the First-tier Tribunal, the remitted appeals should be listed for hearing as soon as possible.

Signed H Norton-Taylor Date: 6 May 2022
Upper Tribunal Judge Norton-Taylor