Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers:
UI-2021-001379 (EA/01326/2021)
UI-2021-001378 (EA/01089/2021)

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 March 2022
On the 23rd June 2022

Before

UPPER TRIBUNAL JUDGE OWENS
DEPUTY UPPER TRIBUNAL JUDGE B C KEITH

Between

MD Khairul Alam
Toshiba Akter
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

ENTRY CLEARANCE OFFICER – UKLPA (LIVERPOOL)
Respondent

Representation:

For the Appellants: Unrepresented
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellants appeal against a decision of First-tier Tribunal Judge R Hussain sent on 13 October 2021 dismissing their appeals against decisions dated 30 December 2020 refusing their applications for EEA family permits.
2. The appellants did not attend the error of law hearing and did not provide a reason for their absence. We were satisfied that they had been notified of the date and place of the hearing. Prior to the hearing, the respondent had provided a Rule 24 response indicating that she did not intend to oppose the appeals and on this basis, given that all parties were essentially of the same view that the decision should be set aside in its entirety, we found that it was in the interests of justice to proceed with the appeal hearing in the absence of the appellants in accordance with rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
Background
3. The appellants are siblings, both citizens of Bangladesh. On 11 December 2020 they both applied for EEA family permits as extended family members of Mrs Ounve Sabia Gazi Begum, a Spanish national who is married to their brother Mr Mohammed Samrat Sagor Hossen. The appellants claim to be dependent on their EEA sponsor and in need of support for their essential living needs.
4. The applications were refused because the respondent did not accept that the appellants were dependent on their sponsor because the money remittance receipts provided in support of the application did not name the beneficiary and the appellants failed to provide details of their own financial circumstances in Bangladesh.
The Decision of the First-tier Tribunal
5. At the hearing the judge heard evidence from the EEA sponsor and also had regard to the skeleton argument and submissions by both representatives. The judge had regard to the case of Moneke (EEA - OFMs) Nigeria [2011] UKUT 00341(IAC). The central issue in the appeals was whether or not the appellants are dependent on the sponsor for at least part of their essential living needs.
6. The judge found at [13] that the appellants are not financially dependent on the EEA sponsor because the sender of the remittances between 2015 and 2019 was Mr Hossen, the EEA sponsor’s husband. The judge took into account that there were only three money remittance receipts prior to the application showing the EEA sponsor as the sender (as opposed to Mr Hossen) and that further transactions postdated the applications. The judge was satisfied that any money remittances purportedly sent by the EEA sponsor were in fact sent by, at the direction and instigation of the sponsor’s husband.
7. The judge found that the appellants had failed to adequately demonstrate that the funds sent to them are required to meet their essential living needs. In particular, the judge took into account that no satisfactory explanation was provided as to why neither appellant is unable to work to support themselves. The judge did not accept that the appellants would have gone on holiday to India in August 2019 if they were dependent on their EEA sponsor to meet their essential living needs.
The grounds of appeal
Ground 1: Misapplication of the relevant law
8. The judge did not refer to the principles in Lim [2015] EWCA Civ 1383. This authority allows for “dependency of choice”. The dependent does not have to demonstrate that they are unable to obtain an income from employment. The relevant test is whether there is dependency as a question of fact to meet some or all of their essential living needs.
9. The judge erred in law when finding that the support came from the EEA sponsor’s husband and not from the EEA sponsor. The EEA sponsor married her husband on 28 August 2018 and they were a family unit from that date. Any joint support to the appellants in the EEA sponsor’s husband’s name was in fact family support and that was the evidence of the sponsor.
10. The judge fell into speculation when he observed that any remittances sent from the sponsor to the appellants are on the direction of her husband. The sponsor and her husband are a family and as a family they have decided to sponsor the appellants. The money remittances which were sent in the sponsor’s name are in her name. The sponsor gave consistent evidence at the hearing to confirm her financial support. It was not open to the judge to speculate and find that this support is artificial and directed by her husband.
11. It was also an error of law for the judge to find that the remittances which postdated the application are of less value. The question is one of fact and the case law makes it clear that there is a need for a holistic approach.
12. The judge had failed to refer to the fact that the appellants only had to demonstrate that they are partially dependent for at least some of their essential living needs. At [15] to [16] the judge appears to have proceeded on the basis that they needed to be dependent for their entire essential living needs.
Ground 2: Giving weight to irrelevant considerations
13. The judge at [15] took into account that no satisfactory explanation was provided as to why the appellants were unable to work to support themselves. Firstly, the sponsor attempted to explain that the appellants have been unsuccessfully looking for work and the judge did not take this evidence into consideration or explain why he rejected it. Secondly, and more significantly, the case law cited above which was referred to in the skeleton argument makes it plain that it is not a requirement for the appellants to work. Dependency of choice is sufficient as long as it is not an abuse. This irrelevant consideration played an important part in the judge’s assessment that the appellants are not dependent on the sponsor.
14. Further, it was illogical of the judge to find that the appellants cannot be dependent on the sponsor or her husband for their essential living needs because they went on holiday. The EEA sponsor’s evidence was that her husband paid for the appellant’s holiday. That is a reasonable and plausible position.
Permission to Appeal
15. Permission to appeal was granted by Judge Feeney of the First-tier Tribunal on 14 January 2022 on the basis that it was unclear from the decision whether the judge was aware that it was not necessary to show that all essential needs were being met by the sponsor and that it was sufficient to show that some of the essential needs had been met. The judge also arguably erred in attaching no weight to the remittances sent by the EEA sponsor’s husband, given that he and the EEA sponsor form a family unit.
Rule 24 Response
16. On 23 February 2022 the respondent provided a Rule 24 response. This states:
“The respondent does not oppose the appellants’ applications for permission to appeal and invites the Tribunal to determine the appeals with a de novo hearing in the First Tier Tribunal to consider whether the appellants are dependent for their essential needs on their EEA sponsor.”
The Hearing
17. At the hearing Mr Tufan for the Secretary of State confirmed that the appeal has been conceded. He referred to the case of Lim [2015] EWCA Civ 1383 and the test confirmed in Reyes v Migrationsverkar [2013] EUECJ C-423/12. The question of dependency is a simple question of fact and it matters not the reasons for the dependency. Even had the appellants chosen not to take up employment, this is an immaterial factor when assessing dependency and is an error. Secondly, the judge failed to appreciate that the appellants did not need to demonstrate that they were dependent on the EEA sponsor for all of their essential living needs. Mr Tufan conceded that the errors are material to the outcome of the appeal.
18. We see no reason to go behind this concession and on that basis, we are satisfied that there is a material error of law in the decision such that the decision cannot stand and should be set aside in its entirety.
Decision
19. The decision of the First-tier Tribunal did involve the making of an error of law.
20. The decision is set aside in its entirety with no findings preserved.
21. The appeals are remitted to the First-tier Tribunal for a de novo hearing before a judge other than Judge R Hussain.

R J Owens
Upper Tribunal Judge Owens 22 April 2022