Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/01129/2020

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 31st March 2022
On the 28th April 2022

Before

UPPER TRIBUNAL JUDGE BLUNDELL
DEPUTY UPPER TRIBUNAL JUDGE NAJIB

Between

SADAF GULAB
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr Youssefian, instructed by Adam Bernard Solicitors
For the Respondent: Mr Walker, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. By a decision promulgated on 15 September 2021, the Upper Tribunal determined that Judge of the First-tier Tribunal Kemp MBE (‘Judge Kemp’) had erred in law when dismissing the Appellant’s appeal against the respondent Entry Clearance Officer’s (‘the ECO’) decision to refuse to issue her with an EEA family permit to enter the UK as an extended family member of an EEA national under the Immigration (European Economic Area) Regulations 2016 (‘the 2016 Regulations’).
2. The Upper Tribunal set aside Judge Kemp’s decision in full and directed that the appeal should be retained in the Upper Tribunal so that the decision upon it could be remade afresh.
Background
3. The Appellant is a Pakistani national born on 20 October 1996. Her mother is Sughra Bibi and she has three brothers: Imran Gulab, Mubashir Gulab and Rizwan Gulab. Imran Gulab, lives in the UK with his wife, Oksana Sajapina, a Lithuanian national who entered the UK on 1 February 2013. Ms Sajapina was granted indefinite leave to remain in the UK on 9 August 2019 under the EU Settlement Scheme. It is claimed that Mubashir Gulab and Sughra Bibi also now live in the UK and that Rizwan Gulab remains living in Pakistan with his family.
4. On 15 January 2020 the Appellant applied for an EEA family permit to join her sister-in-law, Ms Sajapina, in the UK. The Appellant claimed that she was dependent upon financial support from Ms Sajapina to meet her essential living needs.
5. The application was refused by the ECO on 30 January 2020. The ECO was not satisfied that Ms Sajapina was a ‘qualified person’ within the meaning of the 2016 Regulations (i.e. that she was exercising Treaty rights in the UK) because the payslips which had been submitted with the application were somewhat dated. Further, the ECO was not satisfied that the Appellant was dependent upon Ms Sajapina and gave the following reasons:
“You claim to be dependent on your sponsor who you also state has been in the UK since the 1 February 2013. As proof of your dependency, you have provided evidence of money transfer statements listing your sponsor and their husband, Imran Gulab, as the sender. However only three of the listed transfer have you as the beneficiary; 28 October 2019, 11 November 2019 and 9 December 2019.
Without evidence that you directly benefited from all of the other transfers or that you reside with any of the other beneficiaries, only these three transfers can be accepted. As this department would expect to see regular money transfers from the date your sponsor entered the UK to present, this does not demonstrate regular and sole dependency on your sponsor and for this reason I cannot be satisfied that you are dependent upon your sponsor as claimed.
Furthermore this department would also expect to see evidence which fully details yours and your family's circumstances. This would include documents showing your income, expenditure and evidence of your financial position which would prove that without the financial support of your sponsor your essential living needs could not be met...”
6. The Appellant appealed to the First-tier Tribunal and elected for a determination on the papers without an oral hearing. By a decision promulgated on 3 December 2020, Judge Kemp dismissed the appeal. Judge Kemp was not satisfied that the Appellant was dependent upon Ms Sajapina.
Resumed Hearing
7. At the hearing before us on 31 March 2022, the Appellant was represented by Mr Youssefian of counsel and the ECO was represented by Mr Walker, Senior Home Office Presenting Officer.
8. We had before us the bundle prepared by the ECO and the documents submitted by the Appellant for the hearing before Judge Kemp. These included the Appellant’s application for an EEA family permit and supporting documents, the ECO’s decision refusing the application and the Appellant’s original Notice of Appeal dated 3 February 2020 and supporting documents. We also had before us a 122-page electronic bundle of documents prepared by the Appellant’s representatives for the resumed hearing. This bundle was, in effect, a consolidated bundle containing most of the key documents that were before Judge Kemp and further additional documents upon which the Appellant wished to rely, including in particular, the witness statement of the Appellant dated 26 March 2022, the witness statement of Ms Sajapina dated 25 March 2022, the Appellant’s bank statements and further money transfer and remittance receipts. We also had a helpful skeleton argument prepared by Mr Youssefian. References to [--] are references to pages in the electronic bundle.
9. Although the appeal was to be heard afresh, Ms Sajapina did not appear before us to give oral evidence. Mr Youssefian had no explanation for her absence and was content for us to proceed with the hearing. The Appellant did not call any other oral evidence and so we proceeded to hear submissions from Mr Youssefian. Having heard Mr Youssefian’s submissions, we indicated to Mr Walker that we did not need to hear from him.
10. At the end of the hearing, we reserved our decision.
11. In reaching our decision we have had regard to all the evidence before us whether that evidence is expressly referred to or not in this decision. We have also had regard to the submissions made by Mr Youssefian.
Legal Framework
12. Insofar as is material, the expression "extended family member" is defined in regulation 8 of the 2016 Regulations as follows:
"Extended family member"
(1) In these Regulations "extended family member" means a person who is not a family member of an EEA national under regulation 7(1)(a) (b) or (c) and who satisfies a condition in paragraph (2)…
(2) The condition in this paragraph is that the person is –
(a) a relative of an EEA national; and
(b) residing in a country other than the United Kingdom and is dependent upon the EEA national or is a member of the EEA national's household and either –
(i) accompanying the EEA national to the United Kingdom or wants to join the EEA national in the United Kingdom, or
(ii) has joined the EEA national in the United Kingdom and continues to be dependent upon the EEA national, or to be a member of the EEA national's household.
13. Regulation 12(4) sets out the circumstances in which an EEA family permit may be issued to an extended family member:
Issue of EEA family permit
12.—...
(4) An entry clearance officer may issue an EEA family permit to an extended family member of an EEA national (the relevant EEA national) who applies for one if—
(a) the relevant EEA national satisfies the condition in paragraph (1)(a);
(b) the extended family member wants to accompany the relevant EEA national to the United Kingdom or to join that EEA national there; and
(c) in all the circumstances, it appears to the entry clearance officer appropriate to issue the EEA family permit.
14. For the purposes of regulation 12(4)(a), the relevant “condition in paragraph (1)(a)” is that the EEA national “is residing in the United Kingdom in accordance with these Regulations...”.
15. An EEA national may reside in the UK in accordance with the 2016 Regulations in one of a number of ways, namely in accordance with regulation 13 (initial right of residence), regulation 14 (extended right of residence), regulation 15 (permanent right of residence), or regulation 16 (derivative right of residence).
16. Regulation 13 provides that an EEA national is entitled to reside in the UK for a period not exceeding three months beginning on the date they first entered the UK.
17. Regulation 14 provides that an EEA national is entitled to reside in the UK on an extended basis for as long as they remain a “qualified person”. Regulation 6 provides that a ‘qualified person” is an EEA national who is in the UK as “a jobseeker”, “a worker”, “a self-employed person”, “a self-sufficient person” or “a student” (i.e. is exercising Treaty rights in the UK).
18. Regulation 15 provides that an EEA national is entitled to reside in the UK on a permanent basis if they have resided in the UK in accordance with the 2016 Regulations for a continuous period of five years.
19. Regulation 16 provides that an EEA national has a “derivative right of residence” in the UK during any period in which they satisfy the conditions in one or more of regulation 16(2) to 16(6). Regulations 16(2) to 16(6) apply, variously, where any of the EEA national’s parents reside in the UK, the EEA national is under the age of 18, or the EEA national is the ‘primary carer’ of a relevant person.
The Issues
20. In order to succeed on this appeal, the Appellant must establish that Ms Sajapina is an EEA national (regulation 8(1)), that Ms Sajapina is residing in the UK in accordance with the 2016 Regulations (regulation 12(4)(a)), that she and Ms Sajapina are ‘relatives’ (regulation 8(2)(a)), that she is dependent upon Ms Sajapina (regulation 8(2)(b)) and that she lives in Pakistan and wishes to join Ms Sajapina in the UK (regulation 8(2)(b)(i)).
21. The ECO accepts that Ms Sajapina is an EEA national, that she and the Appellant are ‘relatives’ and that the Appellant lives in Pakistan and wishes to join Ms Sajapina in the UK. The ECO does not, however, accept that Ms Sajapina is residing in the UK in accordance with the 2016 Regulations or that the Appellant is dependent upon her.
22. The issues in this appeal, therefore, are whether Ms Sajapina is residing in the UK in accordance with the 2016 Regulations and whether the Appellant is dependent upon her.
23. The burden of proof rests on the Appellant in respect of both issues and the standard of proof is the balance of probabilities.
24. Pursuant to section 85(4) of the Nationality, Immigration and Asylum Act 2002, we may consider any matter we think relevant to the substance of the decision, including matters arising after the date of the ECO’s decision.
Findings and Conclusions
Residing in the UK in accordance with the 2016 Regulations
25. Mr Youssefian submitted that Ms Sajapina is residing in the UK in accordance with the 2016 regulations, namely regulation 14, because she is employed by ABS Maintenance Ltd and so is a ‘qualified person’ (i.e. a ‘worker’). That was the sole basis upon which he contended that the sponsor was a ‘qualified person’.
26. At §8 of her witness statement, Ms Sajapina states that she is employed by ABS Maintenance Ltd and earns up to £820 per month. That is the only reference to her employment in the witness statement. As evidence of Ms Sajapina’s employment, the Appellant has produced and relies upon a series of five payslips from ABS Maintenance Ltd [29]-[33]. These payslips cover the period September 2019 to January 2020 and show that Ms Sajapina was earning £7.83 per hour with a net monthly pay of £814.32. We note that this was below the then relevant minimum wage of £8.21 per hour. Whilst the ECO’s decision refers to payslips covering the period June to August 2019, these were not before us. We do not know why they were not included in the various bundles, but we are prepared to accept that they show Ms Sajapina earning the same sums between June to August 2019. However, as Mr Youssefian accepted, there is simply no documentary evidence of Ms Sajapina being employed by ABS Maintenance Ltd or otherwise at any time after January 2020.
27. Mr Youssefian submitted that notwithstanding the absence of documentary evidence, as Judge Kemp had accepted that Ms Sajapina was employed by ABS Maintenance Ltd at the date of the ECO’s decision and Ms Sajapina states in her witness statement that she is employed by ABS Maintenance Ltd, we should find, on balance, that she continues to be employed as claimed.
28. We are unable to do so. No explanation has been provided as to why current payslips, a letter from ABS Maintenance Ltd confirming Ms Sajapina’s continued employment or Ms Sajapina’s bank statements showing regular salary payments have not been produced. If Ms Sajapina continues to be employed as claimed, such evidence would have been easily available or could have easily been obtained. Whilst there is no requirement for corroborative evidence in this jurisdiction, we are entitled to take into account the absence of evidence that would reasonably be expected to be available. The absence of such evidence and the lack of any explanation significantly undermines the bare assertion that Ms Sajapina is employed by ABS Maintenance Ltd and earns up to £820 per month.
29. Further, §8 of Ms Sajapina’s witness statement is wholly lacking in detail. By way of example, she does not say what her role is at ABS Maintenance Ltd, when she commenced employment, how many hours per week she works, why she was earning less than the minimum wage in January 2020 or why, if it is to be accepted that she still earns up to £820 per month and works the same number of hours, she continues to earn less than the minimum wage. When asked, Mr Youssefian was unable to give us any details as to Ms Sajapina’s employment or confirm whether or why she was earning less than the minimum wage.
30. This lack of detail was compounded by the fact that Ms Sajapina did not attend to give oral evidence at the resumed hearing. The evidence at §8 of Ms Sajapina’s witness statement, therefore, not only lacked detail and was uncorroborated but it was also untested in cross-examination. As such, in our view little weight can be attached to it.
31. We are, therefore, not satisfied that Ms Sajapina is employed by ABS Maintenance Ltd as claimed.
32. Mr Youssefian did not seek to claim, nor is there any evidence before us, that Ms Sajapina is otherwise a ‘qualified person’ by reason of being a ‘a jobseeker’, ‘a self-employed person’, ‘a self-sufficient person’ or ‘a student’.
33. Mr Youssefian, quite properly, also did not seek to claim that Ms Sajapina is residing in the UK in accordance with regulations 13, 15 or 16. As Ms Sajapina has been in the UK for a number of years, regulation 13 does not apply. As Ms Sajapina is over the age of 18 and there is no evidence before us that any of her parents has ever lived in the UK or that she is or was, at any stage, the primary carer of a relevant person, regulation 16 does not apply. As regulations 13 and 16 do not apply, the only basis upon which it may have been claimed that regulation 15 applies is if Ms Sajapina had been a ‘qualified person’ under regulation 14 for a continuous period of five years. For the reasons set out earlier, there is no evidence that that is the case. Mr Youssefian also accepted that although Ms Sajapina has been granted indefinite leave to remain in the UK under Appendix EU of the Immigration Rules, that, in itself, did not establish that Ms Sajapina was residing in the UK in accordance with the 2016 Regulations for the purposes of regulation 12(4)(a).
34. It follows that we are not satisfied that Ms Sajapina is residing in the UK in accordance with the 2016 Regulations.
Dependency
35. In Jia v Migrationsverket (case C-1/05), the Court of Justice of the European Union stated as follows:
"35. According to the case-law of the Court, the status of 'dependent' family member is the result of a factual situation characterised by the fact that material support for that family member is provided by the Community national who has exercised his right of free movement or by his spouse...
36. The Court has also held that the status of dependent family member does not presuppose the existence of a right to maintenance, otherwise that status would depend on national legislation, which varies from one State to another... According to the Court, there is no need to determine the reasons for recourse to that support or to raise the question whether the person concerned is able to support himself by taking up paid employment. That interpretation is dictated in particular by the principle according to which the provisions establishing the free movement of workers, which constitute one of the foundations of the Community, must be construed broadly...
43. In those circumstances, the answer to question 2(a) and (b) must be that article 1(1)(d) of Directive 73/148 is to be interpreted to the effect that 'dependent on them' means that members of the family of a Community national established in another member state within the meaning of article 43 EC need the material support of that Community national or his or her spouse in order to meet their essential needs in the state of origin of those family members or the state from which they have come at the time when they apply to join the Community national. Article 6(b) of that Directive must be interpreted as meaning that proof of the need for material support may be adduced by any appropriate means, while a mere undertaking from the Community national or his or her spouse to support the family members concerned need not be regarded as establishing the existence of the family members' situation of real dependence...".
36. In Reyes v Secretary of State for the Home Department (EEA Regs: dependency) [2013] UKUT 314, the Upper Tribunal gave the following guidance:
“19. From the above, we glean four key things. First, the test of dependency is a purely factual test. Second, the Court envisages that questions of dependency must not be reduced to a bare calculation of financial dependency but should be construed broadly to involve a holistic examination of a number of factors, including financial, physical and social conditions, so as to establish whether there is dependence that is genuine. The essential focus has to be on the nature of the relationship concerned and on whether it is one characterised by a situation of dependence based on an examination of all the factual circumstances, bearing in mind the underlying objective of maintaining the unity of the family. It seems to us that the need for a wide-ranging fact-specific approach is indeed enjoined by the Court of Appeal in SM (India): see in particular Sullivan LJ’s observations at [27]-[28]. Third, it is clear from the wording of both Article 2.2 and regulation 7(1) that the test is one of present, not past dependency. Both provisions employ the present tense (Article 2.2(b) and (c) refer to family members who “are dependants” or who are “dependent”; regulation 7(c) refers to “dependent direct relatives...”). Fourth (and this may have relevance to what is understood by present dependency), interpretation of the meaning of the term must be such as not to deprive that provision of its effectiveness.”
37. In the unconnected case of Reyes v Migrationsverket (C-423/12) the Court of Justice of the European Union confirmed that dependency is a question of fact, that the dependency must be genuine, but that if it is found that the family members’ essential needs are met by the material support of an EEA national, there is no need to enquire as to the reasons for the dependency. The court further held that family members could not be required to prove that they have searched for a job in the country of origin in order to be regarded as dependent.
38. In Lim v Entry Clearance Officer Manila [2015] EWCA Civ 1383 Elias LJ, with whom McCombe LJ and Ryder LJ agreed, held that the critical question was whether the family member was in fact in a position to support themselves. The Court of Appeal held that the Malaysian mother-in-law of an EEA national living in the UK was not dependent on him, despite the fact that she received financial support from him - she was financially independent and did not need the additional resources for the purpose of meeting her essential living needs.
39. Having reviewed the decisions of the Court of Justice of the European Union regarding the test for dependency (in particular Reyes v Migrationsverket), Elias LJ stated:
“25. In my judgment, this makes it unambiguously clear that it is not enough simply to show that financial support is in fact provided by the EU citizen to the family member. There are numerous references in these paragraphs which are only consistent with a notion that the family member must need this support from his or her relatives in order to meet his or her basic needs. For example, paragraph 20 refers to the existence of “a situation of real dependence” which must be established; paragraph 22 is even more striking and refers to the need for material support in the state of origin of the descendant “who is not in a position to support himself”; and paragraph 24 requires that financial support must be “necessary” for the putative dependant to support himself in the state of origin...
32. In my judgment, the critical question is whether the claimant is in fact in a position to support himself or not, and Reyes now makes that clear beyond doubt, in my view. That is a simple matter of fact. If he can support himself, there is no dependency, even if he is given financial material support by the EU citizen. Those additional resources are not necessary to enable him to meet his basic needs. If, on the other hand, he cannot support himself from his own resources, the court will not ask why that is the case, save perhaps where there is an abuse of rights. The fact that he chooses not to get a job and become self- supporting is irrelevant...”
40. The following issues fall for consideration, namely whether the Appellant is in need of financial support from Ms Sajapina to meet her essential living needs (i.e. whether she is in a position to support herself or not) and whether Ms Sajapina is, in fact, providing financial support to the Appellant (i.e. whether Ms Sajapina is sending money to Pakistan to or for the benefit of the Appellant).
Is the Appellant in need of financial support from Ms Sajapina
41. In her witness statement, the Appellant states that she is a post-graduate student at SZABIST University and that she is dependent on Ms Sajapina “in all aspects of my life including financially, emotionally, personally and morally”. She further states that ever since Ms Sajapina entered into a relationship with Imran Gulab, she has been providing financial support to the Appellant, her mother and brothers by sending up to £300 per month to Pakistan. The money was mostly sent to the Appellant’s brothers and on some occasions to her mother, because in Pakistani culture financial matters are generally left to male or older members of the family and that as a younger sister she would not be expected to collect and bank money. The money was then shared and used to meet the family’s essential livings needs. She, her mother and ‘brother’ have no other source of income. It appears this is a reference to Mubashir Gulab as she later states at §14 that Rizwan Gulab has “limited income and financial sources”. She is dependent upon money from Ms Sajapina to “live my daily life” and she is unable to manage her “life affairs” without Ms Sajapina’s help.
42. Ms Sajapina repeats the key parts of the Appellant’s account in her witness statement. The Appellant’s brothers, Mubashir Gulab and Rizwan Gulab, and her mother have each provided affidavits confirming that the money they received from Ms Sajapina and “her husband... as remittances” was shared equally with the Appellant.
43. Mr Youssefian submitted that as the Appellant is a 25-year-old student, does not work, has no independent source of income and is a woman in what he described as a “conservative and patriarchal society”, the Appellant cannot support herself and is clearly in need of financial support from Ms Sajapina to meet her essential living needs. He submitted that the Appellant’s mother and brother, Mubashir Gulab, no longer live in Pakistan and that her brother, Rizwan Gulab, has no source of income and cannot support the Appellant. He referred us to the CPIN “Country Policy and Information Note Pakistan: Women fearing gender-based violence Version 4.0 February 2020” which states that “only one out of every five women [in Pakistan] participates in the labour force” and submitted that it would not be out of the ordinary for someone in the Appellant’s position not to work. He also referred to the Appellant’s bank statements and pointed out that the only source of income was inter-bank transfers, not salary. He submitted that as the Appellant’s mother had been granted leave to enter the UK as Ms Sajapina’s dependant, the ECO must have accepted that the Appellant’s mother was in need of financial support from Ms Sajapina to meet her essential living needs. It was difficult to see how the Appellant would not also be in a similar position of need. However, Mr Youssefian accepted that there was no documentary evidence that the Appellant’s mother had, in fact, been granted leave to enter the UK as Ms Sajapina’s dependant or that she was even in the UK. Finally, Mr Youssefian relied on a long history of money transfers and remittances between 2013 and 2021 and submitted that that indicated that the Appellant has never been able to support herself.
44. Whatever the case may have been historically, we must determine whether the Appellant is presently in a position to support herself or not. That means we must consider the amount of money presently required by the Appellant to meet her essential living needs, her sources of income and the money that is otherwise presently available to her.
45. The Appellant has produced a schedule of her family’s monthly expenditure to meet essential living needs [11]. The Appellant claims that her family’s monthly expenditure to meet essential living needs is in the region of 60,000 PKR per month. As it is claimed that the Appellant’s mother and Mubashir Gulab are now living in the UK, we assume by ‘family’ she is referring to Rizwan Gulab and his family. The Appellant’s witness statement does not provide any further details or evidence in support of the expenditure set out in the schedule. No documents have been produced to support the claimed expenditure either. No tenancy agreement has been produced in respect of the property at House No 896, Street No 8, Sector G-14/4, Islamabad. No receipts or bank statements have been produced to show payment of the claimed rent. No utility bills or receipts showing payment for utilities have been produced. Whilst some receipts have been produced in respect of the Appellant’s university fees [62]-[72], these are all historic, the last in time being dated March 2021. These are all documents that would reasonably be expected to be available. No explanation has been provided as why they have not been produced. In the absence of any supporting witness or documentary evidence, little reliance can be placed on the schedule. We are, therefore, left with no clear picture as to the amount of money required by the Appellant to meet her essential living needs.
46. Similarly, we have no clear picture as the Appellant’s sources of income. The Appellant claims that she has no source of income other than money sent to her by Ms Sajapina. However, her bank statements for the period 5 October 2021 to 17 January 2021 [60]-[61] show that on 5 October 2021 she received the sum of 3,000,000 PKR into her bank account. Mr Youssefian accepted that this was equivalent to about £12,500 GBP. The Appellant and Ms Sajapina have not claimed in their witness statements, nor is there any other evidence (e.g. money transfers or remittance receipts) to suggest, that this sum was sent by Ms Sajapina or, for that matter, Imran Gulab. Even if it had been so claimed, and even if we had accepted that Ms Sajapina was employed by ABS Maintenance Ltd, it is difficult to see how, on a total income in the region of £820 per month, she would have had the means to send some £12,500 to the Appellant in October 2021. Mr Youssefian was unable to explain the source of this money or how and why it came to be paid to the Appellant. On the face of the bank statements, therefore, the Appellant appears to have some other source of income which she has chosen not to disclose.
47. Further and perhaps more significantly, the Appellant’s bank statements show that despite further payments in totalling 200,000 PKR and payments out totalling 255,392 PKR, as at 17 January 2022 the Appellant still had in excess of 3,000,000 PKR in her bank account. It has not been claimed, nor have we been provided with any evidence to suggest that this sum is no longer available to the Appellant. It follows that even on the Appellant’s own case that her family’s monthly expenditure to meet essential living needs is in the region of 60,000 PKR per month, at present the Appellant has more than sufficient funds in her bank account to support herself and meet her essential living needs for a period of a little over 4 years.
48. We are, therefore, not satisfied that the Appellant is presently in need of financial support from Ms Sajapina to meet her essential living needs.
Financial support
49. The Appellant relies upon a variety of documents showing a long history of money transfers and remittances between 2013 and 2021 [15]-[25], [73]-[116]. These show that a not inconsiderable sum of money was sent to Pakistan.
50. We have no hesitation in accepting that money has regularly been sent from the UK to the Appellant’s family in Pakistan since 2013 and that despite most of the money transfers and remittances showing the Appellant’s mother or brothers as recipients, the money was sent for the benefit of the ‘family’ and was used collectively by the Appellant and her family towards their day-to-day expenses. We also accept that more recently money has been sent directly to the Appellant.
51. However, as Mr Youssefian accepted, in all but 3 instances all of the money transfers and remittances record Imran Gulab as the sender. There are only 3 individual money transfers in 2017 that record Ms Sajapina as the sender, namely on 3 April 2017, 14 June 2017 and 26 August 2017 [17]. On the face of the documents, therefore, money was being sent to the Appellant and her family in Pakistan by Imran Gulab, not Ms Sajapina.
52. When we raised this with Mr Youssefian, he submitted that as Ms Sajapina and Imran Gulab are married, their money should be treated as a ‘joint pot’ such that we should treat the money transfers and remittances as having been made by Ms Sajapina or jointly by her and Imran Gulab.
53. The difficulty with that submission is that Ms Sajapina does not say in her witness statement or otherwise that the money sent to Pakistan came from a joint bank account or other jointly held fund or funds. To the contrary, at §4 to §9 of her witness statement, Ms Sajapina is at pains to stress that the Appellant is dependent upon her alone to the exclusion of all others. She variously states that she is the Appellant’s “sole sponsor”, that she is the “real decision maker in her life”, that the Appellant is unable to “manage her life affairs without my help and cannot sustain [herself] without my financial support” and “I have been sending money to the Appellant and providing financial support”. There is no suggestion by Ms Sajapina that Imran Gulab has been jointly supporting the Appellant, that they have a joint bank account or that, for simple convenience, she would give money to Imran Gulab to send to Pakistan on her behalf. We have not been provided with bank statements for a joint bank account held by Ms Sajapina and Imran Gulab. We have not been provided with Ms Sajapina’s bank statements to show money being paid to Imran Gulab or some other third party for onward transfer to Pakistan. We do not know if Imran Gulab works or how much he earns. We have not been provided with any bank statements for Imran Gulab showing the source of the money which, on the face of the documents, he was sending to Pakistan. We have not been provided with any explanation from Ms Sajapina or the Appellant as to why all but 3 of the money transfers and remittances record Imran Gulab as the sender. These are documents and explanations that would reasonably be expected to be available and their absence significantly undermines Ms Sajapina’s bare assertion that ‘she’ was sending up to £300 per month to Pakistan.
54. Further, as we are not satisfied that Ms Sajapina has been employed by ABS Maintenance Ltd or otherwise since January 2020 and we have not been provided with any bank statements to show that she has any other source of income, we are not satisfied that Ms Sajapina had, or presently has, the means to provide financial support to the Appellant.
55. Insofar as Imran Gulab was sending money to Pakistan, that would not suffice for the purposes of regulation 8(2)(b). Unlike in the case of ‘family members’ under regulation 7 where an applicant must be dependent upon the EEA national “or” the EEA national’s spouse or civil partner (see regulation 7(i)(b)(ii) and 7(2)(a)), in the case of ‘extended family members’ under regulation 8 an applicant must be dependent upon the EEA national. There is no similar provision providing for dependence on the EEA national’s spouse or civil partner.
56. We are, therefore, not satisfied that Ms Sajapina has been or is presently sending money to Pakistan to or for the benefit of the Appellant. It follows that we are not satisfied that Ms Sajapina is providing financial support to the Appellant.
Other matters
57. In her witness statement, the Appellant states that she is also dependent upon Ms Sajapina “emotionally, personally and morally” and that she is “the real decision maker in my life”. Later, the Appellant states that she is “emotionally dependant on my sister-in-law as she has always supported and motivated me with regards to my studies and career”. Ms Sajapina largely repeats this account in her witness statement. The Appellant and Ms Sajapina do not provide any details as to how or how often they communicate. We note that in the Appellant’s application for an EEA family permit she stated that she keeps in touch with Ms Sajapina by “phone, social media [and] WhatsApp” [48]. However, no printouts or screenshots of any social media, WhatsApp or other form of communication have been produced. Again, this is evidence that would reasonably be expected to be available.
58. In the absence of such evidence, we are unable to gauge the true nature and extent of the personal relationship between the Appellant and Ms Sajapina. It follows that we are not satisfied that the Appellant is dependent upon Ms Sajapina “emotionally, personally and morally” as claimed.
Conclusion
59. For the reasons set out above and having considered all of the evidence and submissions and taking a holistic approach, we are not satisfied on the balance of probabilities that that the Appellant is ‘dependent’ upon Ms Sajapina for the purposes of regulation 8(2)(b).
Conclusion
60. For all the reasons set out above, we are not satisfied that the Appellant is entitled to an EEA family permit and the appeal is, therefore, dismissed.

Notice of Decision
The decision of the FtT having been set aside, we remake the decision on the appeal by dismissing it.
No anonymity direction is made.

Signed S. Najib Date: 26 April 2022

Deputy Upper Tribunal Judge Najib