Tribunal decisions

The decision

IAC-AH-KEW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: EA/01344/2015
EA/01518/2015
EA/01520/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 5th January 2017
On 23 January 2017

Before

DEPUTY upper tribunal judge ROBERTS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

MARGARET KOROMA (FIRST respondent)
HAJARATU RADIATU KOROMA (SECOND respondent)
Gibrill KOROMA (THIRD respondent)
(ANONYMITY DIRECTION not made)

Respondents
Representation:

For the Appellant: Mrs Pettersen, Senior Home Office Presenting Officer
For the Respondents: Mr Hussain, Counsel

DECISION AND REASONS

1. The Secretary of State appeals with permission against the First-tier Tribunal (Judge Robson) which in a decision promulgated on 8th August 2016 allowed the appeals of the Respondents against the Secretary of State's refusal to issue them with permanent residence cards as dependent family members of an EEA national exercising treaty rights.
2. For the sake of clarity throughout this decision I shall refer to the Secretary of State as "the Respondent" and to Margaret Koroma, Hajaratu Koroma and Gibrill Koroma as "the Appellants," reflecting their respective positions before the First-tier Tribunal. I also set out here that originally before the First-tier Tribunal there was a Fourth Appellant Isatha Koroma, but there is no challenge to the decision in respect of her appeal.
Background
3. The Appellants are all citizens of Sierra Leone. They are all adults and were all aged over 21 years on 26th April 2015 when they made application for permanent residence cards as dependent family members of an EEA national.
4. The Appellants are siblings and are the natural children of Frank Koroma their father. Frank Koroma is married to Zeinab Koroma who is an Austrian national exercising treaty rights in the UK.
5. In 1994 Frank Koroma entered into a traditional marriage with Zeinab Koroma. Zeinab Koroma then travelled to Austria in January 2002 and subsequently acquired Austrian citizenship. Zeinab and Frank Koroma then underwent a church wedding ceremony in January 2004 and in January 2005 Frank Koroma joined his wife Zeinab as an EEA family member.
6. The three Appellants (together with another sibling) travelled to Austria and joined their father and step-mother as dependent EEA family members.
7. In September 2009 the Appellants arrived in the UK with their father and step mother and applied for residence cards. Residence cards were granted to the Appellants to expire on 22nd September 2015.
8. On 26th April 2015 the Appellants applied for permanent residence cards on the basis of five years' residence in the UK as the dependants of their EEA national step-mother. The Respondent refused these applications under Regulation 7 of the 2006 EEA Regulations and it is this refusal which forms the basis of the present appeals.
9. The issue in each case, is one of dependency. In short the Respondent was not satisfied that any of the three Appellants could show dependency within the meaning of the EEA Regulation, for a period of five continuous years.
First-tier Tribunal
10. When their appeals came before the First-tier Tribunal, Judge Robson took into account the documentary evidence set out in the Respondent's bundle and also took oral evidence from each of the Appellants in turn. He also heard oral evidence from Zeinab and Frank Koroma.
11. He then made findings at [102] to [119].
12. Before making his findings the judge noted that he had been directed to two cases, Dauhoo (EEA Regulations - Regulation 8(2)) Mauritius [2012] UKUT 79 and Moneke (EEA - OFMs) Nigeria [2011] UKUT 00341 (Paragraphs [95] and [96] of his decision).
13. Both of those cases deal with the situation of extended family members. That is not the position in the present appeals, all three Appellants are accepted as direct family members and it is hard to see what point is being made by the introduction of those cases. I am satisfied that this has contributed to an erroneous approach being taken by the judge.
14. The issue before Judge Robson was one of dependency and whether dependency could be established over a continuous five year period. The dependency had to be shown to be one of necessity within the EEA Regulations. I find that the judge has failed to adequately deal with what is the central issue in these appeals, no doubt because he has misunderstood the position and focused on dealing with the Appellants as extended family members rather than direct family members.
15. So far as the First Appellant is concerned the judge's finding on dependency appears to be confined to three abbreviated sentences which simply concludes as follows
"She therefore had demonstrated some financial dependency on her parents."
So far as the Second Appellant is concerned the judge's abbreviated findings seem to amount to a conclusion that she is still very much dependent on her parents even though she has a partner Mark with whom she spends most nights, and he provides some financial support for her. There is no analysis of why in these circumstances she is still very much dependent on her parents.
16. So far as the Third Appellant is concerned the judge makes a finding that he is in full-time employment and has a partner but that he regularly sees his family and that he is very much financially dependent on his parents. Again this misses the central issue of explaining why someone, an adult, in employment with a partner is financially dependent upon his parents.
17. Mrs Pettersen submitted that the judge had not assessed the question of dependency in the round and had not engaged in the task of assessing whether the dependency is of necessity. There is no engagement with the question of why the Appellants were unable to provide for their own essential needs at a time when they lived in their own properties and held down jobs. It is essential that these points are covered. I agree with those submissions.
18. Despite Mr Hussain's argument that the findings of the First-tier Tribunal are sustainable and that the Respondent's application amounts to no more than a disagreement, I find otherwise. The FtT's decision lacks clear and proper findings and reasoning on the central issues and this amounts to a material error. I therefore set aside the decision in its entirety.
19. Both representatives were of the view that should I find an error of law which was due to lack of proper reasoning, then the only appropriate course would be to remit this matter to the First-tier Tribunal for full rehearing and for fresh findings of fact to be made. I agree with that course.

Notice of Decision

The decision of the First-tier Tribunal is hereby set aside for material error. The matter is remitted to that Tribunal (not Judge Robson) for a full hearing de novo, with no findings of fact being preserved.

No anonymity direction is made.

Signed C E Roberts Date 21 January 2017

Deputy Upper Tribunal Judge Roberts