Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-001304
EA/01680/2020

THE IMMIGRATION ACTS

Heard at FIELD HOUSE
Decision & Reasons Promulgated
On the 16th March 2022
On the 3rd May 2022

Before

UPPER TRIBUNAL JUDGE OWENS
AND
DEPUTY UPPER TRIBUNAL JUDGE G A BLACK

Between

mr luqman AKHTAR
(Anonymity Order Not Made)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:

For the Appellant: Mr Khan, Counsel instructed by Lincolns Solicitors
For the Respondent: Mr T Lindsay, Senior Home Office Presenting Officer

ERROR OF LAW DECISION AND REASONS

1. This is an error of law decision. The appellant appeals against the decision of the First-tier Tribunal (Judge R.A. Singer)(“FTT”) promulgated on 7th October 2021 dismissing his appeal against the refusal of his application for a family residence permit as an extended family member under Regulation 8 Immigration (European Economic Area) Regulations 2016 (“EEA Regs”).

Background
2. The appellant is a citizen of Pakistan. He claimed that he and family members were dependent on his brother RA and his sister-in-law, an EEA national exercising Treaty Rights. There was documentary evidence of monetary transfers made between the parties over a period of years from 2018. The issue for the FTT was whether or not the appellant had established dependency by showing that the funds were for his essential needs under Regulation 8(2).

First-tier decision
3. The FTT found that the parties were related as claimed, that the EEA national sponsor was exercising Treaty rights and that from 2018 substantial regular remittances were sent to the appellant in Pakistan [29] & [33]. The FTT calculated that the sponsor transferred on average £2,024 per month over a period of 23 months [35]. It was common ground that the remittances matched the evidence in the bank statements. The FTT considered credibility in its assessment of the evidence as to the genuineness of the dependency upon the sponsor to meet the Appellant’s essential needs [26]

4. The FTT found that there was no witness statement or other evidence to show how the funds met the appellant’s essential needs. The FTT found that a tenancy agreement for the property where it was claimed that the appellant and his family lived was not reliable evidence. The FTT found that the appellant’s brother RA had not provided his correct address on the agreement and thus found no reliable evidence that the appellant lived there nor that the rent was paid by his brother RA [38]. The FTT found that it would have been reasonable for the appellant’s elder brother S (to whom no reference had been made until the hearing) who was employed, and for the appellant to have provided witness statements.

5. At [41] the FTT found no evidence from the appellant of his living expenses or his personal/financial circumstances, or any evidence of bills for water, electric and other utilities which could have easily been obtained and which harmed the overall credibility. The FTT quoted the assertion made in the A7 form that the appellant was financially supported by his brother RA and his sister in law and was given £400 per month. The FTT observed that no such corroborative evidence was provided and which the respondent had identified as an issue to be addressed in the reasons for refusal [42].

6. The FTT considered that the funds of £2,024 were substantially in excess of the £400 per month that the appellant stated that he received. The FTT considered explanations for this discrepancy and concluded that “remitting such large amounts, without clear explanation with the figures broken down as to how this money was needed and spent, harms the overall credibility of the assertion that the appellant is genuinely dependent upon the sponsor to meet his essential needs.[43]” In conclusion the FTT acknowledged that a great deal of money was sent, the FTT did not accept that the siblings were unemployed as claimed, nor that S had no role in providing financially for the appellant and his family.

Grounds of appeal
7. In grounds of appeal the appellant argued that the FTT erred in miscalculating the average sums sent to the appellant. For the period October 2018 to August 2021 the FTT divided by 23 rather than 35 months. The correct figure for the average monthly remittance was £484.82 contrasting with the figure as found by the FTT as £2,024.

8. The miscalculation tainted the FTT’s consideration of the evidence and credibility assessment.

9. The FTT misapplied the law by taking into account that the appellant may have been provided funds by his brother, when in law an applicant can be considered dependent even if he also receives financial support or income elsewhere.

10. The FTT heard oral evidence from the appellant’s brother that his essential needs were met from the remittances including accommodation, gas, food and college fees [10].

Permission to appeal
11. Permission to appeal to the Upper Tribunal (UT) was granted by FTJ Grey who noted that the FTT made adverse credibility findings based on the finding of discrepancy in the sums remitted. The mistake of fact was arguably material to the FTT’s reasoning and which amounted to an error in law.

Rule 24 Response
12. The respondent submitted that the FTT directed itself appropriately. The error in miscalculation was not material. The grounds do not challenge the findings made by the FTT at [38-42] where the FTT found that the appellant was not living at the property and not genuinely dependent on the sponsor.

Submissions
13. Both representatives made submissions which we have taken into account and are set out in the record of proceedings. It was common ground that the FTT erred in fact by miscalculating the average remittances over the specified period of time. Contrary to the Rule 24 response Mr Lindsay further conceded that the error had impacted on the assessment of credibility findings which could not be relied on, however, he argued that the decision was nevertheless sustainable in light of the FTT’s findings and conclusions that there was an absence of evidence as to the appellant’s living expenditure and financial circumstances in relation to meeting essential needs [41-42].

14. Mr Khan submitted that there was sufficient evidence before the Tribunal to re make the decision in the appellant’s favour relying on the oral evidence of the appellant’s brother RA and the content of Form A7 with reference to the Respondent’s guidance in respect of dependency and essential needs, failing which the matter should be remitted to the First tier Tribunal for hearing de novo.

Discussion and conclusion
15. The key issue for the FTT was the genuineness of the dependency to meet the appellant’s essential needs. There was no dispute that the FTT erred in fact in miscalculating the average monthly remittances. The question for this Tribunal was materiality. Mr Lindsay conceded that the error had infected the FTT’s findings as to credibility and thus no reliance could be placed on the findings as to the tenancy agreement or the appellant’s brothers. If we accept that position we are left with the findings made by the FTT at [41] and need to consider what impact the findings of the discrepancy and substantial sums had on the FTT’s decision. In our view the FTT did consider the lack of reliable evidence from the appellant as to his financial circumstances to be significant and placed weight on the same, but we also take the view that in reaching a decision the FTT placed weight on the fact that there were substantial remittances for which there was no explanation and a discrepancy as between the amount of remittance as found by the FTT and as stated by the appellant. We are just persuaded that it is not possible to sever the findings made as to the lack of evidence of essential needs from the findings made focussing on the discrepancy and the significance of the large sums. In the event that the FTT had not made the miscalculation it could have been open to the FTT to have found the appellant credible at least in light of the consistent evidence as to the amount of the remittances.

16. Accordingly we are satisfied that there was a mistake of fact that amounted to a material error of law disclosed in the decision which shall be set aside. Given the significant number of new factual findings that need to be made and we are of the view that the appeal should be remitted to the First-tier Tribunal.

Decision
17. The decision of the First-tier Tribunal involved the making of an error on a point of law.

18. The decision is set aside in its entirety. No findings are preserved.

19. The appeal remitted to the First -tier Tribunal for hearing de novo in front of a judge other than Judge Singer.

Signed Date 23.3.2022

GABlack

GA Black
Deputy Upper Tribunal Judge