Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-002830
First-tier Tribunal No: EA/01717/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 29 March 2023

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

BABRUL ANAM
(no anonymity order made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Pipe, instructed by Wildan Legal Solicitors
For the Respondent: Mr F Gazge, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 7 March 2023

DECISION AND REASONS
1. The appellant appeals, with permission, against the decision of the First-tier Tribunal dismissing his appeal against the respondent’s decision refusing to issue him with a family permit under the Immigration (European Economic Area) Regulations 2016 to enter the UK as the extended family member of an EEA national exercising Treaty rights in the UK.
2. The appellant is a national of Bangladesh born on 4 September 1991. He applied on 5 December 2020 for a family permit in order to enter the UK as the extended family member of his brother, a Spanish national exercising Treaty rights in the UK.
3. The appellant’s application was refused on 21 January 2021 on the grounds that the respondent was not satisfied that he was dependent upon the sponsor or that the sponsor was in a position to support him financially. The respondent noted that the appellant claimed to receive £300 a month from the sponsor and had submitted 14 money transfer receipts as evidence of his financial dependence upon his sponsor. The respondent noted, however, that the receipts were all dated in 2000 and considered that they did not show financial support over a prolonged period. The respondent noted further that the appellant had not provided evidence of some of his essential living needs, such as his accommodation circumstances, and considered that there was insufficient evidence of his circumstances so as to establish his dependency upon his sponsor. In addition, the respondent noted that the evidence submitted for the sponsor showed that his net monthly salary was £1,625.33, but that the appellant had also applied with his two siblings who also claimed to be dependent upon the same sponsor. The respondent was not satisfied that it was sustainable for the sponsor to financially support the appellant and his siblings as well as himself and considered there to be a risk that the appellant may therefore become a burden on the public funds system in the UK. The respondent was therefore not satisfied that the appellant was dependent upon the sponsor in accordance with regulation 8 of the EEA Regulations and refused his application because the requirements of regulation 12 were not met.
4. The appellant appealed against that decision. The matter initially came before First-tier Tribunal Judge Reed on 8 November 2021 and the sponsor appeared for the appellant. There was no attendance by the respondent. The appellant had provided a number of documents, but not within a bundle and not paginated or even in chronological order. Judge Reed adjourned the hearing to enable the appellant to produce a paginated bundle and for the respondent to review the case and the documents.
5. The appeal was then heard by First-tier Tribunal Judge Juss on 6 January 2022. The appellant was not legally represented at the hearing and neither was the respondent. The appellant had, by then, produced a paginated bundle of documents. Judge Juss was, however, not satisfied that the evidence showed that the appellant was financially dependent on the sponsor for his essential needs. He did not consider that the receipts which had been submitted constituted substantial and real evidence of support for the appellant’s essential needs. He dismissed the appeal in a decision promulgated on 28 February 2022.
6. The appellant sought permission to appeal to the Upper Tribunal on the grounds that the judge had failed to take into account a number of key documents including remittance receipts for dates in years other than 2000; that he had failed to consider the explanation given by the sponsor for his inability to provide further documentary evidence, that he had failed to consider information provided by the sponsor about the appellant’s accommodation; and that he had failed to consider the claim that the appellant was a member of the sponsor’s household in Bangladesh.
7. Permission was refused in the First-tier Tribunal but was subsequently granted in the Upper Tribunal upon a renewed application.
8. At the hearing before me Mr Gazge conceded that Judge Juss’s decision had to be set aside. It was clear that the appellant’s appeal bundle had been before the judge at the time of the hearing and it was also clear that the judge had failed to consider it or to engage with the evidence within it. I note that Judge Juss simply recited the refusal decision as the basis for his own decision and he plainly had no regard to the further evidence which had been provided by the appellant. Mr Gazge agreed with Mr Pipe that the case ought to be remitted to the First-tier Tribunal to be heard afresh, given the extent of the fact-finding which was necessary to re-make the decision. Mr Pipe said that the sponsor would wish to give further oral evidence and, in the circumstances, it seems to me that the most appropriate course would be for a remittal for a de novo hearing, as requested by the parties.

Notice of Decision
9. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. The decision is set aside. The appeal is remitted to the First-tier Tribunal to be dealt with afresh, with no findings preserved, pursuant to section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Statement 7.2(b), before any judge aside from Judge Juss.

Signed: S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber

7 March 2023