Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: EA/01925/2020
EA/01939/2020
EA/01940/2020

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 4 May 2022
On the 21 July 2022

Before

UPPER TRIBUNAL JUDGE PITT

Between

miss Kulsum Sheikh (first Appellant)
miss Habiba Sheikh (second Appellant)
mr Mojibul Sheikh (third Appellant)
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:

For the Appellants: Mr P Georget, instructed by Tower Hamlets Law Centre
For the Respondent: Mr T Lindsay, Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against the decision issued on 19 March 2021 of First-tier Tribunal Judge Herlihy which refused the appellants’ applications for a family permit recognising them as family members of an EEA national.
2. The first appellant was born on 19 May 1999. The second appellant was born on 19 December 2003. The third appellant was born on 5 March 2001. The appellants are siblings. They are all nationals of Bangladesh.
3. The appellants applied for a family permit showing that they were the Extended Family Members (EFMs) of their brother, Mr Nezamul Sheikh, as defined in Regulation 8 of the Immigration (European Economic Area) Regulations 2016 (the EEA Regulations). It is not disputed that Mr Sheikh is a national of Italy and is exercising Treaty rights in the UK.
4. The appellants maintained that they were EFMs as they were dependent on the sponsor for their essential needs from March 2019 onwards. Their applications for a family permit on that basis were refused on 31 January 2020 and 2 February 2020. The refusal maintained that Habiba Sheikh and Mojibul Sheikh were not related to the sponsor as claimed. It was also found that there was insufficient evidence of financial dependency on the sponsor.
5. The appellants appealed the decision of the Entry Clearance Officer to the First-tier Tribunal. By the time of the appeal before Judge Herlihy, the appellants had provided DNA evidence which showed that Habiba Sheikh and Mojibul Sheikh were half-siblings of the sponsor.
6. Prior to the First-tier Tribunal hearing, the respondent provided a Review which set out what the respondent considered to be the outstanding issues. The respondent accepted in the Review that Habiba Sheikh and Mojibul Sheikh were half-siblings of the sponsor. The respondent continued to maintain that the evidence did not show that the appellants were financially dependent on the sponsor. There was insufficient evidence that they were dependent on him for their essential needs and they had not set out sufficiently clearly their financial circumstances in Bangladesh. The respondent accepted that some money transfer receipts had been provided but in isolation these did not confirm financial dependency. The respondent also maintained in the Review that it was not sustainable for the sponsor to support the appellants where he also supported his wife and children and parents-in-law in the UK and that his income included Working and Child Tax Credits.
7. In the decision issued on 19 March 2021, Judge Herlihy did not find that the appellants were EFMs. The reasons for this conclusion are set out in paragraphs 6.1 to 6.15 of the decision. The grounds challenge many aspects of these findings but I concentrate below on what appeared to me to be the most cogent challenges.
8. Paragraphs 6.3 and 6.4 of the First-tier Tribunal decision addressed the issue of the second and third appellants being half-siblings of the sponsor. It was accepted that as half-siblings they came within the definition of EFMs. The judge found that the sponsor lacked credibility, however, as his evidence (see paragraph 5.4) was that, notwithstanding the DNA evidence, it was his understanding that they were his full siblings. He could not explain why the DNA evidence showed otherwise. He had not been in Bangladesh when these two siblings were born. The judge also considered the birth certificates for the appellants and the sponsor in paragraph 6.4 and found that these were unreliable documents.
9. It did not appear to me that the Judge took a correct approach to the evidence concerning the identities of the second and third appellants and their relationship to the sponsor. By the time of the hearing it was accepted by the respondent that they were the half-siblings of the sponsor. The sponsor’s evidence provided an explanation as to why he considered them to be his full siblings albeit he accepted that the DNA showed them to be half-siblings. He said he did not know if the younger appellants had the same mother and that he had not been present in Bangladesh when they were born. His evidence is not reflected accurately in paragraphs 6.3 or 6.4 which refer only to the sponsor claiming that the younger appellants were his full siblings. The perceived shortcomings in the birth certificates was not raised as an outstanding issue in the respondent’s Review. Nothing indicates that the sponsor was asked about them at the hearing. It is not clear how or why the finding that they were not reliable featured in the First-tier Tribunal decision when it remained undisputed that the second and third appellant’s met the relationship requirements for EFMs.
10. In paragraph 6.5 the First-tier Tribunal drew an adverse inference from the death certificates provided by the appellants for their parents and an older brother who had supported them financially prior to the sponsor doing so. Again, these documents were not stated to be disputed by the respondent in the Review and nothing indicates that the sponsor or his legal representative were asked to address any concerns the judge had about them. Again, it is not clear how or why the finding that they were not reliable featured in the First-tier Tribunal decision when it remained undisputed that the second and third appellant’s met the relationship requirements for EFMs.
11. In paragraph 6.6 the judge drew an adverse inference from the sponsor not providing evidence of support for the appellants prior to 4 August 2019. The appellants and the sponsor were consistent in their evidence that the appellants were supported up until 3 March 2019 either by their parents or by another brother who had died in March 2019. It was only after that that the sponsor had begun to provide them with financial support for their essential needs. The appellants were required to provide evidence of financial dependence from March 2019 onwards, therefore. This was again not a matter relied upon by the respondent against the appellants.
12. In paragraph 6.7 the First-tier Tribunal found that the money transfer receipts showed that a significantly larger amount of money was sent to the appellants than that claimed by the sponsor was necessary for their essential needs. The respondent did not dispute that the judge miscalculated the extent of the discrepancy, taking the period over which the money transfers were sent as 10 months rather than 14 months.
13. The judge also reached an adverse finding in paragraph 6.11 concerning assistance provided to the family by Mr Md Ismail, a friend of the sponsor. Mr Ismail provided a statement in support of the appeal. His evidence was consistent with that of the sponsor. The sponsor would save up smaller cash sums into a “bundle” of money to send to the appellants. While they were waiting for him to save up a large enough sum to send over, Mr Ismail would lend the appellants some money and they would pay him back once a “bundle” of funding was sent by the sponsor. The Judge found that Mr Ismail’s evidence was “unsatisfactory” because it was written in English, was unsigned and the appellants did not refer to his involvement in their statements. Firstly, it was not clear why a national of Bangladesh, where English is commonly spoken, should not provide a statement in English. Secondly, the of Mr Ismail was signed; see page 56 of the appellants’ bundle. Further, the appellants’ statements refer to having to “borrow money from people” which they then had to pay back. This potentially did refer to Mr Ismail’s involvement but nothing shows that this evidence was considered by the First-tier Tribunal when making the findings on whether Mr Ismail loaned money to the appellants. concerning Mr Ismail.
14. At paragraph 6.12 the judge found that it was not credible that the sponsor would be able to send the money set out in the money transfer documents and as claimed where he also had to support his wife and three children and his parents-in-law. As argued for the appellants, it remains the case that the money transfer documents do show large amounts of money being sent to the appellants by the sponsor. Further, the sponsor provided a breakdown of his finances (see page 169 of the appellant’s bundle) but this does not appear to have featured in the First-tier Tribunal’s assessment of this issue.
15. In paragraph 6.13 and 6.14 the judge required “objective” evidence to support the appellants’ claimed expenses and outgoings. There was evidence from the appellants as to their essential needs in their witness statements, however, which, notwithstanding it was not "objective" remained evidence that had to be taken into account.
16. Taken individually these matters may not have amounted to errors of law requiring the decision to be set aside but, cumulatively, I was satisfied that they were sufficient to indicate that the decision of the First-tier Tribunal disclosed error and should be set aside to be remade.
17. Where the remaking of the appeal requires a de novo holistic assessment of the appellants financial dependency on the sponsor for their essential needs, it was my view that it was appropriate for this matter to be remitted to the First-tier Tribunal for remaking.
Decision
The decision of the First-tier Tribunal discloses an error on a point of law and is set aside to be remade in the First-tier Tribunal.

Signed: S Pitt Date: 11 July 2022
Upper Tribunal Judge Pitt