Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: EA/01979/2016
EA/01983/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 March 2017
On 9 March 2017

Before

UPPER TRIBUNAL JUDGE WARR

Between

Secretary of State
Appellant
and
AKWASI AFRIFA ANSAH
NANA GIYASI ANSAH
(NO ANONYMITY DIRECTION)
Respondent

Representation:
For the Appellant: Mr P Nath, Presenting Officer
For the Respondent: Mr M Rana, of counsel, instructed by Clapham Law LLP

DECISION AND REASONS
1. This is the appeal of the Secretary of State but I will refer to the original appellants who are citizens of Ghana born on 10 January 1977 and 2 March 1969 respectively as the appellants herein.
2. The appellants claim to be dependents of a German national, Janet Begel, their cousin. An appeal had been determined in their favour on 5 July 2010 and in that appeal the immigration judge found that they were indeed Ms Begel’s cousins and were dependent on her. Ms Begel had financially supported the appellants who were then in Ghana while she was living and working in Germany. In 2002 the appellants went to live with her in Germany. In 2005 Ms Begel came to the UK where she has lived and worked since. The appellants then came to live with her in the UK.
3. Following the immigration judge’s decision the Secretary of State granted both appellants EEA residence cards confirming that they were extended family members of Ms Begel.
4. On 9 August 2015 the appellants applied for permanent residence cards on the basis that they had both completed 5 years’ residence in the UK as extended family members of Ms Begel who had been resident and exercising Treaty rights in the UK throughout that period.
5. On 25 January 2016 both applications were refused as the Secretary of State considered there was inadequate evidence that they were financially dependent on Ms Begel or residing with her throughout the relevant period or that they had been dependent upon her or residing with her prior to entering the UK or dependent upon her or residing with after entering the UK.
6. The appellant’s appealed and their appeals came before a First-tier Judge on 17 May 2016. The appeal was determined on the papers. The judge applied the case of Devaseelan [2002] UKIAT 00702 and found there was nothing to lead him to depart from the previous findings that had been made. He was satisfied on the balance of probabilities that the appellants had been financially dependent upon or residing with Ms Begel for 5 years prior to the present application. Having referred to the witness statements that had been lodged by the appellants and by Ms Begel and having taken into account the documentary evidence the judge found that the evidence was overwhelming that Ms Begel had been resident and exercising treaty rights in the UK throughout the relevant period and that the documentary material established on the balance of probabilities that the appellants and Ms Begel had been living together in Ms Begel’s household for at least 6 years prior to the date of application.
7. Accordingly the judge allowed the appeal.
8. The Secretary of State applied for permission to appeal arguing that the First-tier Judge had made a material error of law on the basis that the judge had not set out the evidence and properly explained that such evidence demonstrated that the appellants were dependent on the EEA national sponsor. While there was reference to witness statements and other evidence as set out at paragraphs 24 and 25 of the determination this did not reflect that there was actual dependency or membership of the same household. The decision failed to determine properly whether there was dependency or membership of the same household.
9. On 27 January 2017 a First-tier Judge granted permission. She stated, referring to Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC):
“Notwithstanding the complaints of the respondent there is an arguable error of law in this decision as, in accordance with the guidance in Sala, there was no jurisdiction for the judge to consider the appeal.”
10. In Sala the Tribunal decided that there no statutory right of appeal against the decision of the Secretary of State not to grant a Residence Card to a person claiming to be an Extended Family Member.
11. Mr Rana distinguished Sala in that the appellants had been issued with residence cards and were applying for permanent residence and referred to the Immigration (European Economic Area) Regulations 2006 in particular rule 7(3) which he submitted meant that the appellants were to be considered as family members. He referred to paragraph 79 of Sala. He submitted that the grounds were merely a factual dispute and there was no perversity in the determination. The judge had applied Devaseelan. He had referred to the witness statements. The appellants could succeed either on the basis of residency or dependency or a combination of both.
12. Mr Nath agreed that Sala was not applicable. He relied on the Home Office grounds of appeal. The judge had not properly set out the evidence that led him to his conclusions. Mr Nath faced the difficulty that his file had been sent to the wrong hearing centre and I put the case back to re-unite him with the file and enable him to consider the 300 page bundle that had been before the First-tier Judge. He accepted that there was a lot of information in the file such as GP letters and tenancy agreements and bank statements, correspondence from a college and the local church. The items should be cross-referenced with the refusal letter.
13. At the conclusion of the submissions I reserved my decision. As I have mentioned Mr Nath was in a difficulty at the hearing because all his files – not simply this one – had been sent to the wrong hearing centre and to make matters more difficult, all the appeals were appeals by the Secretary of State. In the circumstances I attempted to assist by putting the case back to enable the submissions to take into account the material before the First-tier Judge. He submitted that the material in the bundle should be cross referenced to the refusal letter.
14. I note the Secretary of State in the refusal letter was not satisfied that the appellants were residing with the sponsor and adds “This department would expect you to have provided further evidence in the form of doctors [sic] letters, utility bills, photographs, any other evidence that you would see as appropriate.” However Mr Nath accepted that the lengthy bundle contained material such as GP letters and I do not find it was incumbent on the judge to set out an itemised list of each and every document contained in a voluminous bundle.
15. This was a case where the judge was working from the position that there had been a previous factual assessment. He correctly applied the principles in Devaseelan. He had the benefit of a well-prepared bundle containing the witness statements and he applied the correct burden and standard of proof when considering the material. He found Ms Begel’s statement confirmed everything in the appellant’s statements. He makes sufficient reference to the documentary evidence including council, GP and NHS correspondence, and utility bills. Mr Nath submitted that there should be a cross-reference to the matters raised in the refusal letter but the judge appears to have properly addressed himself to the evidence. I note the judge did not make a fee award because the bundle included material that was not before the Secretary of State. The judge was entitled to conclude that the material in the bundle sufficiently addressed the respondent’s reasoning.
16. The First-tier Judge found for the appellants as he states in paragraph 26 of the determination on the basis that they had been residing with the EEA national for at least 6 years – the question he asked himself in paragraph 20 was “Can the appellants prove they have been financially dependent upon or residing with [Ms Begel] for 5 years prior to the present application, the subject of the appeal before me”.
17. As he had made a finding in paragraph 26 on the residency issue it was not necessary to make an express finding on the alternative route – financial dependency.
18. I agree with Mr Rana’s submission that the grounds merely voice disagreement with the facts and it is doubtful that permission to appeal would have been granted independently of the Sala point which is not pursued. The determination is not flawed by a material error of law.

Decision
The Secretary of State’s appeal is dismissed.
The decision of the First-tier Judge stands.

Anonymity Order
The First-tier Judge made no anonymity directions and I make none.
Fee Award
The First-tier Judge made no fee award and I make none.

Signed Date 7 March 2017

G Warr, Judge of the Upper Tribunal