Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-005190
EA/02071/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 28 March 2023

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Afamya Mir Mahmod
(no anonymity order made)
Appellant
and

Entry Clearance Officer
Respondent

Representation:
For the Appellant: no appearance
For the Respondent: Mr McVeety, Senior Home Office Presenting Officer

Heard at Manchester Civil Justice Centre on 10 January 2023

DECISION AND REASONS
1. The Appellant is a national of Syria born on the 19th November 1978. She appeals with permission to this Tribunal against the decision of the First-tier Tribunal (Judge Swinnerton) to dismiss her appeal under the EU Settlement Scheme.
2. Judge Swinnerton had before him three linked appeals. That of the Appellant, and that of her two daughters, who were both under 21 at the operative time. The three had applied for a family permit under the EUSS in order to come to the UK to live with the Appellant’s mother, Mrs Zainab Almear Hussain, a Swedish national present and settled here. They had been refused by the Entry Clearance Officer who was not satisfied that the relationships were as claimed. By his decision of the 23rd June 2022 Judge Swinnerton found as fact that they were, that is to say that Mrs Hussain is the mother of the present Appellant and the grandmother of the remaining applicants. He was not however satisfied that they could demonstrate financial dependency on her, and dismissed all of the linked appeals.
3. Permission to appeal to the Upper Tribunal was granted on the 9th October 2022 by First-tier Tribunal Judge Boyes, who observed that neither of the Appellant’s daughters were required to demonstrate dependency. They were the direct descendants of Mrs Hussain, who is their maternal grandmother, and they are both under 21. That is sufficient. The Secretary of State accepts that this is the case, and by a Rule 24 response, Mr McVeety has indicated that he intends to have those decisions to refuse entry clearance reversed, and family permits issued to the Appellant’s daughters (Leen Razouk UI-2022-005191, Ninar Razouk UI-2022-005192).
4. The position of the Appellant is however somewhat different. That is because she is an adult and as such cannot benefit from of the provisions of Appendix EU, which are inexplicably framed as follows (I have highlighted the pertinent parts and omitted as much of the non- applicable parts as possible).
5. The reader must begin with section EU14 which reads:
EU14. The applicant meets the eligibility requirements for limited leave to enter or remain where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application and in an application made by the required date, condition 1 or 2 set out in the following table is met:
6. Condition 1 is met where:
(a) The applicant is:
(i) a relevant EEA citizen; or
(ii) a family member of a relevant EEA citizen; or
(iii) …
(iv) …
(v) … and
(b) The applicant is not eligible for indefinite leave to enter or remain under paragraph EU11 of this Appendix solely because they have completed a continuous qualifying period of five years;
(c) …
7. To find who the ‘family member of a relevant EEA citizen’ might be the reader must turn to the definitions set out in Annex 1 of Appendix EU:
a person who does not meet the definition of ‘joining family member of a relevant sponsor’ in this table, and who has satisfied the Secretary of State, including by the required evidence of family relationship, that they are (and for the relevant period have been), or (as the case may be) for the relevant period (or at the relevant time) they were:
(a) …
(b) …
(c) the child or dependent parent of a relevant EEA citizen, and the family relationship existed before the specified date; or
8. And lastly to the definition of a ‘child’ in the same Annex:
(a) the direct descendant under the age of 21 years of a relevant EEA citizen (or, as the case may be, of a qualifying British citizen) or of their spouse or civil partner; or
(b) (i) the direct descendant aged 21 years or over of a relevant EEA citizen (or, as the case may be, of a qualifying British citizen) or of their spouse or civil partner; and
(ii) (aa) dependent on the relevant EEA citizen or on their spouse or civil partner:
…
‘dependent’ means here that:
(a) having regard to their financial and social conditions, or health, the applicant cannot meet their essential living needs (in whole or in part) without the financial or other material support of the relevant EEA citizen (or, as the case may be, of the qualifying British citizen) or of their spouse or civil partner; and
(b) such support is being provided to the applicant by the relevant EEA citizen (or, as the case may be, by the qualifying British citizen) or by their spouse or civil partner; and
(c) there is no need to determine the reasons for that dependence or for the recourse to that support
9. As such the Appellant must demonstrate dependency upon her sponsor. Of the claimed dependency Judge Swinnerton said this (here the “first Appellant” is a reference to the Appellant):
15. That said, and turning to the issue of dependence with respect to the claimed financial dependence of the Appellants on the sponsor, I have not been provided with any money transfer remittances from the sponsor to the first Appellant. That is readily acknowledged by the first Appellant. I have been provided with only one money transfer (which appears to be dated 20.3.2021) which was sent by the sponsor to Khalil Bitar and not to the first Appellant. The definition of ‘child’ in Appendix EU refers to the meaning of ‘dependent’ and I have not been provided with anything close to sufficient evidence to support a finding that the first Appellant cannot meet her essential living needs in whole or in part without the financial or other material support of the sponsor. I do not accept, therefore, that the Appellants are dependent upon the sponsor and I do not accept that the first Appellant is a dependent child.
10. All of that, it appears to me, is unimpeachable. There remains, however, one difficulty. As Mr McVeety very fairly acknowledged at the hearing before me, the refusal by the ECO did not say anything at all about dependency. The refusal was squarely based on the dispute as to whether the Sponsor was in fact the mother/grandmother of the applicants. In those circumstances, and absent any legal representative, the Appellant simply put in evidence that went to that point. Now she finds her appeal dismissed for a quite different reason. I am satisfied, and Mr McVeety accepts, that fairness requires that she be given notice of the issue, to enable her to adduce evidence of dependency, if indeed it exists.
11. That being the case I issued directions in the following terms on the 11th January 2023:
I therefore direct that the Appellant (or Sponsor on her behalf) produce a further bundle, containing any evidence upon which she might wish to rely to establish that she is currently financially dependent upon her mother to meet her essential living needs. Such evidence should be filed and served within 35 days of this decision being sent. If more time is required the Appellant may apply for an extension of time. In the event that no evidence or application is made I will determine the matter on the evidence before me.
12. On the 12th January 2023 the Sponsor emailed the Tribunal in response to my directions, enclosing various documents that I set out below. It is deeply regrettable that these documents were not brought to my attention until the 20th March 2023. I duly forwarded them to Mr McVeety who indicated that he had no submissions to make and it was a matter for the Tribunal whether I found that dependency had been established.
13. The documents forwarded by the Appellant/Sponsor are as follows. There are two documents relating to the Appellant’s health. A letter from Dr Majd Karhili dated 25th January 2022 explains that the Appellant has significant problems with her back including a slipped disc which require surgery and “absolute rest”. Dr Karhili assesses her “disability percentage” as being 60-70%. The letter is on the headed paper of a Damascus health centre and is accompanied by a certified translation. The other document is the radiology report commissioned by Dr Karhili. These documents are relied upon as explanation as to why Ms Mahmod is not presently working to support herself. The next set of documents relate to her rent. A lease agreement for the property in which she lives is supplied in Arabic, again with a certified copy. This relates to a three year lease on a property in Damascus, valid from the 1st April 2020 to the 30th March 2023. The lessees are identified as the Appellant, her daughters, and the Sponsor in this case. The lessor is a Mr Khalil Marout Bitar. A related document is a Western Union money transfer from the Sponsor, which shows that on the 20th March 2021 she sent to Mr Bitar 2,500 Swedish Krona from a money transfer agent in Sweden. Finally there are produced a series of 22 money transfer receipts covering the period from March 2020 to the end of 2022 showing money transfers from the Sponsor directly to the Appellant. The earlier documents relate to remittances made from Sweden, the latter from the UK. They are for amounts varying between £100 and £250. The Sponsor asserts that her daughter is using this money to meet her essential living needs. Having had regard to all of the evidence provided, I am satisfied that this is the case, that dependency is established, and having regard to the First-tier Tribunal’s finding that the Sponsor and Appellant are related as claimed, I allow the appeal.

Decisions
14. The decision of the First-tier Tribunal is set aside.
15. The appeal is allowed.
16. There is no order for anonymity.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber
27th March 2023