Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: UI-2021-001197
(EA/02508/2021)

THE IMMIGRATION ACTS

Heard at Field House
On the 13th April 2022
Decision & Reasons Promulgated
On the 23rd June 2022

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Muhammad Arif Ahmed
(no anonymity direction made)
Appellant
And

Entry Clearance Officer
Respondent

For the Appellant: Ms R. Akhter, Counsel instructed by Westgate Solicitors
For the Respondent: Mr E. Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Bangladesh born on the 2nd September 2003. He appeals with permission against the decision of the First-tier Tribunal (Judge C.H Bennett) to dismiss his appeal with reference to the Immigration (European Economic Area) Regulations 2016 (‘the Regs‘).

2. The background to this appeal is as follows. On the 31st December 2021 the Appellant made an online application for permission to enter the UK in order to join the household of his brother-in-law, Sponsor Mr Nurul Islam. Mr Islam is married to the Appellant’s sister, Mrs Fahmida Islam Mili. He is a Portuguese national exercising treaty rights in the United Kingdom.

3. The Entry Clearance Officer (ECO) refused to grant a family permit under regulation 12 of the Regs. It was not accepted that the Appellant was related as claimed to Mr Islam; it was not accepted that the Appellant was dependent upon Mr Islam for his essential living needs since there was a lack of evidence of direct remittances and the family had not provided any information about their income or expenditure; in any case the Sponsor Mr Islam was in receipt of state benefits in the UK indicating that he did not have the means to support the Appellant should he come to live here.

4. The Appellant appealed and the matter came before Judge Bennett. The hearing was conducted via CVP, without the benefit of a Presenting Officer. Judge Bennett heard oral evidence from Mr Islam and made two material findings in his favour. The first was that DNA and documentary evidence established that the Appellant is the brother of Fahmida Islam Mili, and that Ms Mili is the wife of the Sponsor. Judge Bennett therefore accepted that the two men were related as claimed. The second finding in the Appellant’s favour was that contrary to the finding of the ECO, he is dependent upon his brother-in-law. Having made those findings Judge Bennett nevertheless dismissed the appeal, on the grounds that the Appellant would, in his assessment, no longer be dependent upon his brother-in-law once he arrived in the UK. Although the documentary evidence established a current dependence whilst the Appellant remained in India, the financial circumstances of Mr Islam were such that Judge Bennett did not accept that he would be able to support the Appellant once he arrived in this country.

5. The Appellant appealed, essentially on the grounds that the Tribunal misdirected itself to the requirements of Regulation 8. I need not set out the grounds in any detail, since before me Mr Tufan for the Respondent accepted that the Tribunal had indeed erred in its application of the Regulations.

6. Regulation 8 reads as follows:

8.—
(1) In these Regulations “extended family member” means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies a condition in paragraph (2), (3), (4) or (5).
(2) The condition in this paragraph is that the person is—
(a) a relative of an EEA national; and
(b) residing in a country other than the United Kingdom and is
dependent upon the EEA national or is a member of the EEA
national’s household; and either—
(i) is accompanying the EEA national to the United Kingdom or wants to join the EEA national in the United Kingdom; or
(ii) has joined the EEA national in the United Kingdom and continues to be dependent upon the EEA national, or to be a member of the EEA national’s household.
(3) The condition in this paragraph is that the person is a relative of an EEA national and on serious health grounds, strictly requires the personal care of the EEA national.
(4) The condition in this paragraph is that the person is a relative of an EEA national and would meet the requirements in the immigration rules (other than those relating to entry clearance) for indefinite leave to enter or remain in the United Kingdom as a dependent relative of the EEA national.
(5) The condition in this paragraph is that the person is the partner (other than a civil partner) of, and in a durable relationship with, an EEA national, and is able to prove this to the decision maker.
(6) In these Regulations, “relevant EEA national” means, in relation to an extended family member—
(a) referred to in paragraph (2), (3) or (4), the EEA national to whom the extended family member is related;
(b) referred to in paragraph (5), the EEA national who is the durable partner of the extended family member.
(7) In paragraphs (2) and (3), “relative of an EEA national” includes a relative of the spouse or civil partner of an EEA national where on the basis of being an extended family member a person—
(a) has prior to the 1st February 2017 been issued with—
(i) an EEA family permit;
(ii) a registration certificate; or
(iii) a residence card; and
(b) has since the most recent issue of a document satisfying sub-paragraph (a) been continuously resident in the United Kingdom.
7. The parties invited me to apply that provision to the facts as found by Judge Bennett. The Appellant is not a family member under reg 7, but he can qualify as an ‘extended family member’ if he meets “a condition in paragraph (2) (3) (4) or (5)” . The Appellant relied on paragraph 2:

(2) The condition in this paragraph is that the person is—
(a) a relative of an EEA national; and
(b) residing in a country other than the United Kingdom and is
dependent upon the EEA national or is a member of the EEA
national’s household; and either—
(i) is accompanying the EEA national to the United Kingdom or wants to join the EEA national in the United Kingdom; or
(ii) has joined the EEA national in the United Kingdom and continues to be dependent upon the EEA national, or to be a member of the EEA national’s household.

8. On the findings of Judge Bennett, we know that he is the “relative of an EEA national” who is “residing in a country other than the United Kingdom and is dependent upon the EEA national…”, so he meets the requirements at paragraph 2 (a) and (b). As to (c), the Appellant meets sub-clause (c)(i): he wants to join the EEA national in the United Kingdom. That being the case, Mr Tufan accepts, the Appellant is an extended family member, and the ECO must now consider his application on that footing.

9. The error accepted to have been made by Judge Bennett is in his misdirection at paragraph 12 of his decision. There the Tribunal summarises reg 8 as follows:

“…Mr A must establish that

(a) He is now either

(1) Dependent on ‘the EEA national’, therefore Mr NI, or
(2) A member of his household,

(3) Mr NI is residing in the United Kingdom ‘in accordance with’ the 2016 regulations..

(4) He (Mr A)

(1) Wishes to join Mr NI in the United Kingdom, and
(2) Would, if he were granted a family permit, continue to be either

(i) Dependent upon him (Mr NI) or
(ii) A member of his household

10. The unfortunate error in this perhaps unnecessary transposition of the regulation is highlighted in bold above: there is no ‘and’ between (1) and (2). It should have read ‘or’:

(2) The condition in this paragraph is that the person is—
(a) a relative of an EEA national; and
(b) residing in a country other than the United Kingdom and is
dependent upon the EEA national or is a member of the EEA
national’s household; and either—
(i) is accompanying the EEA national to the United Kingdom or wants to join the EEA national in the United Kingdom; or
(ii) has joined the EEA national in the United Kingdom and continues to be dependent upon the EEA national, or to be a member of the EEA national’s household.

11. The consequence of this misdirection at paragraph 11 of the First-tier Tribunal’s decision was that it then spent a further 20 pages going into significant detail about why, on its findings, the Appellant could not show that he would continue to be dependent upon his brother-in-law once he arrived here, or that he would become part of his household. As the Secretary of State accepts, he was not required to show either of these things.

12. The decision of the First-tier Tribunal is set aside, and the appeal is allowed. It is now for the ECO to exercise his discretion in deciding whether to grant a family permit.

Decisions

13. The decision of the First-tier Tribunal is set aside.

14. The decision in the appeal is remade as follows: the appeal is allowed on the grounds that the decision is not in accordance with EU law.

15. There is no order for anonymity.

Upper Tribunal Judge Bruce
15th April 2022