Tribunal decisions

The decision

IAC-FH-CK-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number:
UI-2021-001419; EA/03806/2021
UI-2021-001420; EA/03807/2021
UI-2021-001421; EA/03819/2021

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 23 May 2022
On the 12 July 2022

Before

UPPER TRIBUNAL JUDGE BLUM

Between

MOHAMOUD ALI
RAYAN IBRAHIN
HAYAT IBRAHIM
(anonymity direction NOT MADE)
Appellants
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:

For the Appellant: Mr I Ali, counsel, instructed by Brys Immigration Consultants
For the Respondent: Ms S Rushforth , Senior Home Office Presenting Officer

DECISION AND REASONS

1. These are appeals against the decision of Judge of the First-tier Tribunal Parkes (“the judge”), promulgated on 24 November 2021, dismissing the appellants’ appeals against the respondent’s decisions, dated 3 March 2021, refusing to issue them EEA Family Permits pursuant to the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”) as dependent extended family members of an EEA national exercising EE free movement rights.

Background

2. The appellants are nationals of Somalia, residing in Somaliland. The 1st appellant, born on 10 March 1971, is the maternal uncle of Bashir Ali Hassan (“the sponsor”), a Swedish national living and working in the UK. The 2nd and 3rd appellants are the children of the 1st appellant, and therefore the first cousins of the sponsor. They applied for EEA Family Permits based on their relationships with the sponsor. They maintained that they relied on financial support from the sponsor in order to meet their basic needs, and therefore met the definition of Extended Family Member in article 8(2) of the 2016 Regulations.

3. The applications were refused as the respondent was not satisfied that the appellants were related to the sponsor, or that they were dependent on the sponsor.

4. The appellants appealed the respondent’s decisions pursuant to regulation 36 of the 2016 Regulations.

The decision of the First-tier Tribunal

5. The judge had before him a bundle of documents prepared on behalf of the appellant’s that included, inter-alia, a statement from the sponsor signed and dated 18 October 2021. The judge additionally had a Home Office bundle of documents. The judge heard oral evidence from the sponsor. As there was no Presenting Officer there was no cross-examination.

6. In the reliance on a DNA report the judge found that the claimed relationships were made out. The judge accepted that there was evidence of money remitted by the sponsor to the first appellant. The judge gave, by way of example, a letter of 22 November 2020 from Dahabsill, contained in the appellant’s bundle, confirmed money being sent by the sponsor in April, May, June, July and October 2020, $200 on each occasion. The judge made no reference to any further evidence of monies being remitted by the sponsor to the appellants. The judge stated that the evidence of financial support was limited and that the evidence from Dahabsill did not show the longer period of continuous support claimed to have been provided.

7. The judge then made reference to receipts provided by the appellants and to medical documentation relating to the 2nd appellant, and the judge noted that a report from a Prof Selim, which referred to an MRI scan in respect of the 2nd appellant, was dated 19 August 2019, which is not covered by the evidence from Dahabsiil.

8. At [13] the judge stated:

“The evidence taken overall does not show that the Appellants are dependent on the Sponsor for their essential needs. The evidence of their circumstances in Somalia is limited and does not provide anywhere near a complete picture. Similarly the evidence of funds remitted by the Sponsor is also limited, it states from 2020 and there was no evidence to show that support was provided for the medical treatment of [the second appellant]. That money has been sent is clear but the evidence considered above does not show that it has been required to meet some, or all, of their essential needs.”

9. And at [14] the judge stated:

“Given that it is said that support has been provided since 2017 and documentation has only been provided for a [sic] period of 2020, and then not continuously, it is not clear how the Appellant would have been supported before then or in 2018 or 2019. That they are related to the Sponsor I accept and that money has been sent I also accept that that does not show dependency on the evidence it might have supported the claim is conspicuous by its absence.”

10. The appeal was dismissed.

The challenge to the First-tier Tribunal’s decision

11. The grounds contend that the judge erred in law by failing to consider relevant evidence, namely, that there was no consideration of the sponsor’s written statement that he previously sent money in the form of cash with people from his community when they travelled to Somalia. The grounds further contend that the judge failed to consider evidence of further remittals of money from the sponsor to the first appellant throughout 2021. The judge’s findings were said to be perverse in respect of his failings described above.

12. Ms Rushforth submitted that the judge had adequately considered that money had been remitted, that, although there was no express reference to the sponsor’s explanation this had been considered, and that the judge was entitled to find, in the absence of any other support for the sponsor’s claims, that the money sent was not necessary to enable the appellants to meet their essential needs.

13. I indicated at the hearing that I was satisfied the judge materially erred in law and that the decision would be set aside. Both parties invited me to remit the case back to the First-tier Tribunal for a full rehearing.

Discussion

14. On the facts of this appeal the relevant legislative provisions at the material time were contained in Reg 8(2) of the 2016 Regulations. A person satisfies the condition in this paragraph, and is therefore an Extended Family Member, if 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.

15. In Lim v Entry Clearance Officer Manila [2015] EWCA Civ 1383 Lord Justice Elias stated, at [32],

In my judgment, the critical question is whether the claimant is in fact in a position to support himself or not, and Reyes now makes that clear beyond doubt, in my view. That is a simple matter of fact. If he can support himself, there is no dependency, even if he is given financial material support by the EU citizen. Those additional resources are not necessary to enable him to meet his basic needs. If, on the other hand, he cannot support himself from his own resources, the court will not ask why that is the case, save perhaps where there is an abuse of rights. The fact that he chooses not to get a job and become self-supporting is irrelevant.

16. The relevant case law indicates that the support that the EEA sponsor provides only needs to be ‘material’ or ‘necessary’ to enable the appellants to meet their essential needs (see Lim, at [25] & [32]; see also the respondent’s Policy Guidance ‘Extended family members of EEA Nationals, version 7.0, published for Home Office staff on 27 March 2019, which states, “The applicant does not need to be dependent on the EEA national to meet all or most of their essential needs. For example, an applicant is considered dependent if they receive a pension which covers half of their essential needs and money from their EEA national sponsor which covers the other half.”).

17. In the sponsor’s written statement he stated, at paragraph 3, that he had been supporting the 1st appellant “for many years but not on regular basis [sic]”. The 1st appellant “managed with handouts and odd jobs.” The sponsor explained that he used to live in London near an airport and:

“… would often send cash sums with people who are travelling to Somalia. There would be community travelling at least 2 to 3 times per month and it was easy to find someone through community contact [sic] that would take money for me. I would send $200 to $300 every time I could find one [sic] and particular if there was a fixed amount needed for specific care needs.”

18. At paragraph 4 the sponsor stated:

“I travelled to Somalia in 2017 and met my uncle for only the second time. I had been to Somalia in 1999 prior to that. It was when I saw his living conditions that I realised I had to help on regular basis [sic]. As described above I sent monies through cash but from April 2020 I started sending money via Dahabshiil. This was because of lockdown and so there was no travel out of the UK and I had no other means to send money to my uncle.”

19. In his statement the sponsor went on to assert that he was the supporter for the appellants and that “… other extended family have their own commitments and do not have the extra income with which to support my uncle.”

20. In my judgment the judge did not make any clear findings one way or the other concerning the sponsor’s credibility, or in respect of the sponsor’s assertion that he sent cash with other members of the Somalia community until the Covid-19 pandemic prevented him form doing so. Although there were no statements from the individuals in respect of whom the sponsor claimed he had given money to take to the appellants, his assertion was nevertheless not one that was inherently implausible. It required engagement by the judge. The judge however made no reference at all to the sponsor’s explanation as to how he had been providing money before April 2020, and there was no assessment of the explanation advanced by the sponsor as to why he started using Dahabsiil in April 2020 (this was said to be due to the Covid-19 pandemic preventing individuals travelling to Somalia).

21. I am additionally satisfied that the judge failed to take account of relevant evidence, namely, further evidence from Dahabsiil indicating remittances, usually of $200, from the sponsor to the first appellant on 1 December 2020, 2 January 2021, 3 February 2021, 2 March 2021, 4 April 2021, 9 April 2021, 7 May 2021, 6 August 2021, and 10 September 2021. The judge stated at [14] that documentation had only been provided covering the year 2020, but this was not correct. The evidence of further and regular remittances was supportive of the appellant’s claim to be dependent on the sponsor (although not determinative of), and should have been considered by the judge.

22. I am satisfied that both legal errors identified above render the decision unsafe and it cannot be said with any confidence that if they had not occurred the judge would inevitably have reached the same conclusion.

Remittal to First-Tier Tribunal

23. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 18 June 2018 a case may be remitted to the First-tier Tribunal if the Upper Tribunal is satisfied that:

(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or

(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.

24. Given the absence of any consideration of the explanation advanced by the sponsor for the absence of money remittance slips prior to April 2020, or of the further documentary evidence of money remittance slips in 2021, and given the absence of any finding as to the sponsor’s credibility, I consider that, in these circumstances, there will need to be a full re-assessment of all the evidence rendering it appropriate to remit the matter back to the First-tier Tribunal for a full fresh (de novo) hearing.

Notice of Decision

The making of the First-tier Tribunal’s decision involved the making of an error on a point of law requiring it to be set aside.

The case will be remitted back to the First-tier Tribunal for a de novo hearing before a judge other than Judge of the First-tier Tribunal Parkes.

Signed D.Blum Date: May 2022

Upper Tribunal Judge Blum