Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number:
UI-2021-001145; EA/03872/2021
UI-2021-001147; EA/03915/2021

THE IMMIGRATION ACTS

Heard at Field House, London
Decision & Reasons Promulgated
On Wednesday 13 April 2022
On Tuesday 21 June 2022

Before

UPPER TRIBUNAL JUDGE SMITH

Between

ENTRY CLEARANCE OFFICER
Appellant
-and-

MR PARVEEN KUMAR
MR RAJAT KUMAR
Respondents

Representation:
For the Appellant: Ms A Ahmed, Senior Home Office Presenting Officer
For the Respondent: Mr R Halim, Counsel instructed by Lawmatic solicitors

DECISION AND REASONS
BACKGROUND
1. This is an appeal by the Entry Clearance Officer. For ease of reference, I refer to the parties as they were before the First-tier Tribunal. The Respondent appeals against the decision of First-tier Tribunal Judge K Swinnerton promulgated on 29 November 2021 (“the Decision”). By the Decision, the Judge allowed the Appellants’ appeals against the Respondent’s decision dated 25 March 2021, refusing them a family permit under the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”) to join their father in the UK. Although the EEA Regulations have been repealed, these appeals proceed in accordance with transitional arrangements.
2. The Appellants are nationals of and resident in India. They are aged twenty-eight and twenty-six years respectively. Their father, Mr Ram Paul (hereafter “the Sponsor”), is a Portuguese citizen exercising Treaty rights in the UK. To succeed, the Appellants must establish that they are dependent on the Sponsor. Although they are direct family members, they are over the age of twenty-one.
3. The Judge found that the Sponsor had been sending money to the Appellants and their mother for some time. Although he accepted that their bank statements showed credits from other sources and despite their ages and educational backgrounds, the Judge found that the Appellants were not working. Although he noted the lack of detailed evidence about what the Appellants’ essential needs were, the Judge accepted that they were dependent on the Sponsor to meet most of their essential needs.
4. The Respondent appeals the Decision on the basis that the Judge’s findings are irrational and/or perverse.
5. Permission to appeal was granted by First-tier Tribunal Judge F E Robinson on 29 December 2021 in the following terms so far as relevant:
“..3. It is arguable that the Judge made a mistake in concluding that the Appellants met the test of dependency under regulation 7 of the Immigration (European Economic Area) Regulations 2016 given that no evidence was adduced by the Appellants of details of the expenditure required to meet their essential needs.”
6. The matter comes before me to determine whether the Decision contains an error of law and, if I so conclude, to either re-make the decision or remit the appeal to the First-tier Tribunal to do so. I had before me the core documents relating to the appeal and the Appellant’s and Respondent’s bundles as before the First-tier Tribunal. However, given the nature of the challenge to the Decision I do not need to refer to those documents.
DISCUSSION
7. As Mr Halim pointed out in his submissions, some of the grounds as pleaded appear to be an attempt to re-argue the Respondent’s case (see for example [4] of the grounds of appeal). As Ms Ahmed accepted, the thrust of the grounds is in any event only that the Judge’s findings are irrational and perverse on the evidence. There is for example no challenge based on a lack of reasoning. As Ms Ahmed also accepted, the threshold in relation to perversity is a high one. It is not a question whether another Judge might have reached a different conclusion on the same evidence but whether no reasonable Judge properly directed could have reached the conclusion which this Judge reached. There is no challenge to the Judge’s self-directions on the law. As Mr Halim also reminded me, it is not for this Tribunal to disturb a decision of the First-tier Tribunal simply because I disagree with the outcome. The Respondent has to establish that the Judge’s findings are wrong in law.
8. I turn then to the individual findings which are challenged as either irrational or perverse. I begin with the finding made by the Judge in relation to the credits to the Appellants’ accounts from other sources. There is no dispute that there were other credits which were unexplained. They came from a supermarket and a brokers’ firm. The inference was drawn by the Respondent that these showed that the Appellants were working. The Appellants did not themselves give evidence; they live in India and permission would have been required from FCDO to give evidence had they wished to do so. The Sponsor did give oral evidence. He was unaware to what those credits referred. However, his evidence was that “neither of the Appellants have ever worked” ([5] of the Decision).
9. Mr Halim drew my attention to what was said in submissions to Judge Swinnerton on this aspect of the case. At [8] of the Decision, the Respondent’s own representative said this:
“The bank statements of the Appellants detail credits from other sources, perhaps not significant, to support the contention that the Appellants do not receive monies solely from the sponsor.”
In response, the Appellants pointed out that “[t]he Appellants did not have to show that all monies came from their father but did have to demonstrate that, without his monies, they would not be able to meet their essential needs”. As Mr Halim emphasised, even if the Appellants had been working, the fact that some of their needs were met by the Sponsor would be sufficient. As he accepted in discussion, it is not clear whether the Respondent’s submission was that the amounts of the other credits were not necessarily significant or whether the fact of those other credits was not necessarily legally significant. As he submitted, and I accept, however, either way the fact of the credits did not mean that the Appellants would necessarily fail in their appeal.
10. Having accepted at [16] of the Decision that the Sponsor had sent significant amounts of money to the Appellants and their mother over the years and that “financial support has been and continues to be provided to the Appellants from their father”, the Judge went on to consider the other credits which the Respondent had identified. He said this about that evidence:
“17. As stated earlier, Mr Eaton on cross-examination referred the sponsor to credits (or deposits) made into the account of the first Appellant from Religare Broking Limited. There are also a number of deposits made to the account of the first Appellant from Avenue Supermarkets such as, by way of example, a deposit of 27,635 rupees on 1.9.2020 and a deposit of 18,507 rupees on 3.8.20. The sponsor had no knowledge of these credits and Mr Eaton made the valid point that the Appellants, and particularly the first Appellant, have not provided witness statements or in any other manner addressed the issue of other deposits to their accounts. Whilst the other deposits to the accounts of the Appellants (and particularly to the account of the first Appellant) do not appear to be at the same level as those made by the sponsor, they can not all be characterised as insignificant given the average monthly wage prevailing in India (USD178) as detailed in the skeleton argument of the Appellants (at page 7 of the Appellant’s bundle).”
11. The Judge went on to deal with this aspect of the case at [19] of the Decision as follows:
“In respect of the living arrangements of the Appellants, I find that the Appellants are living in the family home in India which is owned by their father. I also accept that the Appellants are living there with their mother. In respect of whether or not the Appellants have ever worked, I have some reservations as to whether the first Appellant has ever worked given that he is now aged 28, graduated more than four years ago, is highly educated and also taking into account that the source of certain of the deposits in the account of the first Appellant may, or may not, be relevant to that issue. That said, I am prepared to accept that neither of the Appellants has worked or is in work.”
12. The Respondent argues that this conclusion is irrational because there is no evidential basis for the finding that the Appellants have never worked. I disagree. The Judge had noted by this point and accepted that the Sponsor had been sending quite large sums of money to the Appellants. He accepted that the documentary evidence showed other credits which were not insignificant in amount. He also took into account the factors which might support the Respondent’s inference that these credits showed that the First Appellant at least was working. However, the Sponsor’s evidence was that his sons had never worked. It was for the Judge to form a view on the evidence as a whole. He was entitled to reach the conclusion he did when taking into account all that evidence. His finding is not irrational.
13. As Mr Halim also pointed out, and I accept, the issue for the Judge was whether some of the Appellants’ essential needs were provided for by the Sponsor. Even if the Appellants were found to be working therefore, that would not be the end of the matter. The issue is whether, without the money from the Sponsor, the Appellants would be unable to meet their essential needs. That brings me on to the second of the issues raised by the Respondent.
14. The Respondent argues that in light of the Appellants’ failure to provide evidence of what their essential needs were, it was irrational and even perverse for the Judge to find that those essential needs were being met at least in part by the Sponsor.
15. Turning back to the Decision, the Judge at [18] referred to the Respondent’s submission about the lack of evidence as follows:
“Mr Eaton also made the valid point, which I accept, that the Appellants have not provided details of the expenditure required to meet their essential needs in order to assist the Tribunal in considering the extent to which the monies provided by the sponsor to the Appellants go towards meeting the essential needs of the Appellants.”
16. The Judge considered the issue at [20] of the Decision as follows:
“As stated above, the Appellants are not required to show that they are dependent on the sponsor to meet all or most of their essential needs. Based upon a balance of probabilities, I accept that they are dependent on the sponsor to meet most of their essential needs.”
17. As I have already indicated, I accept that the Appellants do not have to show that all their needs are met by the Sponsor. The Judge had accepted that the Sponsor was transferring significant sums of money to the Appellants and their mother. He was entitled to take that into account when reaching a conclusion whether the Appellants were dependent on the Sponsor. Whilst the fact of transfers alone is not necessarily indicative of dependency, the Judge also had evidence from the Sponsor recorded at [5] of the Decision that “he sends monies to India to meet the expenses of his sons relating to food, household expenses and their studies”. The Judge was entitled to take account of and accept that evidence even if unsupported by documentary evidence or evidence from the Appellants themselves.
18. The Respondent refers in her grounds to the Court of Appeal’s judgment in Lim v Entry Clearance Officer, Manila [2015] EWCA Civ 1383 which she correctly points out is authority for the proposition that the Appellants are required to demonstrate that they would be unable to meet their essential needs without the Sponsor’s support. However, it is not the case that the Judge found the point to be unevidenced. There was no detail of the Appellants’ expenditure as noted at [18] of the Decision but the Judge did have oral evidence that the Sponsor’s transfers were used to pay for essential needs such as food and household expenses. There was therefore evidence on which the Judge could rely when reaching his finding on the balance of probabilities. His finding is not irrational nor perverse.
19. The Respondent’s grounds do not show that the Judge made any error of law. He properly directed himself in relation to the issues. He reached findings open to him on the totality of the evidence. Another Judge might well have reached the opposite conclusion on the same evidence but that is not the test. The findings are not irrational or perverse.
CONCLUSION
20. For the foregoing reasons, I am satisfied that there is no error of law in the Decision. I therefore uphold the Decision with the result that the Appellants’ appeals remain allowed.
DECISION
The Decision of First-tier Tribunal Judge K Swinnerton promulgated on 29 November 2021 does not involve the making of an error on a point of law. I therefore uphold the Decision with the consequence that the Appellants’ appeals remain allowed.

Signed: L K Smith
Upper Tribunal Judge Smith
Dated: 14 April 2022