Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-001246 (EA/03896/2021)
UI-2021-001272 (EA/03897/2021)
UI-2021-001278 (EA/06025/2021)
UI-2021-001273 (EA/06020/2021)
UI-2021-001279 (EA/06029/2021)

THE IMMIGRATION ACTS

Heard at Field House
On the 19 April 2022
Decision & Reasons Promulgated
On the 17 August 2022

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

AMINA KOUSAR
(AND ONE CHILD)
First Appellant
SAJIDA PARVEEN
(AND TWO CHILDREN)
Second Appellant

and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the appellant: Mr E. Nicholson, instructed by Ali & Ali Solicitors
For the respondent: Mr E. Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The first and third appellants are the sisters of a Spanish citizen who is resident in the UK. The remaining appellants are their dependent children. The appellants appealed the respondent’s decisions (March 2021) to refuse to issue family permits as the extended family members of an EEA national.
2. First-tier Tribunal Judge Verghis (‘the judge’) dismissed the appeal in a decision promulgated on 08 October 2021. The judge summarised the respondent’s reasons for refusing the applications [10]-[14]. The familial relationship was not disputed nor was the fact that the EEA sponsor was a Qualified Person. However, the respondent did not accept that there was sufficient evidence to show that the appellants were dependent upon the sponsor. There were sporadic money transfer receipts from March 2019. There was insufficient evidence to explain the appellants’ family circumstances to show that without the EEA sponsor’s financial support their essential living needs could not be met. The respondent also noted that her records showed that the EEA sponsor supported at least five other dependant relatives in the UK. The evidence showed that the sponsor earned a monthly net income of around £2,224 and that his rent was around £550 a month. There was no evidence of his outgoings contained in his bank statements. The respondent was not satisfied that the EEA sponsor could afford to support the appellants in the way claimed in addition to the five family members who were already dependant on him in the UK.
3. The judge went on to summarise the case put forward by the appellants [15]-[20]. The first appellant and her child were said to have been financially dependent on the EEA sponsor since July 2019 when she separated from her husband. The third appellant and her children claimed that her husband was not able to financially support her or to provide accommodation because he was on a low income. The third appellant said that her husband also cared for two brothers who are severely disabled.
4. When the judge turned to make her findings, she considered the oral evidence given by the EEA sponsor [24]-[31]. The judge had the opportunity to see and hear from the sponsor and to assess his reliability as witness. She found the sponsor’s evidence to be vague and lacking in detail as to how his sisters used the remittances to meet their essential needs. He provided little detail on how they lived on a day-to-day basis. The judge accepted that there was evidence to support the sponsor’s stated income. The judge found it ‘improbable’ that the sponsor lived as simply as he claimed. His claim to live with his mother, wife and three children, but not to have a television or internet access was ‘highly unusual’ in the modern world. The sponsor’s evidence that he contacts his sisters by telephone undermined his evidence [32].
5. The judge considered the evidence contained in the witness statements of the first and third appellants. The first appellant said that she did not have any qualifications to find work and that it was unusual in her community for women to work. She had been completely dependent on her husband for support. The judge noted that this evidence appeared to contradict the EEA sponsor’s claim that he provided financial support to both sisters before the first appellant separated from her husband in July 2019 [35]. The judge found it strange that the statement did not provide some explanation as to why her husband did not provide any support for the child since their separation. There was little information about her married life.
6. The judge considered the witness statement of the third appellant who also claimed that she had been dependent upon the EEA sponsor since 2019 because her husband was struggling financially and was unable to provide for the family [37]-[39]. She lived rent free in the sponsor’s house in Pakistan and the sponsor meets all their expenses. The third appellant claimed that she separated from her husband in February 2021 due to the strain of their financial difficulties. Since then, she has also been dependent on the sponsor for emotional support. The judge observed that little detail was provided about her married life or of her husband’s circumstances. There was no detail about his siblings’ difficulties, which was said to be one of the problems that caused him to be unable to support the family. The third appellant gave the same explanation about her inability to work to support her family.
7. The EEA sponsor said that monies were sent to a joint account held by his mother and the first and third appellants. His mother would dispense the money to the appellants. Neither appellant mentioned the account, which undermined the reliability of their claim to be financially dependent on the sponsor [36][40].
8. Having reviewed the evidence, the judge concluded:
’41. The first and third appellant have provided no evidence to support their contention that they live within the family home owned by the sponsor. They have not provided any significant detail about how they manage their lives on a [day-to-day] basis and how they could not meet their essential living needs without the support of the sponsor. It is the sponsor’s evidence that the first and third appellant told him to reduce payments to them from £250 per month to £150-160 per month this year; neither the first not third appellant address this issue in their statements and this again I find, detracts from their credibility.
42. I am asked to find that the appellants are dependent on the sponsor for their essential living needs. Whilst I accept that payments have been made, on the evidence before me I cannot discern the purpose of the payments. I find the evidence of the sponsor, first and third appellant to be brief and lacking in detail and consequently do not find their evidence credible. I cannot place weight on their bare assertions of financial dependency on the sponsor. On the evidence before me, I cannot be satisfied as to the circumstances of the married lives of the first and third appellants. There is evidence that the first appellant is now separated but in respect of both, there is no detail about their spouses and why their spouses do not support them. There is no evidence before me that the appellants actually live in the sponsor’s home. Taking the evidence in the round, I am not satisfied that the appellants are dependent financially on the sponsor for their essential living needs and find that they have not met the requirements of the Regulations.’
9. The appellants applied for permission to appeal the First-tier Tribunal decision on the following grounds:
(i) That the judge failed to consider material evidence of dependence to show that the appellants were living in the sponsor’s house in Pakistan. In fact, there was a ‘separation certificate’ from the Office of the Union Council stating that the first appellant was living in her brother’s house. Both appellants gave the same address in the application forms. The sponsor had provided ownership documents for the house. The third appellant’s bank statement gave the same address.
(ii) That the judge erred in finding the first and third appellants evidence not to be credible despite not having heard from them. It was unfair to take credibility points that had not been put to them.
(iii) The judge’s findings relating to the reliability of the sponsor’s evidence was outside a range of reasonable responses to the evidence. It was not open to the judge to reject the sponsor’s assertion that he did not have a TV or internet access. The fact that he telephones his sisters was an inadequate reason for rejecting his evidence.
Decision and reasons
10. I bear in mind that an appeal court should be slow to interfere with the findings of fact made by the court below when the First-tier Tribunal judge had the opportunity to hear and assess oral evidence from the sponsor and was in a position to assess the documentary evidence in that context. A First-tier Tribunal judge must consider relevant evidence, but it is trite that they are not obliged to make findings on each and every piece of evidence.
11. The evidence contained in the Home Office bundles for the first and third appellants indicates that this was the first appellant’s fifth application for a family permit having been refused on similar grounds relating to lack of evidence and the sponsor’s ability to support so many dependents on four previous occasions (13/08/19, 14/11/19, 17/01/20, and 25/02/20). This was the third appellant’s sixth application for a family permit having been refused on similar grounds on five previous occasions (01/07/19, 13/08/19, 23/09/19, 27/12/19, and 11/02/20).
12. The consistent theme throughout the previous decisions refusing a family permit was that the appellants had not produced sufficient evidence to give a clear picture of their family circumstances or to show that it was more likely than not that they were dependent on the EEA sponsor for their essential living needs.
13. In relation to the first ground of appeal, Mr Nicholson referred to various pieces of evidence contained in the appellants’ bundle, which he said indicated that the appellants were likely to be living in the EEA sponsor’s house in Pakistan and were dependent upon him. The fact that the appellants both gave their address in the application form care of the town post office in Jaurah was not proof that they lived in the same house let alone the sponsor’s house. While recognising that in small towns and villages houses in Pakistan might not be identified in the same detail as in the UK, on the face of it, the addresses outlined at paragraph 6 of the grounds of appeal for the appellants and the land owned by the sponsor are not the same. The land ownership document was mentioned in a previous decision letter and only went so far as to show that the sponsor owned land in the area. The fact that the third appellant’s bank statement also gave the name of the town as Jaurah did not take matters any further in terms of proving that she lived in a house owned by the sponsor.
14. The appellants’ bundle contained a letter that was said to be from the Office of the Union Council Jaurah. The letter dated 23 October 2019 was entitled ‘Separation Certificate’. It purported to certify that the first appellant was separated from her husband and was living in her brother’s residence. It stated that ‘she is totally depending on her brother’. The letter amounted to little more than a bare assertion. It did not identify the writer and did not explain how an unnamed official from the Union Council might know this information.
15. In my assessment the evidence referred to in the grounds was not capable of showing that the appellants were living in the EEA sponsors house and the only piece of evidence that purported to make such a statement in relation to the first appellant was vague and unparticularised. For this reason the evidence was not likely to attract any meaningful weight in the assessment. The evidence was not strong enough to compel a different outcome. In the circumstances, the fact that the judge did not make specific reference to the evidence referred to in the grounds does not amount to an error of law that would have made any material difference to the outcome of the appeal.
16. The second ground of appeal argues that it was not open to the judge to find that the evidence given in their witness statements was not credible in circumstances where their evidence had not been tested orally. I did not understand Mr Nicholson’s submission to be so broad as to suggest that the evidence given in a witness statement of a person who is not called to given evidence must be accepted. Such a submission would be unsustainable. At the hearing, the argument seemed to be reformulated into a submission that it was unfair to take points against the appellants about a lack of detail relating to their evidence without notice.
17. It was submitted that the decision letters did not raise any specific issues doubting whether the appellants were separated from their husbands as claimed. However, the burden of proof is on the appellants to produce sufficient evidence to show on the balance of probabilities that they meet the relevant requirements to be issued with a family permit. It was clear from the decision letters that the respondent found that there was insufficient evidence relating to their family circumstances to be satisfied that they were dependent on the sponsor for their essential living needs as claimed. Given that both women claimed to be separated from their spouses, who might normally be the ones expected to support them, their personal circumstances was a material issue in the overall assessment of whether they were likely to be dependent on their brother for support.
18. There is a distinction between evidential matters that might need to be put to a witness or legal representative, such as internal discrepancies or inconsistencies with other evidence, and the reasons given to explain a judge’s evaluation of the evidence. Just as a judge is not required to make findings on each and every piece of evidence, save for that which is central to a proper determination of the case, procedural fairness does not require a judge to put each and every potential reason for their decision to an appellant, sponsor or legal representative during the hearing.
19. The judge’s finding that the witness statements lacked credibility was an unfortunate characterisation when in fact it seems clear from what she said that she just gave little weight to that evidence because it was not sufficiently detailed. Given the background of repeated refusal of previous applications based on insufficient evidence, it was open to the judge to conclude that the witness statements did not provide sufficient detail for her to be satisfied as to the appellants’ personal circumstances. This was an evaluation of the evidence that was open to the judge, especially in light of her additional assessment of the EEA sponsor’s oral evidence as being vague and lacking in detail. For these reasons, I conclude that the second ground of appeal does not identify a material error of law.
20. The third ground argued that it was irrational for the judge to reject the sponsor’s evidence relating to his living expenses for the reasons she gave at [32] of the decision. Although it is of course possible that not every household has a television and that some people cannot necessarily afford the cost of internet access in their homes, it was not outside a range of reasonable responses for the judge to conclude that it was implausible that the EEA sponsor claimed that he did not have such services given that they are common in most homes in the UK. This evidence went to the issue of whether the sponsor was likely to be able to afford to support the appellants to the extent that they claimed in light of his income and financial responsibility for a number of other family members in the UK. Given that the sponsor had claimed in oral evidence that he did not have a mobile phone [24] it was open to the judge to note that this conflicted with his evidence that he kept in contact with his family members in Pakistan by telephone [29][32].
21. I conclude that the grounds amount to disagreements with the findings and fail to identify any errors of law that might have made a material difference to the outcome of the appeal. For the reasons given above, I conclude that the First-tier Tribunal decision did not involve the making of an error on a point of law. The decision shall stand.
DECISION
The First-tier Tribunal decision did not involve the making of an error on a point of law
The decision shall stand

Signed M. Canavan Date 23 June 2022
Upper Tribunal Judge Canavan
________________________________________________________________________________
NOTIFICATION OF APPEAL RIGHTS
1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent:
2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).
3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).
4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).
5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.
6. The date when the decision is “sent’ is that appearing on the covering letter or covering email