EA/03930/2020

• Status of case: Unreported
• Hearing date: 21 Mar 2022
• Promulgation date: 3 May 2022
• Publication date: 19 Jul 2024
• Last updated on: 19 Jul 2024

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-001392
EA/03930/2020


THE IMMIGRATION ACTS


Determined on the papers
Decision & Reasons Promulgated
On Monday 21 March 2022
On Tuesday 03 May 2022



Before

UPPER TRIBUNAL JUDGE SMITH


Between

AYOUB HAOUKACHI
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent


DECISION AND REASONS

1. The Appellant appeals against the decision of First-tier Tribunal Judge Hussain promulgated on 15 November 2021 (“the Decision”). By the Decision, the Judge dismissed the Appellant’s appeal against the Respondent’s decision dated 7 July 2020 refusing him a family permit for entry to the UK as the extended family member (brother-in-law) of Mr Fouad Bez pursuant to the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”). Mr Bez (hereafter the Sponsor) is a French national married to the Appellant’s sister.

2. The Respondent had disputed that the Appellant was related as claimed to the Sponsor, that the Sponsor was exercising Treaty rights in the UK and that the Appellant is dependent upon the Sponsor such as to render him an extended family member pursuant to regulation 8 of the EEA Regulations.

3. The Judge accepted that the Appellant is related as he claims to the Sponsor and that the Sponsor is exercising Treaty rights in the UK. It appears that the latter is now accepted by the Respondent as it appears to be suggested by the Judge that the Sponsor has been given settled status under the EU Settlement Scheme. The Judge did not accept however that the Appellant is dependent upon the Sponsor. He therefore dismissed the appeal.

4. The Appellant appeals the Decision on a number of grounds. He says that the Judge has misconstrued the Appellant’s case, has applied the wrong standard of proof when assessing the evidence and has ignored or failed to reach findings on material evidence.

5. Permission to appeal was granted by First-tier Tribunal Judge Curtis on 20 January 2022 in the following terms:

“..2. I am satisfied that the grounds disclose an arguable error in the Judge’s approach to the evidence of money transfers. This was an appeal in which the Appellant had to prove he was dependent on the sponsor in Morocco. That inarguably requires a consideration of any financial dependence which is said to exist. In paragraph 29 the Judge notes the Respondent’s acknowledgement that eight transfer remittances were provided and that it was not stated (presumably with reference to the decision letter) over what period those transfers were made. The Judge then proceeds to identify that it posed a problem that he did not know how much the transfers amounted to and over what period.
3. However (and whilst the parties’ respective bundles were not before me) the grounds indicate that there was a schedule of transfers in the Respondent’s bundle which confirmed, not only the dates of the eight transfers, but the amounts involved. This schedule appears to have been overlooked by the Judge.
4. Furthermore, the grounds also indicate that the sponsor had made 16 additional transfers to the Appellant between 2017 and 2021 (amounting to £4,485) and that the vouchers and receipts relating to those transfers were provided within the Appellant’s bundle (at pages 144 to 169). As the grounds correctly point out, the Judge made no mention of these additional transfers in his “My Findings” section and it is arguable, consequently, that he has failed to take into account relevant evidence that was before him. Evidence of money transfers is likely to be material in an appeal in which the principal issue to be determined is whether an appellant is dependent on a sponsor. Since it is arguable that the Judge failed to properly take into account such evidence, the grounds disclose an arguable error of law.
5. The grounds are broken down into 7 paragraphs (the last of which is a summary/concluding section). It is not entirely clear, given the absence of sub-headings, whether the six substantive paragraphs were designed to amount to an argument that there were six discrete errors of law. However, for completeness, I am satisfied that paragraph 4 discloses an arguable error of law and I make no direct observation on the other paragraphs.”

6. By a Rule 24 Reply dated 23 February 2022, the Respondent indicated that she was prepared to agree that the Decision contains an error as follows:

“The respondent does not oppose the appellant’s application for permission to appeal, and accepts that the FTTJ materially erred by failing to take in to account the evidence in the bundle relied on by the appellant, and failing to make findings on the evidence of the witnesses as to the central issue of dependency. Such are the errors, it is the view of the SSHD that the matter should be remitted to the First-tier Tribunal to be heard afresh.”

7. In response to a request from the Tribunal for the Appellant to indicate whether he agreed to what was proposed, the Appellant’s solicitors notified the Tribunal that he accepted the concession made and what was proposed save that he asked the Tribunal to preserve the factual findings in his favour as to his relationship with the Sponsor and the Sponsor’s exercise of Treaty rights.

8. Since it was not apparent from the Rule 24 Reply that the Respondent was prepared to have any findings preserved, a further request was made of the Respondent as to her position in relation to what the Appellant proposed. She notified the Tribunal that she was content to accept that the findings indicated should be preserved. She noted however, as I had done in the email communication, that the Judge re-hearing the appeal may need to be satisfied that the Sponsor continues to exercise Treaty rights as at the date of the hearing before him or her.

9. In light of the concession which I accept is properly made, I find an error of law for the reasons set out in the Rule 24 Reply. I therefore set aside the Decision save for the following paragraphs which are preserved:

“25. I am gravely concerned by the respondent’s attitude in this case, when he considered the appellant’s documentary evidence in relation to his claimed relationship, which comprised birth certificates of himself and his sister and her marriage certificate to her EEA national husband. The respondent simply refused to accept the relationship because he did not have sight of the original. It is truly remarkable to say the least, that if the absence of the original caused concern to the respondent, why he could not have contacted the appellant to provide those. Moreover, as I understand it, under the current entry clearance procedure, supporting documents have to be uploaded either by the appellant or at an application centre. By its nature, therefore, the document reaching the decision maker will be a copy. The decision maker in this case ought to have been aware of this. If he/she was not aware, then that is wholly inexcusable. If they were aware, then clearly, they have not acted fairly towards the appellant. It is my hope that anyone reading this determination of any seniority will ensure that the decision maker in this case is taken to task for their attitude. For my part, I am satisfied that the appellant is related as claimed.
26. In relation to the sponsor’s exercise of Treaty rights, I have in the appellant's bundle a letter from the sponsor’s accountant confirming that his self-employed income for the year 2020/2021 is £16,767. The appellant’s application having been decided on 7 July 2020, the relevant financial year is the one mentioned. There is also a copy of his self-assessment for the same period that supports the claimed income. Consequently, I am satisfied that the appellants sponsor is exercising Treaty rights.”

10. The appeal is remitted to the First-tier Tribunal for redetermination of the remaining issue by a Judge other than Judge Hussain.

DECISION
I am satisfied that the Decision involves the making of a material error on a point of law. The Decision of First-tier Tribunal Judge Hussain promulgated on 15 November 2021 is set aside save for paragraphs [25] and [26] (as set out above) which are preserved. The appeal is remitted to the First-tier Tribunal for re-hearing before a Judge other than Judge Hussain.

Signed L K Smith Dated: 21 March 2022
Upper Tribunal Judge Smith