Tribunal decisions

The decision

IAC-FH-CK-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number:
UI-2021-001641; EA/04062/2021
UI-2021-001642; EA/04075/2021
UI-2021-001643; EA/04065/2021
UI-2021-001644; EA/04066/2021
UI-2021-001645; EA/04069/2021
UI-2021-001646; EA/04073/2021

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 10 May 2022
On the 12 July 2022

Before

UPPER TRIBUNAL JUDGE BLUM

Between

SADIA MUIR
SAMR AHMAD
NEAH WASEEM
ZAEEM AHMAD
HADI AHMAD
ATTIA TUL BASEER
(anonymity direction NOT MADE)
Appellants
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:

For the Appellant: Mr A De Ruano, counsel, instructed by Kingswright Solicitors
For the Respondent: Ms Ahmed, Senior Home Office Presenting Officer

DECISION AND REASONS

1. These are appeals against the decision of Judge of the First-tier Tribunal Lal (“the judge”), promulgated on 6 August 2021, dismissing the appellants’ appeals against the respondent’s decisions, dated 26 February 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 Eu free movement rights.

Background

2. The appellants are nationals of Pakistan. The 1st appellant, born on 10 August 1984, is the mother of the remaining appellants, who were all minors at the relevant dates. They applied for EEA Family Permits based on their relationships with Mr Bashir Udin Mir (“the sponsor”), who is the 1st appellant’s paternal uncle and a Belgium national working in the UK. The 1st appellant was estranged from her husband (Mr Waseem Ahmad, who, according to the appellant, is now living in the UK having entered pursuant to an EEA Family Permit based on his dependency on his own brother, an EEA national living and working in the UK) and claimed that she and her children were dependent on money remitted by the sponsor in order to meet their essential needs.

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, or that the sponsor would be able to support the appellants once they entered the UK as he was in receipt of Working and Child Tax Credits.

4. The appellants appealed the respondent’s decisions pursuant to regulation 36 of the Immigration (European Economic Area) Regulations 2016.

The decision of the First-tier Tribunal

5. At the outset of the hearing the respondent accepted that the relationships were established. The judge heard oral evidence from the 1st appellant (remotely from Pakistan) and from the sponsor who attended the hearing. The judge additionally had before him a bundle of documents that included, amongst others, statements from the 1st appellant, the sponsor and Mr Zaheer Ud Din Mir (the paternal uncle with whom the appellants were living in Pakistan), an Applied Bank statement in the 1st appellant’s name showing deposits in February, March, May and June 2021, and various money remittance slips.

6. The judge summarised the oral evidence from the 1st appellant at [3] and [4] of his decision. It was the 1st appellant’s case that she was estranged from her husband having suffered “extreme hardship and domestic abuse” (statement, paragraph 3). She and her children left her husband in December 2019 and went to live with Mr Zaheer Ud Din Mir. Mr Zaheer Ud Din Mir was also accommodating the 1st appellant’s parents (who were said to be physically disabled) and the 1st appellant’s sister who suffers from epilepsy. The appellants asserted that Mr Zaheer Ud Din Mir was struggling to accommodate and support the appellants. The sponsor became aware of the situation and, in August 2020, started to send financial support to the 1st appellant on a monthly basis. The appellants maintain that this was necessary for the purchase of their clothes, medicines, children’s school fees and other basic needs.

7. At [4] the judge referred to evidence given by the 1st appellant in cross-examination concerning two money transfer receipts in respect of monies sent to her by a Mr Butt in Germany in 2020. The 1st appellant accepted that Mr Butt sent her funds in excess of 80,000 and 90,000 rupees and said he was another uncle. Sher stated that some of the money was for her sister and another woman. In his oral evidence the sponsor said he did not know a Mr Butt from Germany [5].

8. The substance of the judges decision is contained at [8] to [10].

[8] Having considered the evidence with care the Tribunal is satisfied that the dependency in this case is a manufactured one designed to facilitate migration to the UK for economic betterment. The Tribunal found the evidence of Ms Munir to not be credible because it was quite clear during her cross-examination that there were other large sums deposited to her by another relative, Mr Butt, based in Germany. The Tribunal is satisfied that the First Appellant has not been candid or honest about her sources of income and expenditure and she has access to other sources of support that have not been adequately explained.

[9] It [sic] found the evidence of her sponsor to also not be credible as it did not accept his evidence that he had never heard of Mr Butt and the Tribunal noted that he is also in receipt of Working and Child Tax credits at £650 every four weeks. This would suggest that the Sponsor is not really able to support the Appellants at the current time in terms of dependency and that rather than being a genuine case where the Appellants are dependent on him this is a manufactured situation to facilitate onward migration.

[10] The Tribunal deemed it more likely that the First Appellant, noting her ex-husband had apparently entered the UK under the EEA Regulations, has manufactured a situation where her uncle in the UK was to be recorded sending her money since August 2000 [sic] in an attempt to facilitate migration for her and her family. The receipts are not determinative of dependency as there are clearly other sources of income. Furthermore, the Tribunal has real doubts that her Sponsor was actually assisting her in terms of her dependency and indeed whether he could actually afford to do so which have not been answered by the evidence before the Tribunal.”

9. The appeal was dismissed.

The challenge to the First-tier Tribunal’s decision

10. The grounds contend that the judge erred in law by making a mistake of material fact which could be established by objective and uncontentious evidence, in circumstances where the appellants and their advisers were not responsible for the mistake, and where fairness resulted from the fact that the mistake was made. The grounds contend that Mr Butt was not the first appellant’s uncle but a middleman through whom money was transferred by Munir Ahmed Shahid, who was said to be the first appellant’s uncle based in Germany. The money sent by Mr Shahid was not sent on a regular basis but only when the appellants required additional financial support to meet the children’s extra needs such as paying their educational admission fees etc. This “mistake” further explains why the sponsor did not know who Mr Butt was.

11. The grounds further contend that the judge erred in finding that the first appellant would not have been candid about significant sums of sponsorship coming from elsewhere in the UK. The evidence from the appellants and the sponsor was said to be perfectly credible and that the 1st appellant was open about the evidence of money transfers from Mr Butt. She was not hiding the fact of this transfer by the very fact that the money remittance slips were contained in her bundle of documents.

12. In his oral submissions Mr De Ruano submitted that the main concern with the decision was the lack of reasoning and the absence of any express finding whether the funds receiving by the appellants from the sponsor, despite there being evidence that she received funds from another source, were necessary for them to meet their basic needs.

13. Ms Ahmed accepted that the judge appeared to present a view of the case that was not advanced by the respondent (that the appellants manufactured a situation to give the appearance of dependency in an attempt to facilitate migration)m but this was not material and the judge’s decision, although concise, was sustainable and that the judge gave adequate reasons.

14. I reserved my decision.

Discussion

15. On the facts of this appeal the relevant conditions are contained in Reg 8(2). A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and –

(b) residing in a country other than the United Kingdom and is dependent upon the EEA national or is a member of his 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.

16. 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.

17. 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.”).

18. I am persuaded, albeit by a very narrow margin, that the judge’s decision does contains errors of law that ultimately render it unsustainable. In my judgment the judge has not adequately evaluated the evidence of the frequency and regularity of the funds remitted by the sponsor in relation to the limited evidence of funds received from Germany, he has not considered whether, despite receiving funds from another source, the appellants could still be dependent on the sponsor to meet their basic needs, and he has not given adequate reasons for disbelieving the 1st appellant’s evidence.

19. The 1st appellant’s evidence was that she only began to receive funds from her sponsor in August 2020. Of the two remittance slips relating to funds sent from Germany, the first was sent in May 2020, before the start of the sponsor’s claimed support. The only remittance slip sent from Germany after the claimed commencement of support by the sponsor is dated 14 December 2020. The very fact that the remittance slips were included in the appellants’ bundle of document does not, on its face, suggest that the 1st appellant was seeking to hide this evidence. Although not detailed in her written statement she appears to have been quite open in cross-examination concerning the origin of these particular funds, and her explanation was not inherently implausible. The judge however failed to make any clear findings in respect of the explanation given by the 1st appellant for the funds previously sent from Germany.

20. Nor am I satisfied that the judge has adequately engaged with the evidence of the regular and frequent funds remitted by the sponsor in reaching his conclusion that the appellants have an alternative source of income that was not disclosed. The amount and frequency of the remittances does, in conjunction with the appellants’ assertions regarding their dependency and the (albeit self-serving) evidence of their outgoings, support the appellants’ claim that they are dependent on the sponsor to meet their basic needs. Nor was there any adequate analysis by the judge as to whether, despite being sent funds from Germany on two occasions, the monies regularly sent by the sponsor were still necessary to enable the appellants to meet their basic needs. It is possible for a person or persons to receive separate funding from different sources, but for each separate funding to still be necessary to enable the basic needs of the person(s) to be met.

21. Whilst the judge was entitled to take into account the fact that the sponsor was not aware of Mr Butt when assessing whether he (the sponsor) was credible (the evidence that Mr Butt was a ‘middleman’ and that the funds actually came from another maternal uncle living in Germany was not before the judge and any factual mistake does not fall within the ‘error of law’ principle established in E & R v SSHD [2004] EWCA Civ 49), the judge additionally doubted the sponsor’s credibility because he was in receipt of Working and Child Tax Credits amounting to £615 every 4 weeks. Working Tax credit is for persons on a low income, and Child Tax credit supports families with children and is also dependent on a person’s income. This is potentially relevant to whether the sponsor is genuinely financially supporting the appellants, the fact that the sponsor is in receipt of these tax credits does not, of it self, mean that he is not financially capable of supporting the appellants, or that he does not genuinely intend to do so. I note that the tax credits received by the sponsor relate to two different employments (see paragraph 3 of his statement) and that he maintains that he earns almost £1,400 a month in total. The judge has not engaged with this evidence.

22. I am satisfied, for the above reasons, that the decision is marred by material errors of law. Given the lack of reasoning and the lack of material findings it is appropriate to remit the matter back to the First-tier Tribunal for a de novo hearing.

23. The appellants should ensure that the full and detailed copies of the 1st appellant’s bank statements covering the full period from January 2019 to date are provided to enable the First-tier Tribunal to assess the sources and nature of the income received by the appellants prior to the claimed commencement of support by the sponsor in August 2020.

Notice of Decision

The decision of the First-tier Tribunal contains an error on a point of law and is 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 Lal.

Signed D.Blum Date: 17 May 2022

Upper Tribunal Judge Blum