Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-000709
EA/04421/2020

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 9 March 2022
On the 22 June 2022

Before

UPPER TRIBUNAL JUDGE STEPHEN SMITH

Between

Mrs safia mohamed hirale
(ANONYMITY DIRECTION not made)
Appellant
and

THE ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr R. Solomon, Counsel, instructed by CNA Solicitors
For the Respondent: Mr D. Clarke, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal against a decision of First-tier Tribunal Judge F E Robinson (“the judge”) promulgated on 1 April 2021 dismissing an appeal brought by the appellant, a citizen of Somalia born in January 1960, against a decision of the respondent dated 29 July 2020 to refuse her application for an EEA family permit under the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”) as a “family member” under regulation 7(1)(c) of the regulations.

Factual background
2. The appellant applied for an EEA family permit from Saudi Arabia, where she lives, as the family member of her son-in-law Mr Ibrahim Hassan, a citizen of Luxembourg (“the sponsor”). The sponsor lives in this country with his wife, Ms Amal Arif, who is the daughter of the appellant. The basis of the application to the Entry Clearance Officer was that the appellant was financially dependent upon the sponsor, thereby satisfying the definition of an “family member” under regulation 7(2)(c) of the 2016 Regulations. She claimed to be reliant on the sponsor for her essential needs. Although the appellant was engaged in some work in Saudi Arabia, her case was that what she earned was not enough to meet her essential needs, and that she could only survive through her dependence on the sponsor. The Entry Clearance Officer did not accept the claimed family relationship between the appellant and the sponsor, nor that the limited evidence of financial support demonstrated a situation of “dependence” for the purposes of regulation 7(2)(c) of the 2016 Regulations.
Decision of the First-tier Tribunal
3. The judge heard oral evidence from the sponsor and Ms Arif at a remote hearing conducted on 17 March 2021. The respondent did not attend.
4. The judge’s operative reasoning started at [19], where she found that the appellant was Ms Arif’s mother, on the basis of DNA evidence relied upon by the appellant. There has been no challenge to that finding by the respondent.
5. At [20], the judge quoted from the Home Office guidance Free Movement Rights: direct family members of European Economic Area (EEA) nationals, version 9.0, published on 21 February 2020 (“the Home Office guidance”) at page 13 concerning dependency. At [21], she said this:
“I found the witnesses to be clear, consistent and credible in their evidence. I have seen a number of money remittances adduced in evidence from the sponsor and Ms Arif to the appellant. These cover a range of months from 2016 to February 2021. The majority of remittances and in particular those from 2017 are made using Amal Express (Amal UK Ltd) and range from approximately £50-£500 per transaction, with the majority in the mid-range. In addition there is a letter from Amal express (Amal UK Ltd) dated 8 March 2021 stating that the sponsor has been a customer for the last 2 years and that he has been sending family support averaging $251.87 (approximately £180) per transaction to the appellant in Saudi Arabia. The witness statements of the sponsor and Ms Arif refer to the sponsor sending around US $250-$500 (approximately £180-£360) per month to the appellant which is broadly in the same range as that indicated by the remittances and the letter from Amal express. For these reasons I attach due weight to the evidence which has been adduced and find that the sponsor is regularly sending money to the appellant in the region of £200 per month.”
6. Having directed herself concerning a number of the leading authorities concerning the concept of “dependency”, the judge said, at [23]:
“Whilst… under the [2016 Regulations] it is not necessary to establish that a sponsor’s financial support meets all the individual’s essential needs, there is no evidence corroborating Ms Arif’s account of how much the appellant and is, what she pays in rent and what she pays for utilities and other essentials. It is not enough, as held in Lim [Entry Clearance Officer (Manilla) v Lim [2015] EWCA Civ 1383], that financial support is provided by the appellant to the sponsor.”
7. The judge added at [24] that there was no further evidence to support the bald assertions in the sponsor’s and Ms Arif’s witness statements that they supported the appellant “both emotionally and financially”, and, consequently the judge was unable to make any findings in that regard, she said.
8. The judge’s global conclusion was at [25]: the evidence did not support a finding that the appellant was dependent upon the sponsor under regulation 7 of the 2016 Regulations. That being so, the appellant did not meet the definition of “family member” contained in regulation 7(2) of the 2016 Regulations, and the appeal fell to be dismissed.
Permission to appeal
9. The grounds of appeal contend that it was irrational for the judge to reject the appellant’s claimed evidence of dependency in light of her findings at [21] that the sponsor and Ms Arif were credible witnesses. Further or alternatively, in light of her finding as to the witnesses’ credibility, the judge failed to provide sufficient reasons as to why she rejected the witnesses’ evidence for a lack of corroborative evidence.
10. Permission to appeal was granted by Resident Judge of the First-tier Tribunal R C Campbell on the basis that it was arguable that the judge erred by requiring corroboration of evidence that had already been accepted.
Rule 24 response
11. The respondent relied on a response under rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the procedure rules”) dated 3 February 2022, the contents of which I shall address shortly. The rule 24 notice did not challenge the judge’s findings as to the family link between the appellant and Ms Arif.
Submissions
12. In a commendably thorough yet brief skeleton argument, and in his equally helpful oral submissions, Mr Solomon contended that if, as submitted by the rule 24 notice, the judge intended to confine her broader credibility findings at [21] to the past provision of financial support by the sponsor to the appellant, she would have said so expressly. The judge did not find either witness to have lacked credibility, as would have been required in order to reach the findings the judge went onto reach. The reader of the decision is left wondering why the judge rejected evidence that she had accepted, for want of corroborative evidence. Mr Solomon also submitted that it was procedurally unfair for the judge not to have put her concerns about the lack of corroboration to the witnesses at the hearing.
13. The appellant also sought to rely on further evidence under rule 15(2A) of the procedure rules. The evidence was primarily in the form of a statement by the appellant dated 23 February 2022 in which she sought to address the evidential deficiencies highlighted by the judge.
14. Mr Clarke developed the submissions contained in the rule 24 response; the judge reached findings of fact, having heard live evidence, that there was a paucity of evidence concerning the claimed dependency. It was open to the judge to reach those findings, and weight is a matter for the judge.
The law
The Immigration (European Economic Area) Regulations 2016
15. Regulation 7 of the 2016 Regulations defines “family member”:
7.— “Family member”
(1) In these Regulations, “family member” means, in relation to a person (“A”)—
(a) A's spouse or civil partner;
(b) A's direct descendants, or the direct descendants of A's spouse or civil partner who are either—
(i) aged under 21; or
(ii) dependants of A, or of A's spouse or civil partner;
(c) dependent direct relatives in A's ascending line, or in that of A's spouse or civil partner.
16. There is no dispute as to what is meant by the term “dependency”, nor that the Home Office guidance at page 13 accurately summarises the relevant considerations. In Entry Clearance Officer (Manilla) v Lim, Sedley LJ summarised the approach of the Court of Justice of the European Union to the concept in Reyes v Migrationsverket C-423/12, at [25]:
“In my judgment, this makes it unambiguously clear that it is not enough simply to show that financial support is in fact provided by the EU citizen to the family member. There are numerous references in these paragraphs which are only consistent with a notion that the family member must need this support from his or her relatives in order to meet his or her basic needs. For example, paragraph 20 refers to the existence of ‘a situation of real dependence’ which must be established; paragraph 22 is even more striking and refers to the need for material support in the state of origin of the descendant ‘who is not in a position to support himself’; and paragraph 24 requires that financial support must be ‘necessary’ for the putative dependant to support himself in the state of origin. It is also pertinent to note that in paragraph 22, in the context of considering the [Directive 2004/38/EC], the court specifically approved the test adopted in Jia [Jia v Migrationsverket Case C-1/05] at paragraph 37, namely that:
‘The need for material support must exist in the State of origin of those relatives or the State whence they came at the time when they apply to join the Community national.’”
Appeals on a point of fact
17. In these proceedings, the appellant challenges the judge’s finding of fact that she was not “dependent” for the purposes of regulation 7 on the sponsor. There are many authorities on the approach of an appellate tribunal our court to reviewing a first instance judge’s findings of fact. They were recently (re)summarised by the Court of Appeal in Volpi v Volpi [2022] EWCA Civ 464 in these terms:
“2. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:
i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb ‘plainly’ does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.
3. If authority for all these propositions is needed, it may be found in Piglowska v Piglowski [1999] 1 WLR 1360; McGraddie v McGraddie [2013] UKSC 58, [2013] 1 WLR 2477; Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, [2014] FSR 29; Henderson v Foxworth Investments Ltd [2014] UKSC 41, [2014] 1 WLR 2600; Elliston v Glencore Services (UK) Ltd [2016] EWCA Civ 407; JSC BTA Bank v Ablyazov [2018] EWCA Civ 1176, [2019] BCC 96; Staechelin v ACLBDD Holdings Ltd [2019] EWCA Civ 817, [2019] 3 All ER 429 and Perry v Raleys Solicitors [2019] UKSC 5, [2020] AC 352.”
18. See also R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at [9] for a summary of the principles contextualised for their application in this jurisdiction:
“i) Making perverse or irrational findings on a matter or matters that were material to the outcome ("material matters");
ii) Failing to give reasons or any adequate reasons for findings on material matters;
iii) Failing to take into account and/or resolve conflicts of fact or opinion on material matters;
iv) Giving weight to immaterial matters;
v) Making a material misdirection of law on any material matter;
vi) Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;
vii) Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.”
Discussion
19. It is necessary to address the appellant’s application under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to rely on new evidence. The evidence is in the form of a detailed statement from the appellant dated 23 February 2022 in which she sets out her family circumstances in Saudi Arabia, including nationality discrimination she and her husband are said to have experienced on account of not being Saudi citizens, leading to the loss of their formal employment, the revocation of their residence permits, and the steps they have sought to take in order to make ends meet, namely the provision of the sponsor’s support. The appellant fears being deported by Saudi Arabia to Somalia, where she considers her life would be in serious danger. The witness statement provides some additional details concerning her financial circumstances, including her income from cash in hand work (£190/month) and remittances from the sponsor (£320/month).
20. To rely on new evidence to controvert the findings of fact reached by a first instance judge, it is necessary to satisfy the well-known criteria enunciated in Ladd v Marshall [1954] 1 WLR 1489. The criteria are threefold. First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at trial. Secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive. Thirdly, the evidence must be apparently credible, though it need not be incontrovertible.
21. The rule 15(2A) application fails at the first hurdle: the new evidence could have been obtained with reasonable diligence for use at the First-tier Tribunal hearing.
Decision of the First-tier Tribunal not perverse
22. As Mr Solomon realistically recognised at paragraph 15 of his skeleton argument, the appellant faces a “very high hurdle” to demonstrate that the judge’s decision was perverse. Properly understood, the judge’s finding at [21] that the witnesses were clear, consistent and credible was only capable of going to her analysis of the past provision of financial support by the sponsor to the appellant, and their honest, subjective belief that a situation of dependency existed, for the following reasons.
23. First, so much is clear from an analysis of the structure of the judge’s decision. At [21], the judge was concerned primarily with the evidence of past financial support from the sponsor to the appellant. The judge did not direct herself concerning the leading authorities until the next paragraph, [22], following which she engaged in her core analysis that the appellant had not provided evidence of the claimed circumstances of dependency: [23]. I accept the respondent’s submissions that the judge’s findings as to the witnesses’ credibility were concerned primarily with her findings as to past financial support at that stage in her decision.
24. Secondly, bearing in mind that “an appeal court should not subject a judgment to a narrow textual analysis” (Volpi v Volpi at [2.vi]), even if the judge’s credibility findings were broader, the question of whether a situation of dependence existed was a multi-factorial assessment of law and fact, which was for the judge alone to assess. The appellant and the witnesses may have formed the genuine, subjective view that the sponsor’s support gave rise to a situation of dependency for the purposes of regulation 7(1)(c), but the mere fact they genuinely believed there to be a situation of dependence was not capable of determining the factual question of whether a situation of dependency existed. In that respect, it was not necessary for the judge to reach adverse credibility findings against the witnesses in order to reject the claims of dependency. Taken at their highest, the judge’s positive credibility findings, insofar as they related to the issue of present dependency, amounted to no more than findings that the witnesses and the appellant subjectively believed there to be a situation of dependency. Of course, the assessment of that issue was one for the judge alone, and she had legitimate concerns that insufficient evidence had been provided to demonstrate that the threshold had been met. The judge was in the dark about the appellant’s financial circumstances in Saudi Arabia, and, therefore, the extent to which she was “dependent”, within the meaning of regulation 9(1)(c), on the sponsor to meet her essential needs. The appellant bore the burden of proof; it was entirely reasonable for the judge to expect evidence of corroboration; in the absence of such further details, the judge was entitled to conclude that the appellant had not discharged the burden she bore of demonstrating that a situation of dependency existed.
25. In conclusion in relation to this ground of appeal, properly understood the judge did not reach a perverse conclusion.
Sufficient reasons given by the judge
26. It follows that, read as a whole, the decision of the judge disclosed sufficient reasons for approaching matters as she did. It may be that, as is the case with all judgments, the judge could have been clearer on this point (“[r]easons for judgment will always be capable of having been better expressed”: Volpi v Volpi at [2.vi]), but overall, the decision is tolerably clear. The judge accepted the evidence of the witnesses, but rightly did not treat their subjective views as to dependence to be determinative of her judicial assessment of whether a situation of dependency existed. She performed that assessment by reference to her unchallenged self-direction as to the law at [22], which is to be read as prefacing the analysis she proceeds to undertake at [23]. Read in that way, the reader of the decision is able fully to understand why the appeal was dismissed.
Hearing before the judge not procedurally unfair
27. I reject Mr Solomon’s submission that it was procedurally unfair for the judge not to have raised her concerns with the appellant at the hearing, thereby, it is said, providing her with the opportunity to address any perceived evidential deficiencies before the judge reached a decision. I accept that the requirements of procedural fairness can require a judge to raise with the parties any evidential concerns that have not been ventilated between the parties: see AM (Fair hearing) Sudan [2015] UKUT 656 (IAC) at [v] of the Headnote:
“Fairness may require a Tribunal to canvas an issue which has not been ventilated by the parties or their representatives, in fulfilment of each party's right to a fair hearing.”
However, the issue of dependence was a central issue in the proceedings, and the appellant could have been in no doubt as to the need to satisfy the tribunal of the existence of a situation of dependency. See, for example, the following extract from the fourth bullet point in the refusal letter dated 29 July 2020:
“Furthermore, you have provided no evidence to demonstrate yours [sic] and your family’s circumstances including your income, expenditure and evidence of your financial position which would prove that without the financial support of your sponsor your essential living needs could not be met.”
28. Properly understood, this ground of appeal contends that the judge should have given a running commentary of her likely reserved decision during the hearing. There is no basis in law to oblige the judge to do so, especially in the case of a legally represented litigant such as this appellant.
29. The hearing before the judge was not unfair.
Conclusion
30. The appeal is dismissed.

Notice of Decision

The decision of Judge Robinson did not involve the making of an error of law such that it must be set aside.

The appeal is dismissed.

No anonymity direction is made.

Signed Stephen H Smith Date 6 May 2022

Upper Tribunal Judge Stephen Smith