Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/04464/2019
EA/04466/2019, eA/04469/2019
EA/04470/2019, EA/04471/2019
EA/04472/2019

THE IMMIGRATION ACTS

Hearing at
Birmingham Civil Justice Centre
Decision & Reasons Promulgated
On 5th October 2021
On 24th January 2022

Before

UPPER TRIBUNAL JUDGE MANDALIA

Between

MRS MASOUMA AHMADI & OTHERS
Appellant
and

THE SECRETARy OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr P Haidar, AA Immigration Lawyers
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellants are all nationals of Afghanistan. The first appellant is the wife of Mr Kazim Ali Ahmed Ahmed Ali (“the sponsor”), a British Citizen. The second to sixth appellants are their children. On 2nd April 2019, the appellants applied for Residence Cards as the direct family members of a British Citizen, who has previously exercised treaty rights in Ireland. The respondent noted the appellants lived in Ireland with their sponsor. However the respondent was not satisfied that the residence in Ireland was genuine and concluded that the purpose of the residence in the EEA host country was as a means of circumventing the United Kingdom’s domestic immigration rules.
2. The appellants’ appeal against that decision was dismissed by First-tier Tribunal Judge I F Taylor for reasons set out in a decision promulgated on 8th January 2020. The appellants’ were granted permission to appeal by First-tier Tribunal Judge Froom on 22nd April 2020. Following a remote hearing on 6th August 2020, the decision of First-tier Tribunal Judge I F Taylor was set aside for reasons set out in a decision of Upper Tribunal Judge Pickup promulgated on 3rd September 2020. Upper Tribunal Judge Pickup directed that the decision will be remade, de novo, in the Upper Tribunal.
3. The appeal was listed for a resumed hearing before me on 5th October 2021. The respondent has filed a skeleton argument dated 17th August 2021. The respondent submits the incomplete evidence before the Tribunal regarding the sponsor’s employment in Ireland and the lack of any original documentation is such that the appellants are unable to demonstrate that the sponsor’s employment was genuine, or anything more than marginal and ancillary, or that the sponsor was exercising treaty rights in Ireland.
4. A skeleton argument settled by Ms Haidar has also been filed on behalf of the appellants. The appellants’ claim that sponsor has provided sufficient evidence to confirm he was employed in Ireland. There is evidence that he had been employed since 1st September 2015 and his employment was of a permanent nature. In addition, the appellants were in receipt of public funds in Ireland and that would only have been possible if their sponsor had been in employment.
5. The appellants appeal under the Immigration (EEA) Regulations 2016 against the respondent’s decision of 2nd August 2019 to refuse to issue them with residence cards on the basis that they are the direct family members of a British citizen who had previously exercised treaty rights in Ireland. It is for the appellants to show that there had been a genuine exercise of Treaty rights. Insofar as the respondent claims that the purpose of the residence in Ireland was a means for circumventing any immigration laws to which the appellants would otherwise have been subject, the burden is on the respondent to show that there was an abuse of rights.
The evidence
6. In readiness for the hearing before me, the appellant’s representatives have provided a ‘Supplementary Bundle’ comprising of some 257 pages. I also have in the papers before me, an appellant’s bundle comprising of some 515 pages that was received by the First-tier Tribunal on 9th October 2019 and relied upon by the appellants previously. At the outset of the hearing, Ms Haidar confirmed that the only oral evidence would be that of the sponsor. She confirmed that the first appellant and others who have made witness statements that are set out in the bundle, would not be giving oral evidence. At the hearing I heard evidence from the sponsor. He gave his evidence with the assistance of a Dari interpreter arranged by the Tribunal.
7. The sponsor adopted his witness statement dated 8th October 2019 that is to be found at pages 3 to 7 of the appellants’ supplementary bundle. He confirmed that he left Ireland on 27th August 2016 and the rest of his family left Ireland on 27th September 2016. He said that he left early because another of his sons, Mohammed Ahmadi, a British citizen living in the UK and who has mental health issues, was sick and needed support. After he left Ireland his family supported themselves from some money they had left. The sponsor confirmed that he started working for ‘Cell Sell Fix’ in September 2015 and had worked for that company for almost 7 months. He worked five or six hours each day, starting at 8am and finishing at 1 or 2pm. He was paid about €304 or €305 each week, rising to €313. He left that employment because the company was being sold and the following day he was able to arrange employment at a local grocery shop. That was in or about April 2016 and he worked at the grocery shop between 7 and 11am earning €200 or €220 weekly. He left that employment when his son who was living in the UK, started having health problems. He acknowledged that he was working under the terms of a fixed term contract that was due to expire on 10 April 2017. He said that although the employer was not happy that he was leaving there were no consequences for leaving early.
8. Before cross examination and to clarify matters I asked the sponsor to explain the reason that he moved to Ireland. He said, “to bring my children over”. I asked him whether there was any other reason and he replied “no”. I asked him why he did not simply apply for them to join him in the UK. He said that he had applied once before, for them to join him in the UK but nothing came of it. I asked him why he had chosen to go to Ireland. He said that in Ireland he had made an application and they had accepted it. I asked again whether the sole reason for going to Ireland was because he wanted to have his wife and children with him and he replied “yes”. He said that they did not have any plans for the future, but he wanted to settle with his wife and children. However because his son’s problems in the UK could become more serious, and there was no one to look after him, he returned to the UK. He said that whilst he was living in Ireland his son was being looked after by carers and all was also receiving assistance from the sponsor’s brother. I asked the sponsor why he had only been working limited hours in Ireland. He said the payments they received were enough for the family to live on, and there was no place there to work longer hours. I asked him what had happened in August 2016 that made him leave Ireland and he said that his son’s health had deteriorated, and he wanted to be with his son.
9. In cross-examination, the sponsor was asked how long he had thought about moving to Ireland. He said that “a few countrymen” suggested they go to Ireland to bring their families. He confirmed that he wanted to go to Ireland so his family could join him. He said that if his family could have come to the UK, he would have stayed in the UK. He said that the issues that his daughters faced in getting into schools, were issues faced by everyone and were resolved when they were of school age. He had made no prior enquiries about how his daughters would get into school before leaving for Ireland. He said that in Ireland he paid €650 rent each month. He was referred to the tenancy agreements at pages 206 to 212 of the respondent’s bundle. The first in time is a tenancy agreement for one month commencing 7th July 2015. The rent is said to be €800. The second is a tenancy agreement for a term of six months commencing 28th July 2015. The rent is said to be €650 per calendar month. The sponsor said it is possible that he paid €800 to begin with, and the rent then reduced to €650. The sponsor said that his wages were paid to him in cash and that he paid his rent in cash. Although he had a bank account in Ireland, he only sometimes deposited money into it. The sponsor was referred to the letter from ‘Sell Cell Fixes’ that is at page 179 of the respondent’s bundle. He was asked why the letter is dated ‘February 9 2015’ but he could offer no explanation. He said that the family lived a simple life. He accepted that the family may have been in debt when the letters that are at pages 253 and 254 of the respondent’s bundle from the University Hospital Limerick were put to him. The sponsor was shown a wage slip from his employment with ‘Sell Cell Fixes’ that is at page 174 of the respondent bundle. The wage slip is dated 24th January 2016 and it states that the cumulative taxable pay was €1700.16. It was put to him that that would represent earnings between September 2015 and 24th January 2016 and would equate to earnings significantly lower than the claimed earnings of €300 each week. The sponsor said that it is possible that the payslip is incorrect, and some mistake had been made. He maintained that he was earning over €1200 each month.
10. The sponsor was referred to the documents that appear at pages 191 to 194 of the respondents bundle that had been provided in support of the applications. The documents relate to the sponsors employment in Ireland. The first chronologically appears at page 194 and relates to employment said to have ceased on 27th January 2016. The start date of the relevant employment is not shown but the ‘Pay for PAYE from 1st January’ is said to be €1700.16. The second similar document at page 191 relates to employment that commenced on 28th January 2016 and ceases on 8th April 2016. The total ‘Pay for PAYE from 1st January’ is said to be €5654.32. The third similar document at page 193 relates to employment that commenced on 12th April 2016 and ceases on 18th September 2016. The total ‘Pay for PAYE from 1st January’ is said to be €11,103.15. The sponsor maintained that although there are three such documents that give the appearance of three different jobs, the only break in his employment that he could recall was when he took time off to travel to the UK when his son in the UK was having health problems.
Submissions
11. On behalf of the respondent, Mr Bates relied upon the respondent’s decisions dated 2nd August 2019. He submits the sponsor was surprisingly candid in his evidence that if his family could have joined him in the UK, he would not have left the UK. He submits that on the oral evidence of the sponsor, the Tribunal should find that it was never the sponsor’s intention to move to Ireland to genuinely exercise treaty rights. He submits the evidence of the sponsor establishes that no thought was given by the sponsor regarding his move to Ireland, and he candidly confirmed that he and his “fellow countrymen” decided that they should move to Iran so that their families can join them. There was no thought by the sponsor about how the family would support itself and how the children would access education in Ireland.
12. Mr Bates submits there remain concerns regarding the evidence relating to the sponsor’s employment in Ireland and the sponsor’s evidence regarding his employment is not supported by the evidence before the Tribunal. The sponsor accepts the family was in receipt of benefits in Ireland. The benefits received are shown in the bank statements, and the entries are repeated. Looking at the bank statements, the primary source of income for the family was the benefits they received. The employment was in all the circumstances marginal and ancillary. In any event, Mr Bates submits the Tribunal should find that the move to Ireland was nothing more than an attempt to circumvent immigration control.
13. On behalf of the appellants, Ms Haidar relied upon the skeleton argument filed on behalf of the appellants. She submits that in considering the evidence given by the sponsor, the Tribunal should have in mind the passage of time since the applications were made in 2015. It should also be noted that the sponsor is literate in both his native language and in the English language. Unsurprisingly, he could not understand the figures referred to in the documents before the Tribunal regarding his earnings. None of the discrepancies that the sponsor was referred to during the hearing, had been raised by the respondent in the underlying decisions.
14. Ms Haidar submits the sponsor is not a candid witness but a confused witness. He has been entirely honest and did not seek to embellish his account. She submits that in accordance with the relevant authorities, and in particular the decision of the Upper Tribunal in ZA (Reg 9. EEA Regs; abuse of rights) Afghanistan [2019] UKUT 00281 (IAC), there is no need for me to consider why the family moved to Ireland and why they subsequently left. Importantly, she submits, there is no doubt that the appellants entered Ireland lawfully and were granted the relevant residence cards. The Irish authorities would only have done so if they were satisfied that the sponsor was properly exercising treaty rights in Ireland. Ms Haidar submits that at pages 453 onwards of the appellants’ bundle there is a wealth of evidence regarding the mental health of the sponsor’s son, Mohammed Ahmadi, who is a British citizen and lives in the UK. It can be seen from what is said in the third paragraph of the letter dated 7th October 2019 (page 453 of the appellants’ bundle) from Dr Sofia Pappa, a Consultant Psychiatrist, that the appellants moved to the UK specifically for the purpose of supporting Mohammed. It is said that he has responded well to the support and was making good steady progress up to the point whereby the family’s request to remain in the UK was declined. Mohammed was adversely affected by that outcome.
15. Ms Haider accepts there is nothing in the medical evidence before the Tribunal that shows any particular episode in August/September 2016 that caused the sponsor to return to the UK to support his son, but she submits, there is no doubt that his son has mental health issues that are of some severity. Ms Haidar submits the reasons for returning to the UK were twofold and at page 264 of the appellants’ bundle there is a letter from the ‘Christ Church’ dated 10th February 2016 which confirms that for the past three months [BA] had been attending maths and English classes on Tuesdays and Wednesdays in the church. That supports the claim that she was unable to secure a place in a mainstream school. Ms Haider accepts there is nothing in the appellant’s bundle from the Irish authorities confirming that school places were not available for the children. She submits the appellants have provided evidence of the children’s schooling in Ireland, proof of residence in Ireland in the form of the tenancy agreements and documents confirming registration with GPs. She submits there is evidence of the sponsor’s employment in Ireland and insofar as the respondent questions whether the employment of the sponsor was genuine, it is clear from the evidence that the sponsor worked for two different employers. He has provided confirmation of that employment and provided relevant wage slips.
Findings and conclusions
16. Insofar as is relevant, Regulation 9 of the EEA Regulations 2016 provides
9.— Family members and extended family members of British citizens
(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member (“F”) of a British citizen (“BC”) as though the BC were an EEA national.
…
(2) The conditions are that—
(a) BC—
(i) is residing in an EEA State as a worker, self-employed person, self-sufficient person or a student, or so resided immediately before returning to the United Kingdom; or
…
(b) F or EFM and BC resided together in the EEA State;
(c) F or EFM and BC's residence in the EEA State was genuine
(d) F was a family member of BC or EFM was an extended family member of BC during all or part of their joint residence in the EEA State; and
(e) genuine family life was created or strengthened during F or EFM and BC's joint residence in the EEA State.
(3) Factors relevant to whether residence in the EEA State is or was genuine include—
(a) whether the centre of BC's life transferred to the EEA State;
(b) the length of F or EFM and BC's joint residence in the EEA State;
(c) the nature and quality of the F or EFM and BC's accommodation in the EEA State, and whether it is or was BC's principal residence;
(d) the degree of F or EFM and BC's integration in the EEA State;
(e) whether F's or EFM's first lawful residence in the EU with BC was in the EEA State.
(4) This regulation does not apply—
(a) where the purpose of the residence in the EEA State was as a means for circumventing any immigration laws applying to non-EEA nationals to which F or EFM would otherwise be subject (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom)
…

17. In ZA (Reg 9. EEA Regs; abuse of rights) Afghanistan [2019] UKUT 00281 (IAC), the Upper Tribunal reviewed the authorities in relation to the correct interpretation of Regulation 9 of the Immigration (European Economic Area) Regulations 2016. Having noted the obligation on Courts and Tribunals to construe domestic legislation consistently with EU law, the Upper Tribunal summarised the position in the headnote as follows:
“(i) The requirement to have transferred the centre of one's life to the host member state is not a requirement of EU law, nor is it endorsed by the CJEU.
(ii) Where an EU national of one state ("the home member state") has exercised the right of freedom of movement to take up work or self-employment in another EU state ("the host state"), his or her family members have a derivative right to enter the member state if the exercise of Treaty rights in the host state was "genuine" in the sense that it was real, substantive, or effective. It is for an appellant to show that there had been a genuine exercise of Treaty rights.
(iii) The question of whether family life was established and/or strengthened, and whether there has been a genuine exercise of Treaty rights requires a qualitative assessment which will be fact-specific and will need to bear in mind the following:
(1) Any work or self-employment must have been "genuine and effective" and not marginal or ancillary;
(2) The assessment of whether a stay in the host state was genuine does not involve an assessment of the intentions of the parties over and above a consideration of whether what they intended to do was in fact to exercise Treaty rights;
(3) There is no requirement for the EU national or his family to have integrated into the host member state, nor for the sole place of residence to be in the host state; there is no requirement to have severed ties with the home member state; albeit that these factors may, to a limited degree, be relevant to the qualitative assessment of whether the exercise of Treaty rights was genuine.
(iv) If it is alleged that the stay in the host member state was such that reg. 9 (4) applies, the burden is on the Secretary of State to show that there was an abuse of rights.
18. In her decisions of 2nd August 2019, the respondent considered the purpose of the appellants’ residence in Ireland with their sponsor. The respondent did not accept the residence in Ireland was genuine and considered that the purpose of the residence was as a means of circumventing the UK’s domestic immigration rules.
19. Restrictions on the rights of free movement, derived or otherwise, may be restrained on limited grounds only, including where there is abuse of rights or fraud. Where Regulation 9 applies, the British citizen sponsor is treated as holding a valid passport issued by an EEA state other than the United Kingdom so that the family member(s) may exercise the same rights of residence as a family member of any EEA national. The benefit that Regulation 9 confers is not available where Regulation 9(4) applies. That is, where the purpose of the residence in the EEA State was as a means for circumventing any immigration laws applying to non-EEA nationals to which the family member would otherwise be subject.
20. The oral evidence of the appellants’ sponsor is set out in the record of proceedings. It is impractical for me to refer in this decision to all the evidence that is before the Tribunal. For the avoidance of any doubt, in reaching my decision I have had regard to all of the evidence before me whether that evidence is expressly referred to or not, in this decision. I have carefully read the witness statements of the first appellant dated 8th October 2019 (pages 8 to 11 of the supplementary bundle) and the statements of [BA] and [RA] that are at pages 12 to 16 of the appellants’ supplementary bundle. The weight I attach to their evidence is reduced by the fact that they did not attend the hearing before me, and I have had no opportunity to see their evidence tested in cross examination. Where the written evidence in the witness statements before me is at odds with the oral evidence of the sponsor, I prefer the oral evidence of the sponsor.
21. In reaching my decision I have considered whether the evidence of the appellants and sponsor is internally consistent and consistent with any other relevant evidence. I have had the opportunity of hearing the sponsor give evidence and of seeing that evidence tested in cross-examination. In considering the evidence, I have borne in mind the fact that events that occurred some time ago, can impact on an individual’s ability to recall exact circumstances. I also recognise that there may be a tendency by a witness to embellish evidence because although the core of the claim may be true, he/she believes that by embellishing their evidence, the claim becomes stronger. I also remind myself that if a Court or Tribunal concludes that a witness has lied about one matter, it does not follow that they have lied about everything.
22. I have carefully considered the evidence of the appellants’ sponsor who I found to be a credible witness and someone that was entirely candid in his oral evidence before me. I do not accept, as Ms Haidar submits, that he was confused. It can be unrealistic to expect an honest person who has previously led a relatively simple life to give an entirely coherent account of matters such as their earnings from memory, particular when asked about such matters on different occasions months and years after the events. That is in contrast to answers given in response to questions about why a particular course was adopted where the witness is not relying upon memory to recall a particular event but is providing an explanation for why he/she took a particular step or adopted a particular course.
23. There is no doubt that the appellants, all of whom are Afghan nationals are related to the sponsor as claimed. Mr Ali was married to the first appellant in Afghanistan on 21s April 1988. The second appellant, [LA] was born in Afghanistan on 27th March 1997 (page 152 of the respondent’s bundle). The third appellant, [MRA] was born in Afghanistan on 8th October 1999 (page 154 of the respondent’s bundle). The fourth appellant, [BA] was born in Afghanistan on 24th June 2001 (page 160 of the respondent’s bundle). The family fled from Afghanistan to Iran and Mr Ali left Iran and arrived in the United Kingdom in 2001. He was granted indefinite leave to remain in 2002. The first appellant remained in Iran with the second, third and fourth appellants. She subsequently returned to Afghanistan. The fifth appellant, [MA] was born in Afghanistan on 9th February 2005 (page 158 of the respondent’s bundle) and the sixth appellant, [MHA] was born in Afghanistan on 14th May 2007 (page 156 of the respondent’s bundle).
24. In his witness statement, the sponsor states that he applied for his wife and children to join him in the UK in 2007, while they were living in Iran. He states that the visas were granted, but the Visa centre was closed, and so the appellants could not obtain their visa’s. The first appellant was fed up with the situation and returned to Afghanistan.
25. In June 2015 Mr Ali travelled to Ireland. The sponsor’s evidence is that he started working in Ireland for ‘Sell Cell Fixes” as a sales assistant between 1st September 2015 and April 2016. He then worked for ‘Limerick Food Store’ as a sales assistant between 11th April 2016 and 26th August 2016. The sponsor was joined in Ireland by the appellants, his wife and children, on 10th July 2015. The appellants had been issued with documentation permitting their entry to Ireland, valid from 10th June 2015 until 9th September 2015. During their time in Ireland, the family lived in rented accommodation at two different addresses in Limerick. The appellants were all issued with residence cards by the Irish authorities on 10th August 2016 valid until 22nd April 2019.
26. The sponsor returned to the UK with the third appellant, MRA, on 27th August 2016. The sponsor claims he left Ireland because another of his sons, Mohammad Ahmadi (born 1st January 1990) and who is a British Citizen has Bipolar Affective Disorder. It is said in the sponsor’s witness statement that his son was sectioned and those treating him asked the family to return to the UK as he needed a carer. The sponsor and MRA were joined in the UK by the remaining appellants on 27th September 2016.
27. On return to the United Kingdom, the appellants applied for residence cards under the Immigration (European Economic Area) Regulations 2016 ("the EEA Regulations 2016"). The chronology prepared by the appellants representatives refers to an application made on 15th February 2017 which was refused by the respondent on 15th August 2017. It appears that the appellants made a further application for residence cards on 2nd April 2019, and it is the refusal of those applications on 2nd August 2019 that are the subject of the appeal before me.
28. I should record from the outset that the respondent does not refer to the previous application and refusal of that application in her decision dated 2nd August 2019. At pages 286 to 290 of the respondent’s bundle, there are copies of the Statutory Declarations made by the sponsor and first appellant in support of the most recent applications. They both state:
“Previous refusals
The Secretary of State has previously refused [the appellants’] application for residence cards on grounds that we intend to circumvent immigration rules.
I confirm we appealed against the decision however we were not advise (sic) adequately with regards to putting our case across. We did not submit our sons medical circumstances we did not submit evidence of the fact that my wife had previously been granted a visa to the UK. We had genuine reasons to leave Ireland.”
29. At paragraph [15] of his witness statement dated 8th October 2019, the sponsor states: “.. The Secretary of State has previously refused my wife and children’s application for residence cards on grounds that we intended to circumvent the immigration rules.”. Neither the respondent nor the appellants have put before me any evidence regarding any previous application or a copy of any decision of the Tribunal dismissing any appeals against a prior refusal. I am unable therefore to use any previous decision of the Tribunal as a starting point and for the avoidance of doubt, I have considered all relevant issues for myself.
30. In summary, I find that the sponsor moved to Ireland so that he could be reunited with the appellants, and that the intention of the move to Ireland was to artificially create the conditions laid down for acquiring entry to the UK via the 2016 EEA Regulations and by circumventing the immigration rules. The sponsor is unable to provide any clear evidence as to why he had decided to go to Ireland. There is no evidence before me of the sponsor’s employment history and connections to the UK, and in the absence of evidence regarding the sponsor’s life in the UK, I am not prepared to accept, without more, the bare assertion from the sponsor, that he moved to Ireland in the hope of a better future. The reasons that he gives in his witness statement are inconsistent with his oral evidence before me. Before me, he was given every opportunity to set out his reasons for wanting to live in Ireland, but at no stage did he claim that he wanted to move to Ireland in the hope of a better future and because of any breakdown in his relationship with his brothers in the UK.
31. In his witness statement, the sponsor claims he moved to Ireland to take up a job opportunity and to exercise treaty rights there. At paragraph [13] of his statement, he claims that he moved to Ireland in the hope of a better future. His brothers were all in the UK and they had fallen out. He claims he wanted to start afresh with his family and considered Ireland to be the best place. He claims in his witness statement that he had friends who were living there, and they spoke highly of the quality of life in Ireland. However, his oral evidence before me was inconsistent with what is said in the written statement. He was very clear that he had moved to Ireland simply so that he could bring his wife and children to live with him. He was clear in his evidence that there was no other reason and that he had previously made an application for his wife and children to join him in the UK, but nothing came of it. His evidence in his statement that his brothers are all in the UK and they had a ‘fall out’, is at odds with his oral evidence that his brother continued to assist with the care of his son whilst the sponsor was in Ireland. In cross-examination, he was equally clear that the idea of moving to Ireland was suggested by Afghan friends who suggested that they should move to Ireland and bring their families to Ireland. He had moved to Ireland so that his family could join him. He confirmed that if his family could have come to the UK, he would have stayed in the UK. The claim made in the witness statement that he moved to Ireland to take up a job opportunity was not a claim that he made in his oral evidence before me. Furthermore there is no evidence whatsoever before the Tribunal of a job opportunity that was open to the appellant in June 2015. In fact, the evidence before the Tribunal is that the sponsor did not commence work until sometime later in September 2015. Where the oral evidence of the sponsor is inconsistent with the evidence set out in his written statement, I prefer the oral evidence that he gave, and I attach great weight to that evidence.
32. There is no evidence before the Tribunal of any of the friends living in Ireland that the sponsor refers to in his witness statement, and who encouraged the move to Ireland. In his oral evidence he did not at any stage claim that he wanted a fresh start with his family, and he was unable to explain why he had chosen to live in Ireland rather than any other member state. His evidence was that fellow countrymen had suggested the move to Ireland so that their families could join them. There is no evidence of any discussion with the first appellant. In her witness statement the first appellant simply claims that as an Afghan woman, she follows what her husband says and does. She states it was not her place to ask why they were moving to Ireland, but she was of course happy that the family would be together and in a safer country. Given the sponsor’s lack of skills and lack of discussion between the sponsor and first appellant, it is surprising that he moved to Ireland without any clear plan.
33. I accept that the sponsor lived in Ireland for about 14 months and that he lived in Ireland with the appellants between July 2015 and August 2016, and that they lived in rented accommodation. There is a tenancy agreement at pages 211 and 212 of the respondent’s bundle relating to a tenancy for one month at a property in Limerick. The rent is said to be €800 per calendar month. There is a further tenancy agreement at pages 206 to 2010 of the respondent’s bundle relating to a tenancy for a term of six months, again for a property in Limerick. The rent is said to be €650 per calendar month. In his evidence the sponsor was consistent in his claim that he paid rent of €650 per calendar month in cash. Although the sponsor had no clear recollection of paying €800 in rent, I accept his evidence that it is possible that he paid €800 to begin with, and the rent then reduced to €650 when the family moved.
34. I also accept the evidence of the sponsor that he worked for ‘Sell Cell Fixes’ between 1st September 2015 and April 2016 and that he worked for Limerick Food Store between 11th April 2016, and his departure from Ireland at the end of August 2016. The sponsor was able to secure employment with Limerick Food Store, on his account, the day after he was told by his previous employer that they intended to sell the company. The sponsor has provided, at pages 43 to 44A of the appellants’ bundle, a copy of a fixed term contract of employment with Limerick Food Store. The contract of employment is said to commence on 11th April 2016 and to expire on 10th April 2017. The sponsor is contracted to work 25 hours per week and paid €9.15 per hour. The contract of employment makes provision for the appellant to provide notice in the event that he wishes to terminate his employment as set out in legislation. The sponsor however accepted in his evidence before me that no such notice was provided to his employer and in cross-examination, he accepted that no consequences followed. I find that the family supported itself from the limited income received from a combination of the income received from the sponsor’s employment and the benefits they received in Ireland. Although it was put to the sponsor that his claimed income was substantially higher than that shown in the documents at pages 191 to 194 of the respondent’s bundle, I am satisfied that is not the case. At page 194 there is a document relating to employment that is said to have ended on 27th January 2016. The ‘Pay for PAYE from 1st January’ is said to be €1700.16 and plainly covers the period 1st January 2016 to 27th January 2016, rather than 1st September 2015 to 27th January 2016 as was put to the sponsor.
35. There is, as Ms Haidar submits, evidence before me regarding the mental health of the sponsor’s son, Mohammed Ahmadi, who has been under the care of the ’Recovery East Team, West London NHS Trust’ for several years. It is clear, and I accept, that he has a long-standing diagnosis of severe and enduring mental illness namely bipolar affective disorder which has often required hospitalisation. I accept that he relies on his family for ongoing practical and psychological support. The letter dated 7th October 2019 from Dr Sofia Pappa, a Consultant Psychiatrist that is at page 453 of the appellants’ bundle states: “.. His mother and sister moved to the UK specifically for the purpose of supporting Mohammed..”. The sponsor’s evidence that he moved to Ireland in the hope of a better future, is difficult to reconcile with the medical evidence regarding his son’s health and the on-going treatment that he was receiving in the UK and the support he required. In my judgment, the sponsor would have wished to remain available for his son to continue to provide the support he requires. The first appellant in particular, appears to have provided a good deal of support to Mohammed Ahmadi since her arrival in the UK. It is said by Dr Sofia Pappa that Mohammed Ahmadi has responded well to the support he has received and was making good steady progress up to the point whereby the family’s request to remain in the UK was declined. It was in my judgment always the plan that the appellants would live in the UK and provide the support required.
36. Ms Haider accepts there is nothing in the medical evidence before the Tribunal that shows any particular episode in August/September 2016 that caused the sponsor to return to the UK to support his son. I accept that at page 264 of the appellants’ bundle there is a letter from the ‘Christ Church’ dated 10th February 2016 which confirms that for the past three months [BA] had been attending maths and English classes on Tuesdays and Wednesdays in the church. Again, Ms Haider accepts there is nothing in the appellant’s bundle from the Irish authorities confirming that school places were not available for the children. In his oral evidence before me, the sponsor said that the issues that his daughters faced in getting into schools, were issues faced by everyone and were resolved when they were of school age.
37. The appellants point to the residence cards granted to them by the authorities in Ireland and claim that once in possession of a residence card in Ireland, that is sufficient to establish that the sponsor was properly exercising treaty rights in Ireland, and they subsequently acquired a right of entry to the United Kingdom. In my judgment neither the underlying Directive nor the Regulations confer on a person a right of entry where that person has no right to come to the UK. In Benjamin v SSHD [2016] EWHC 1626 (Admin), Lang J said:
"83. Accordingly, while McCarthy establishes that it is unlawful for the Defendant to insist on the possession of an EEA family permit by a family member of a UK citizen seeking to enter the UK, where that family member holds a valid residence card under Article 10 of the Directive, it remains lawful for the Defendant to determine, before granting entry, whether the family member in question in fact fulfils the conditions for entry provided by EU law. The legal position as clarified in McCarthy is reflected in regulations 11(2)(a) and (19)(2)(b) of the 2006 Regulations, which together make clear that the family member of an EEA national may be admitted to the UK on presentation of a valid passport and a 'qualifying EEA state residence card', but only provided that the EEA national has a 'right to reside in the United Kingdom under these Regulations'. The relevant regulation in this case was Regulation 9."
38. The mere possession of Irish residence permits did not provide the appellants with a right to reside with the sponsor in the UK. Although I am prepared to accept that the nature of the sponsor’s employment and accommodation in Ireland was such that it was "genuine" in the sense that it was real, I find that the appellants gain no assistance from Regulation 9 because the residence in Ireland had been a means of circumventing the United Kingdom immigration laws to which the appellants would otherwise be subject, as non-EU nationals.
39. In reaching my decision I have borne in mind throughout that the burden rests upon the respondent when it is alleged that the purpose of the residence in the EEA State was as a means for circumventing any immigration laws. I am satisfied that the burden has been discharged by the respondent. Looking at all the evidence before me in the round, I find it was always the intention of the first appellant and her sponsor that following a short period in Ireland, the family would return to the UK to continue their lives together in the UK. On the appellants’ own case, there had previously been an application made for entry clearance in or about 2007 when they were in Tehran, which it seems was granted, but in the end came to nothing, and led to the appellants returning to Afghanistan. Ms Haider was unable to point me to anything in the wealth of medical evidence before me to satisfy me that there was some unexpected reason for the sponsor to return to the UK and remain here, and for the appellants to join him here when they did. It is in my judgement clear that against that background and in light of the findings that I have made above, and discussions that the sponsor had with other Afghan nationals, that the sponsor formed the view that it would be easier for the appellants to join him in Ireland, and after a short period there, to return to the United Kingdom with them. I am satisfied that the respondent has established that there had been an abuse of rights and the sponsor’s motivation for the residence and employment in Ireland was, I find, to circumvent the Immigration Rules.
40. Accordingly, I am satisfied that Regulation 9 does not apply and the appeal is dismissed.
Notice of Decision
41. The appeals under the Immigration (European Economic Area) Regulations 2016 are dismissed.

V. Mandalia
Upper Tribunal Judge Mandalia 29th December 2021