Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-001729
UI-2022-001731

First-tier Tribunal No: EA/04673/2021
EA/04678/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 28 March 2023

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

HADI & MARYAM WAHEED
Appellants
and

ENTRY CLEARANCE OFFICER
Respondent

Decided under rule 34 without a Hearing On the 14 February 2023

DECISION AND REASONS
1. FtT Judge Fox dismissed the appellants’ appeals by a decision dated 28 December 2021.
2. On 7 April 2022, FtT Judge Nightingale granted permission:
The grounds argue the Judge erred by applying Chowdhury (Extended family members: dependency) [2020] UKUT 188 (IAC) as the appellants were abroad and were seeking to join their sponsor in the United Kingdom. It is also argued that the Judge erred by overlooking the evidence of money transfer remittances which covered the period January 2019 to November 2021. It is also argued that the Judge erred in failing to have regard to the medical evidence relating to the inability of the first appellant to take employment.
It is arguable that the Judge fell into error in the application of Chowdhury. However, in of itself, this was not determinative as the Judge went on to consider dependency in the alternative. It is arguable that the Judge failed to have regard to the evidence of money transfer remittances which ran from January 2019 to November 2021 stating that the evidence was not up-to-date (paragraph 30 refers). It is also arguable that the Judge failed to have regard to the medical evidence relating to the first appellant’s inability to take employment.
The remaining grounds are of less immediately identifiable arguable merit, but for the avoidance of doubt permission is granted on all grounds pleaded.
3. On 29 April 2022, in response to the grant of permission:
The respondent … accepts that the FTTJ materially erred in failing to consider the evidence of money transfers leading up to late 2021 as identified in the grounds. Likewise, it is accepted that the FTTJ appeared to misdirect himself as to the requirement of continued dependency in referring to Chowdhury. Further, the FTTJ failed to reason why the medical evidence failed to support any assertion that in light of it the appellants did not rely on the sponsor for their essential needs (rather than why).
Given the cumulative errors and failure to consider all the evidence it is the view of the SSHD that this matter should be remitted to the First-tier Tribunal to be heard afresh.
4. It is appropriate for the UT to decide on error of law and further procedure without a hearing, under rule 34.
5. The FtT has erred in law, as conceded. Its decision stands only as a record of what was before the tribunal. The case is remitted for a fresh hearing, not before Judge Fox.
6. No anonymity order has been requested or made.

Hugh Macleman
Judge of the Upper Tribunal, Immigration and Asylum Chamber
14 February 2023