Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/05267/2019(V)

THE IMMIGRATION ACTS

Heard remotely at Field House
Decision & Reasons Promulgated
On 19 November 2021
On 24 January 2022

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

[S M B]
(anonymity direction made)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:

For the Appellant: Ms E King, instructed by Rahman & Co Solicitors
For the Respondent: Ms A Everett, Home Office Presenting Officer

This has been a remote hearing which has been consented to by the parties. The form of remote hearing was video by Skype (V). A face to face hearing was not held because it was not practicable and all issues could be determined in a remote hearing. The documents referred to are in the bundles on the court file, the contents of which I have recorded. The order made is described at the end of these reasons.

DECISION AND REASONS
1. The appellant is a citizen of Pakistan born on 8 June 1976. He appeals against the decision of First-tier Tribunal Judge Beach promulgated on 6 April 2021 dismissing his appeal against the refusal of a family permit to enter the UK under the Immigration (EEA) Regulations 2016 as an extended family member of Mohammad Jameel Begum [‘the sponsor’] who has lived in the UK since 3 May 2014.
2. The respondent was not represented at the hearing before the First-tier Tribunal. The appellant was represented by Ms King. The sponsor and the appellant’s cousin, Aqeel Nawaz, gave evidence. The judge accepted there was sufficient documentary evidence to show the appellant was the sponsor’s cousin. However, she did not accept the appellant was dependent on the sponsor because the source of the payments to the appellant were unclear and she had concerns about the evidence of Mr Nawaz who claimed he supported the appellant from 2018 to January 2019. Mr Nawaz’s oral evidence was inconsistent with his witness statement and there was no explanation for why he did not continue to support the appellant when he resumed employment.
3. There was a list of transfers of money from the sponsor to the appellant from March 2019 to December 2020. The judge found this demonstrated the sponsor sent money to the appellant but it did not show the source of the money sent. The judge analysed the sponsor’s and appellant’s bank statements in detail. She found there were no direct transfers from the sponsor’s bank statements and the cash withdrawals did not correspond with the list of money transfers. She identified three cash withdrawals which could potentially correspond with the money transfers. There were no deposits in the appellant’s bank account and the breakdown of his living expenses did not show that his income came from the sponsor. The sponsor’s bank statements did not cover the whole period of the transfers to the appellant and showed unexplained cash payments into the account from M Butt.
4. At [31], the judge concluded, “I find that the appellant has not shown he is financially dependent on the EEA sponsor. The source of the funds for the transfers is not clear to me. I find that the evidence provided by the appellant does not show that the funds he received come directly from the EEA sponsor or that he is dependent upon the sponsor. There was no suggestion the appellant was a member of the sponsor’s household.”
5. The grounds submit that the judge erred in law because dependency in EEA law did not have to be from necessity. Whether Mr Nawaz could have resumed supporting the appellant was immaterial. The judge failed to properly direct herself following Reyes (EEA Regs: dependency) UKUT 00314 (IAC) and failed to consider whether the evidence of cash withdrawals which did correspond to the money transfer receipts were sufficient to show the appellant was dependent on the sponsor for his essential needs, notwithstanding someone else may provide additional funds.
6. Further the judge, made no finding on the sponsor’s credibility or why his evidence required corroboration. The point about third party funding was not raised in the refusal notice and was not put to the sponsor at the hearing. In the interests of fairness, the sponsor should have had the opportunity to comment on this. In any event, even if funds had been transferred into the sponsor’s account, the appellant could still establish dependency on the sponsor.
7. Permission to appeal was granted by First-tier Tribunal Judge Nightingale on 24 May 2021 for the following reasons:
“The judge gave a detailed consideration to the documentary evidence submitted. The Judge was entitled to conclude that it had not been shown by the documentary evidence that the money sent to the appellant came from the sponsor’s bank account, However, it is arguable, if only just, that the Judge failed to make any direct finding on the credibility of the oral evidence heard from the sponsor and the further witness. This ground is arguable. It was also arguable that the Judge erred in failing to find whether the money sent to the appellant was used by him and, if so, for what purpose. These grounds are arguable and permission is granted on the grounds pleaded.”

Submissions
8. Ms King submitted there was no express finding on the oral evidence and problems with the judge’s reasoning. The point that the money came from a third party was not put to the sponsor for comment and was not raised in the refusal notice. In the absence of a presenting officer, the judge should have voiced her concerns about the source of the funds. There was no opportunity for the sponsor or the appellant to explain because it was not seen to be an issue. This point was so intertwined with the judge’s reasoning about the insufficiency of evidence to trace the movement of funds that it tainted the whole of the judge’s findings. In addition, the judge failed to consider whether the deficiencies in the documentary evidence could be remedied by the oral evidence. As a matter of fairness, the appellant and sponsor should have been given an opportunity to explain.
9. Ms King submitted that, even if the sponsor was receiving support from a third party, this did not mean the appellant was not dependent on the sponsor. The judge’s reasoning was inadequate. The sponsor should have been asked how he used the third party funds. In response to a question from me, Ms King submitted that even though the appellant’s bank statements did not show the funds going in, there was evidence in the supplementary witness statement to show that the appellant spent the money on groceries for his wife and three children. The invoices and receipts provided were sufficient to show the funds were used to meet the appellant’s essential needs, given there was no other source of income in the bank statement. When all the evidence was taken together it corroborated the oral evidence.
10. Ms King submitted the judge’s failure to make proper findings on the oral evidence was critical because, in totality, there was sufficient evidence. The lack of explanation from Mr Nawaz as to why he did not resume responsibility for the appellant was not material. Dependency did not have to be out of necessity and the appellant could rely on the transfer of responsibility.
11. Ms Everett submitted that there was no material error in the decision. The judge’s findings were open to her even if some of the issues taken against the appellant were not put to the sponsor. The remaining grounds did not demonstrate an error of law. In response, Ms King submitted the errors were material and the hearing should be adjourned to a later date for rehearing.

Conclusions and reasons
12. It is clear from the refusal notice that the limited evidence submitted with the application did not show the appellant was dependent on the sponsor or that the sponsor was in a position to be able to provide financial support. There were no bank statements submitted with the application. The appellant was represented at the hearing before the First-tier Tribunal and further documentary evidence, including bank statements were submitted.
13. It is apparent on the face of the documentary evidence that the sponsor’s bank statements did not show payments out to the appellant, but did show payments in. There was no explanation for this at the hearing before the First-tier Tribunal notwithstanding the appellant was represented. The burden is on the appellant to show he is dependent on the sponsor. There was no obligation on the judge to request further information given the appellant had the benefit of legal advice in presenting his case. On the facts of this case, there was no unfairness in the conduct of the proceedings. There was no explanation in the grounds or in submissions before me for the payments into the sponsor’s bank statement from ‘Butt M’ and ‘M Butt Butt’ in August 2019, December 2020 and January 2021 totalling £475.
14. It is the appellant’s case that he became dependent on the sponsor in March 2019. Prior to that he was dependent on Mr Nawaz. It is clear from the refusal notice that the appellant has to produce sufficient documentary evidence to support his claim. The documentary evidence before the judge was insufficient because it failed to show that the sponsor provided the funds used to make the transfers to the appellant. There were no direct payments to the appellant from the sponsor’s bank account and the cash withdrawals did not correspond with the list of money transfers. At best the judge identified three possible cash withdrawals which may be linked with a money transfer, but even then the amounts did not correspond or the transfer was made nearly a month after the withdrawal. There was only one cash withdrawal in July 2019 which could be linked to the corresponding transfer for that month. There was nothing in the sponsor’s witness statement or his oral evidence to remedy this deficiency.
15. The judge did not find Mr Nawaz to be a credible witness because the account given in oral evidence was different to that in his witness statement. The judge gave adequate reasons at [30] for why she attached little weight to his evidence. Any failure to make a finding on the credibility of the sponsor was not material because it is apparent from the decision that the judge considered the totality of the evidence before her.
16. On reading the decision as a whole, there was insufficient evidence before the judge to show the appellant was dependent on the sponsor for the purposes of Regulation 8. I find the judge’s findings were open to her on the evidence before her and she gave cogent reasons for her conclusions.
17. At the hearing, I expressed concern that the appellant had not shown dependency prior to the sponsor coming the UK and therefore the appellant’s presence in the UK did not affect the sponsor exercising free movement rights. It was agreed that the parties would provide written submission on this point. No submissions were received from the respondent.
18. I am grateful for Ms King’s submissions, in which she relied on SSHD v Rahman [2012] EUECJ C-83/11 (5 September 2012) to demonstrate that the appellant does not have to show he is dependent on the sponsor before the sponsor came to the UK. The Court considered a ‘dependant’ within the meaning of Article 3(2) of Directive 2004/38 and noted that the objective of that provision is to ‘maintain the unity of the family in a broader sense’ by facilitating entry and residence for persons who are not included in the definition of family member but who nevertheless maintain close and stable family ties with a Union citizen on account of specific factual circumstances.
19. I observe that the specific factual circumstances do not exist in this case and the appellant does not appear to have close or stable family ties with sponsor. However, given my findings above, these observations do not affect the disposal of this appeal.
20. I find there was no material error of law in the decision of 6 April 2021 and I dismiss the appellant’s appeal.

Notice of Decision
Appeal dismissed

J Frances

Signed Date: 31 December 2021
Upper Tribunal Judge Frances

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

J Frances

Signed Date: 31 December 2021
Upper Tribunal Judge Frances

_____________________________________________________________

NOTIFICATION OF APPEAL RIGHTS

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent:

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

6. The date when the decision is “sent’ is that appearing on the covering letter or covering email