Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: EA/05424/2016
EA/05425/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25th October 2017
On 21st November 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MAHMOOD

Between

Mr Zahid Hussain Shah
Miss Syed (aka Syeda) Kokab Riaz
(anonymity direction not made)
Appellants

And

ENTRY CLEARANCE OFFICER - UK VISA SECTION
Respondent

Representation:

For the Appellants: Mr S Mustafa, Counsel, instructed by Solicitors' Inn Ltd
For the Respondent: Ms R Pettersen, Senior Presenting Officer

DECISION AND REASONS

1. The Appellants before the First-tier Tribunal were (1) Mrs Zeeshan Akhtar, (2) Mr Zahid Shah, born on 2nd December 1983 and (3) Miss Syed (also referred to as Syeda in some of the paperwork) Riaz, born on 30th December 1998. The Sponsor was Mr Syed Riaz Hussain Bibi. He is the husband of Mrs Zeeshan Akhtar. The two other Appellants were their adult children. The Appellants had appealed against the Entry Clearance Officer's decision to refuse them entry clearance pursuant to Regulation 26 of the Immigration (EEA) Regulations 2006. It is only Miss Riaz's appeal which is before me today, but for reasons I shall explain below, I also refer to Mr Shah's matter.

2. The appeals had been listed before First-tier Tribunal Judge O'Hagan at Birmingham on 4th January 2017. The judge had considered the matter as requested on the papers and he had said in part in his decision as follows:

"12. I have considered whether the Appellants meet the conditions to be treated as family members for the purposes of paragraph 7 of the Regulations. The first Appellant is the Sponsor's spouse and so is a family member under paragraph 7(1)(a). I have seen a copy of the nikah nama, supported by a certified translation. In the case of the second and third Appellants, they are the Sponsor's children. To qualify under paragraph 7(1)(b), they must each show, firstly, that they are a direct descendant. That is not in dispute. They must also show that they are each under 21, or else a dependant ?",

and at paragraph 14:

"14. I am satisfied that the Sponsor is a qualified person, and that the first Appellant is a family member for the purposes of paragraph 7, and so I am satisfied that she is entitled to a residence card. I cannot be satisfied that the second and third Appellants are entitled to residence cards since they have not established that they are family members. Paragraph 17(1) obliges the Respondent to issue a residence card if the requirements are met. It has not been established that all the requirements are met",

Therefore, the position was that Mrs Akhtar's appeal was allowed and the appeals of the children, i.e. Zahid Shah and Syeda Riaz, were dismissed.

3. The two adult-child Appellants appealed against the FTT Judge's decision. Their applications for permission to appeal had come for consideration before Designated Judge Woodcraft on 23rd August 2017. He considered the grounds of appeal which said as follows (the grammatical mistakes are as in the original grounds of appeal):

"The Appellants had applied for family settlement visas according to the proscribed instructions and provided the necessitated documents along with the Visa Application Forms. The learned Visa Officer, however, has refused a grant of visas by raising certain objections/queries spelt out in his order dated 31/02/2016 which appear to be illogical and proves laxity on the part of the ECO as would be observed by examining the replies being submitted here under in seriatim. We did appeal against the refusal orders but the Judge of the First-tier Tribunal O'Hagan had again refused for my two children. He allowed the appeal for me the mother of the both children.

?

That the both Appellants are genuine persons to join the Sponsor (his real father) who is EEA national and working/settled in UK and he Sponsor is able to maintain and accommodate the Appellants and himself easily without recourse of public funds. So the Appellants fulfil the requirements of Regulation 27(1)(b) of the Immigration (EEA) Regulations 2006.
That the objection of the Honourable Judge in the light of Regulation 27(1)(b) is not made out so grant the Appellants settlement visa for UK."

4. Judge Woodcraft said in part as follows:

"The grounds of onward appeal argue that the appeal of the mother of the Appellants was allowed and therefore their appeals should have been allowed in line with hers. The first Appellant is said to be dependent upon his father and the second Appellant is still under 21. The judge dealt with the issue of dependency at paragraph 13 of the determination and that argument is a mere disagreement with the result. It discloses no arguable error of law.

In the case of the first Appellant, however, the judge arguably erred in finding that the second Appellant's date of birth was 1988 when in fact it was 1998, making the second Appellant still under 21 and thus arguably able to satisfy Regulation 7(1)(b) of the 2006 Regulations. Permission to appeal is granted to the second Appellant only."

5. At the hearing before me today Mr Mustafa said that it was accepted in the Respondent's Rule 24 Reply that there was an error of law in respect of Miss Riaz. However, insofar as the other Appellant is concerned, Mr Zahid Shah, as he was an extended family member then that was the main point and that when one looked at paragraph 13 of the judge's decision it was clear this needed further evaluation and consideration. I pointed out to Mr Mustafa that there was a difficulty for him because Judge Woodcraft made it very clear that only Miss Riaz was granted permission to appeal. Mr Shah had not been granted permission to appeal. Mr Mustafa said his solicitors had instructed him quite recently. He said he wondered whether in the circumstances there could be an application submitted out of time. As I pointed out, there was no such application before me and indeed it appears that in any event it would be significantly out of time with no real explanation as to what the problem and the difficulties have been to have caused the delay. The simple position is that it was only Miss Riaz's appeal that was to be considered today, not Mr Shah's. In any event, Mr Shah had the real hurdle of showing there was evidence of dependency because he was aged over 21 whereas his sister was not. There was no sufficient evidence of dependency before the Judge.

6. I also heard from Ms Pettersen on behalf of the Respondent. In the circumstances, because of the concession properly made by Ms Pettersen that the judge did materially err in law in respect of the age of Miss Riaz, then Regulation 7 comes to the aid of Miss Riaz. Regulation 7 of the Immigration (EEA) Regulations 2006 makes it clear who is to be viewed as a family member. It states, insofar as relevant:

"The following persons shall be treated as the family members of another person -

(b) direct descendants of his, his spouse or his civil partner who are -

(i) under 21",

I interpolate to say that when the grounds of appeal were lodged they incorrectly said that Miss Riaz's date of birth was 1988 and I suspect because the judge was dealing with this matter on the papers he took that date of birth to be correct and he thereby assumed that Miss Riaz was ten years older than she actually was. So, the mistake was that of those who completed the application form, but as was pointed out to me during the hearing today, when the original appeal itself had been lodged to the Tribunal against the Respondent's decision, the correct date of birth was used showing that Miss Riaz was indeed under 21 years of age.

7. Against that backdrop it is clear in my mind that there is a material error of law in relation to appeal of Miss Riaz. I set aside Judge O'Hagan's decision in respect of Miss Riaz. I remake the decision and I allow the appeal of Miss Riaz pursuant to Regulation 7(1)(b)(i) of the 2006 Regulations. She is a family member for the purposes of the EEA Regulations but I make it clear again, insofar Mr Shah is concerned he was not granted permission to appeal. His appeal remains dismissed and for the avoidance of doubt, even if that matter was before me it is clear that the judge made sufficiently reasoned findings in respect of the dependency issue. Mr Shah would have to show dependency for the purpose of Regulation 7(1)(b)(ii) and clearly there were ample findings in that regard and there is no reason for me to go behind those.

Notice of Decision

There was an error of law in the Judge's decision in respect of the appeal relating to the appeal of Miss Riaz. I set aside that decision.
I remake the decision relating to Miss Riaz and allow her appeal pursuant to Regulation 7.

For the avoidance of doubt, I have added reference to the original appeal of Mr Riaz but he had not been granted permission to appeal by Judge Woodcraft. Mr Riaz's appeal remains dismissed.

No anonymity direction is made.

Signed

A Mahmood

Deputy Upper Tribunal Judge Mahmood Date: 25 October 2017