Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-004948
First-tier Tribunal No: EA/05594/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 29 April 2023

Before

UPPER TRIBUNAL JUDGE BLUNDELL

Between

MUHAMMAD UMER
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr N Ahmed, of counsel, instructed by
For the Respondent: Mr S Whitwell, Senior Presenting Officer

Heard at Field House on 15 February 2023

DECISION AND REASONS
1. The appellant is a Pakistani national who was born on 22 June 2002. He appeals, with the permission of First-tier Tribunal Judge Beach, against the decision of First-tier Tribunal Judge Ford (“the judge”). By her decision of 13 January 2022, the judge dismissed the appellant’s appeal against the refusal of his application for an EEA Family Permit.
Background
2. The appellant applied for a Family Permit on 23 November 2020. He claimed to be the dependent relative of his paternal uncle, Muzammil Hussain Bibi. Mr Bibi is a Spanish national who has resided in the United Kingdom since April 2020. He holds pre-settled status under the EU Settlement Scheme.
3. It was stated in the appellant’s online application that the sponsor was working in the UK and that he had been remitting about £90 per month to the appellant for his ‘daily living expenses’. It was stated that this money had been sent to the appellant’s father until the appellant attained his majority.
4. The respondent refused the application for two reasons. She did not accept that the appellant and the sponsor were related as claimed or that the appellant was genuinely dependent upon the sponsor for his essential needs.
The Appeal to the First-tier Tribunal
5. The appellant appealed, and his appeal came before the judge, sitting in Birmingham, on 23 December 2021. The appellant was represented by counsel (not Mr Ahmed), the respondent by a Presenting Officer. The judge received bundles of documents from the appellant (116 pages) and the respondent (17 pages). She heard oral evidence from the sponsor and submissions from the representatives before reserving her decision.
6. In her reserved decision, the judge summarised the ECO’s decision and the salient background at [1]-[4]. There was a summary of the relevant law at [5]-[7]. At [8]-[12], under the sub-heading “The hearing”, the judge set out the evidence given by the sponsor before her, together with some observations about the limitations of that evidence. Notably, she recorded that it was the sponsor’s evidence that he remitted 25,000 PKR to the appellant every month in order to pay for the appellant’s education and travel expenses. He stated that he had been doing so since the appellant had started school because the appellant’s father did not earn enough money to cover those expenses.
7. At [13]-[21], the judge reached her conclusions. She accepted that the appellant was related to the sponsor as claimed but not that the one was dependent upon the other: [13]-[14] and [15]-[19].
8. At [15], the judge accepted that money had been remitted to the appellant for a six-month period in 2020, she did not accept that this money was used for his education because she was ‘not satisfied that he was still in education when those monies were received’. At [16], the judge noted that the appellant lived with his own family, another paternal uncle and his grandfather. At [17], the judge observed that the evidence was ‘lacking’ as regards any money paid towards education fees for the appellant. Nor, she noted, was there any evidence to show that he had sat exams in 2019/2020 (when he was said to have matriculated) and there was also nothing to show that he was to train as a plumber (as claimed by the sponsor).
9. At [18], the judge accepted that the respondent had set the bar too high in her decision. Nevertheless, it was not established that the appellant was dependent upon the sponsor for his education. At [19], the judge noted that the appellant’s case was based on a claimed need for his uncle to pay for his education, as opposed to his other maintenance. She did not accept that the sponsor had paid for his primary or secondary education because she had insufficient evidence on which to make a finding. Even if he had done so, however, there was insufficient evidence to show that the appellant was still in education or that he intended to pursue further education. She was not satisfied, therefore, that the appellant required the support of the sponsor to pay for his education. So it was that the judge dismissed the appeal.

The Appeal to the Upper Tribunal
10. There is said to be a single ground of appeal, which is that the judge misdirected herself in law. In truth, however, the complaints advanced in the grounds are that:
(i) The judge left material evidence (a receipt for payment of examination fees) out of account in concluding that the appellant was no longer in education;
(ii) The judge left material evidence (remittances to the appellant’s father from the sponsor, in Spain) out of account when she concluded that the appellant was not dependent on the sponsor; and
(iii) The judge had misdirected herself in law in failing to consider whether the appellant was able to meet his own essential needs.
11. Judge Beach granted permission at large. The respondent did not file a response to the grounds of appeal under rule 24.
12. Mr Ahmed amplified the grounds in his oral submissions. He submitted that the decision did not show that the judge was cognisant of the receipt which appeared at p91 of the appellant’s bundle. That document suggested that the appellant was to take an examination in 2021 and was therefore material to the judge’s conclusion that the appellant was not a student at that time. It was natural to assume that the exam would have followed studies.
13. The appellant was said to have been dependent upon his uncle since he was nine years old. There was extensive evidence of financial support passing between the sponsor and the appellant or his family, even if there was nothing more to do with the appellant’s education. If the sponsor was meeting the costs of the appellant’s ongoing education, the latter was clearly dependent on the former for meeting his essential needs, and that sufficed to pass the test articulated in Reyes v Migrationsverket (Case C-423/12); [2014] 2 CMLR 39. There was no need to consider whether it was a dependency of choice or necessity.
14. Mr Whitwell submitted that the judge had clearly considered all of the evidence before her and had been entitled to conclude that it was ‘lacking’. The exam receipt took matters no further in isolation. It did not establish that the appellant remained in education. It certainly did not show that the sponsor had funded his education.
15. Mr Ahmed responded briefly, highlighting what he submitted was the materiality of the exam receipt to the judge’s conclusion that the appellant was not in education. He reminded me that there was an application under rule 15(2A) to adduce further evidence of the appellant’s education.
16. I reserved my decision at the conclusion of the submissions.
Analysis
17. I do not accept that the judge erred in law in dismissing the appellant’s appeal. My reasons for reaching that conclusion are as follows.
18. The judge was clearly cognisant of the fact that this was a rather unusual extended family member case. The appellant did not contend that he was wholly dependent upon the sponsor. As the judge noted, the appellant lives with his own family, including his father, siblings, grandfather, and his other paternal uncle. When the sponsor gave evidence before the judge, he stated clearly that the appellant’s dependency upon him was of a specific type. He did not suggest that he was responsible for feeding or clothing the appellant, or that he was responsible for footing medical bills, for example. He stated, instead, that he was responsible for paying for the appellant’s education and the ancillary costs of that education, including transport in particular. As Mr Ahmed noted in his clear and concise submissions before me, the sponsor stated that he had been funding the appellant’s studies in this way since the appellant was nine years old. The appellant’s father stated in his witness statement before the FtT that the sponsor ‘took this liability ages ago’.
19. Anyone with experience in the immigration field will know that such assertions are entirely unremarkable. It is commonplace for those who have found their way to the UK (or, for that matter, to Europe) to remit funds to their relatives in order that the next generation can be enriched by a better standard of education than might otherwise have been available. What was required in this case, in order to establish that the appellant was dependent on the sponsor in this specific way, was evidence to show that the appellant was in education and that his education was funded by the sponsor. (Like the judge, I would be inclined to accept that a person who pays for the education of another (and particularly a minor) is responsible for meeting that person’s essential needs.)
20. On any proper view, the evidence which was adduced to address the questions I have posed in the penultimate sentence of [18] above was ‘lacking’, to use the judge’s fitting epithet. There was a good deal of evidence to show that money had been sent by the sponsor to his family in Pakistan, which included evidence to show that he had sent money directly to the appellant since he had attained his majority. The sponsor and the appellant’s father asserted that that money had been spent on the appellant’s education. The absence of documentary evidence to show that the appellant had even received an education was stark, however. There was no evidence to show that he had ever been enrolled at a school. There was no evidence to show that he had taken examinations, or that he had passed (or failed) any examinations.
21. There was simply no documentary evidence to establish the claim made in the witness statements that the sponsor had paid for the appellant’s education. That might have taken the form of a confirmatory letter from a school or even education receipts, showing that the sums received from the sponsor in the UK (or Spain) had been spent on fees.
22. The only documentary evidence which shed any light at all on the claim made in the witness statements was the document which appeared at p91 of the appellant’s bundle. I expressed some concern at the hearing that this document might not even relate to the appellant, given the different spelling of his surname, but I am prepared to accept that his surname may be spelt in alternative ways in English. Even assuming that to be the case, however, the document takes matters no further for the appellant. It is a very poor photocopy but the following information is visible.
23. At the top of the document, someone has written in manuscript “Exam fee for Appellant”. Underneath that, in typescript, the words “Board of Intermediate and Secondary Education Gujranwala (SSC Annual Examination 2021)” are visible. The document bears the appellant’s name on the left hand side, directly underneath a “Due Date” of 9 April 2021. The amount of rupees payable is given as 15,045. There is a computer generated stamp over the middle of the document which seemingly shows that the requisite payment was made at 11am on 9 April 2021. That date also appears in manuscript, as does a wet ink stamp, in the part of the document in which the manager or cashier is instructed to place their endorsement.
24. At its highest, this document shows that a fee was paid for the appellant to sit an exam in April 2021, shortly after the Entry Clearance Officer refused the appellant’s application. On its own, that document did not establish that the appellant continued to be in education. Nor, in isolation, did it even militate in favour of that conclusion. Anyone might pay a fee to sit an exam in this country and there is no reason to think that the system is different in Pakistan. That they have done so does not mean that they are in education, or even that they actually proceed to sit the exam in question. It merely establishes that a fee was paid for the appellant to sit an exam.
25. Properly understood, therefore, this document does not run counter to the judge’s findings, and there is no reason to think that she overlooked it when she reached the findings she did. As Mr Whitwell said in his incisive submissions, the judge’s concern was that the evidence simply did not establish that the appellant was in education or that the sponsor was paying for any such education. There was no error of law in that conclusion. In fairness to the judge, I think it is possible to go a stage further than that. Considering the stark deficiencies in the evidence, that was the only conclusion which she could rationally have reached. It follows that I do not accept that the first ground of appeal is made out.
26. The second grounds fails for much the same reason. Whilst it is correct to observe that the judge focused on the more recent evidence of remittances, it is understandable that this was her focus, given that the requirement was for current dependency (or membership of household). In a case such as the present, in which the appellant has not made his way to the UK, there is obviously no requirement of continuous dependency (contrast Chowdhury v SSHD [2021] EWCA Civ 1220; [2021] Imm AR 1748, therefore). But had the judge considered the evidence of earlier remittances more closely, that would have done nothing to alleviate her concern that the evidence was ‘lacking’ in respect of the critical claim that the remitted money had been used specially to fund the appellant’s education. As I have already explained, the only documentary evidence which was adduced to prove the claims in the statements was the exam receipt, which was all but evidentially worthless for the reasons I have given.
27. The third ground is without merit, given that there was no error of law in the judge’s primary finding of fact. The appellant’s family did not contend that he was unable, with the support of his family in Pakistan, to meet his other essential needs. The specific contention in this case was that the sponsor was responsible for the appellant’s educational and related costs. The judge was entitled to reject that claim for the reasons that she gave. Having done so, she was not invited to consider whether the appellant and his family could meet his remaining needs, since that was tacitly accepted throughout.
28. In the circumstances, the appellant has not established that there was an error of law in the decision of the judge, and that decision shall stand.
29. Mr Ahmed quite properly drew to my attention that an application had been made to admit further evidence under rule 15(2A) of the Upper Tribunal Rules. On my enquiry, however, he accepted that this material was not relevant to the question of whether or not the judge below had erred in law. It was not contended, for example, that this evidence established that the judge had erred in the manner recognised in E & R v SSHD [2004] QB 1044. Mr Ahmed accepted, therefore, that the evidence and the application to admit it were only relevant in the event that I accepted that the judge had erred in law. Having rejected that submission, I need not consider the application under rule 15(2A).
Notice of Decision
The appellant’s appeal to the Upper Tribunal is dismissed. The decision of the FtT shall stand.

M.J.Blundell

Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 March 2023