Tribunal decisions

The decision

IAC-AH--V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number:
EA/06103/2020; UI-2022-000441
EA/06107/2020; UI-2022-000442
EA/06111/2020; UI-2022-000443
EA/06545/2020; UI-2022-000444

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 18 May 2022 via MS Teams
On the 12 July 2022

Before

UPPER TRIBUNAL JUDGE KAMARA

Between
RAVJINDER KAUR
HARMEET KAUR
SIMRAT SINGH
SUKHMAN KAUR
(ANONYMITY DIRECTION not made)
Appellant
and

THE ENTRY CLEARANCE OFFICER
Respondent

Representation:

For the Appellant: Ms S Saifolahi, counsel instructed by NN Solicitors
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge S Taylor, promulgated on 31 December 2021. Permission to appeal was granted by First-tier Tribunal Judge Seelhoff on 14 March 2022
Anonymity
2. No direction has been made previously, and there is no obvious reason for one now.
Background
3. The first appellant is the mother of the three remaining appellants who were all minors at the time an application was made for EEA Family Permits, on 23 October 2020. The EEA sponsor is Liliana Morari, a Romanian national, who is married to the first appellant’s brother-in-law, Gurtej Singh. Sadly, the first appellant’s husband and the remaining appellants’ father, Gubheg Singh, died on 1 October 2020. The appellants’ case is that Gubheg Singh, and by extension the appellants, were dependent upon on the EEA sponsor and his brother from 2017 when he became too ill to work. Since he passed away, the appellants have continued to be dependent upon Ms Morari and Mr Gurtej Singh.
4. The applications for Family Permits were refused on 17 November 2020. The Entry Clearance Officer (ECO) did not accept that the first appellant was related to the sponsor nor that the appellants were dependent upon her.
The decision of the First-tier Tribunal
5. The First-tier Tribunal judge accepted that the appellants were related as claimed and therefore the sponsor was related to the appellants for the purpose of Regulation 8 of the Immigration (European Economic Area) Regulations 2016. It was also accepted that the appellants were dependent upon the EEA sponsor from 2017 onwards. The appeal was dismissed because the judge did not accept that the appellants were dependent upon the sponsor at any time before the sponsor arrived in the United Kingdom, and concluded that the requirements of Regulation 8(2) were not met.
The grounds of appeal
6. In the grounds of appeal, it was argued that as the judge found that there was dependence by the appellants on the sponsor, he had erred in his understanding of Regulation 8(2) and that he should have allowed the appeal.
7. Permission to appeal was granted on the basis sought. The judge granting permission added that Regulation 8 only permitted EEA nationals to bring their own relatives and not the relatives of their partner.
8. The respondent’s Rule 24 response, received on 31 March 2022, indicated that the appeal was unopposed for the reason given in the grounds. On the additional point raised by the judge granting permission, the respondent considered that the most appropriate course of action was for the case to be remitted to the First-tier Tribunal where this issue could be considered, given that it did not form part of the ECO’s consideration.

The hearing
9. Ms Cunha confirmed that the respondent’s view of this matter had not changed and that it was fair and appropriate for it to be remitted to the First-tier Tribunal.
10. Ms Saifolahi initially argued that the comments made in the permission grant were wrong, owing to an amendment made on 15 August 2019 to include the relatives of a spouse or civil partner of an EEA national. She specifically referred to Regulation 8(7), emphasising that this matter did not form part of the decision and was not raised during the appeal hearing. She added that the First-tier Tribunal made clear findings of fact regarding the issues of relationship and dependency at [12] and [15]. The core error made by the judge was that he required prior dependency. Ms Saifolahi submitted that the appeals could simply be allowed without a rehearing.
11. In response, Ms Cunha, with reference to Regulation 8(7), explained that her understanding was that while it expanded the categories of individual who may come under the category of extended family member to includes relatives of the spouse of the EEA national, there was a requirement that an applicant for a Residence Card have been issued an EEA Family Permit. While she had sympathy for the appellants, this was a mandatory requirement.
12. Ms Saifolahi changed her approach upon further consideration of Regulation 8(7) and indicated that the appellants would benefit from the appeal being remitted to the First-tier Tribunal so that this issue could be properly ventilated.
13. At the end of the hearing, I announced that the First-tier Tribunal made a material error of law, and that decision is set aside, save for the favourable findings regarding the dependency of the appellants upon the EEA sponsor and her husband.
Decision on error of law
14. It is common ground that the First-tier Tribunal erred in dismissing the appeal solely because the appellants were not dependent upon the sponsor prior to her arrival in the United Kingdom. This amounts to an error of law as there is simply no basis for such a finding.
15. Owing to the additional point identified by Judge Seelhoff in granting permission, this matter is remitted to the First-tier Tribunal for consideration.
16. While mindful of statement 7 of the Senior President’s Practice Statements of 10 February 2010, the nature and extent of the findings to be made as well as that the appellants have yet to have an adequate consideration of their EEA appeals at the First-tier Tribunal and it would be unfair to deprive them of such consideration as well as the possibility of bringing an appeal to the Upper Tribunal should they not succeed.

Decision

The making of the decision of the First-tier Tribunal did involve the making of an error of on a point of law.

The decision of the First-tier Tribunal is set aside, save the findings regarding the relationship and dependency.

The appeal is remitted, de novo, to the First-tier Tribunal to be reheard at Taylor House, with a time estimate of one day by any judge except First-tier Tribunal S Taylor.

Signed: T Kamara Date 05 December 2023

Upper Tribunal Judge Kamara