Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/06420/2019

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23rd May 2022
On the 20 June 2022

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

NASIM AKHTAR
(Anonymity direction not MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Ms Anzani, instructed by Vestra Lawyers
For the Respondent: Ms Ahmed, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Pakistan born on 2 January 1961. She appeals against the decision of First-tier Tribunal J M Dixon, promulgated on 24 March 2021, dismissing her appeal, against the refusal of an EEA family permit to join her brother in the UK, under the Immigration (EEA) Regulations 2016.
2. Permission was granted by Upper Tribunal Judge Pitt on 30 September 2021 for the following reasons:
“It is arguable that the contents of the money transfer documents were sufficiently clear such that the First-tier Tribunal was not entitled to place no weight on them even where a formal translation was not provided and that the matters relied upon by the judge in paragraphs 33 and 34 were not sufficiently cogent so as to make the question of the money transfer immaterial.”
3. It was agreed the issue before the judge was whether the appellant was genuinely dependant on her brother [the EEA sponsor] who gave evidence before the First-tier Tribunal where the appellant was not legally represented. There were two grounds of appeal:
(i) The judge failed to attach weight to the ‘Moneytrans’ money transfer receipts;
(ii) The judge took into account irrelevant matters, namely who the appellant would live with in the UK, why the appellant’s sister was not supporting her in Pakistan and the provenance of the income and expenditure document.
Ground 1
4. Ms Anzani recognised the need for translating documents in accordance with the practice direction. However, she submitted it was clear on the face of the documents that the EEA sponsor was sending money to the appellant. Taking into account the overriding objective, the judge could deal with this evidence without unnecessary formality. It may have been open to the judge to attach little weight to this evidence but to give it no weight at all was an error of law. It was not clear on reading [32] that the judge had considered the appellant’s case in the alternative.
5. Ms Ahmed submitted credibility was in issue, having been raised by the Entry Clearance Officer and the Entry Clearance Manager, and this issue clearly troubled the judge. The onus was in the appellant to prove her case and it was not for the judge to decipher documents even if the appellant was unrepresented. There was no suggestion the hearing was unfair and nothing was raised by the EEA sponsor at the hearing in relation to problems with documents.
6. Ms Ahmed submitted there was nothing in Procedure Rule 12(5) to support the submission that untranslated documents should be given weight if it was proportionate to do so. The Rule was clear that documents must be translated and the practice direction supported this; requiring a typed translation which was signed and certified. The judge cannot be criticised for disregarding untranslated documents or for attaching no weight to them. On the contrary, it would be against the overriding objective, the procedure rules and the practice direction for the judge to decipher documents for himself. It would open the door to a challenge on the grounds of unsupported findings.
7. Ms Ahmed submitted the approach at [8] of the grounds was wrong, [9] was not argued at the hearing and [10] wholly simplified the issue. The alternative would be to attach little weight to the evidence and so any error was immaterial. The ‘Moneytrans’ receipts in themselves were insufficient to show dependency. The judge had qualified his findings in the alternative and his findings were open to him on the evidence before him. The failure to take into account other UK money transfer receipts was not argued in the grounds but was immaterial in any event.
8. Ms Anzani submitted there was no issue taken about the lack of translation and therefore the EEA sponsor was unaware of this at the hearing which was a relevant consideration.
9. I find the judge was entitled to disregard the untranslated documents in accordance with Procedure Rule 12(5)(b). At [32], the judge explained why he attached no weight to this evidence and the alternative of attaching little weight would not have been material given the judge’s other sustainable findings.
10. Further or alternatively, the judge found that even if he inferred the ‘Moneytrans’ receipts showed that the EEA sponsor sent money to the appellant, the appeal failed on other grounds and therefore the weight to be attached to this evidence was not material. I find there was no material error of law in Ground 1
Ground 2
11. Ms Anzani submitted the findings at [33] were not relevant to dependency. The appellant could live with her daughter and be dependent on her brother. The judge erred in law in taking into account irrelevant considerations. There was ample evidence the EEA sponsor sent money to the appellant. Her sister’s ability to support her was irrelevant.
12. I asked if this point was relevant to assessing essential needs. Ms Anzani submitted it was not proportionate to conclude that credibility was undermined by the document showing monthly income and expenditure notwithstanding there was no statement from the appellant or oral evidence from the EEA sponsor as to its provenance.
13. In response to a further question from me, Ms Anzani submitted there was sufficient evidence to show dependency for the purpose of essential needs. The appellant’s evidence could not be outweighed by the failure to show who prepared the income and expenditure document. In addition, the judge failed to refer to other money transfer receipts. Ms Anzani submitted the judge’s reasons were insufficient to justify the decision.
14. Ms Ahmed submitted none of the matters raised by the judge were irrelevant in the context of the appeal and as part of his holistic assessment. The judge properly directed himself at [28]. He had concerns as to whether the dependency was genuine and made appropriate findings which were relevant to whether the appellant was dependent.
15. Where the appellant would live in the UK was an issue relevant to credibility. The sponsor stated the appellant had previously been sponsored by her daughter and the evidence was inconsistent. The judge was entitled to draw adverse inferences. The appellant had to demonstrate dependency and the evidence was inconsistent. The EEA sponsor failed to give a clear answer in oral evidence. The grounds were out of context.
16. Ms Ahmed submitted income and expenditure were relevant to whether the funds from the EEA sponsor met the appellant’s essential needs. The EEA sponsor could not give a credible answer. The judge’s findings at [34] were cogently reasoned. The judge could not be impugned for the limitations in the appellant’s evidence which plainly did not demonstrate dependency. The judge was not satisfied the dependency was genuine and found the evidence had been contrived. There was no material error of law in the decision.
17. There is no dispute the issue in the appeal was whether the appellant was genuinely dependant on the EEA sponsor. Credibility was clearly in issue. The matters referred to by the judge at [33] and [34] were relevant to credibility.
18. The appellant stated in her application form that she would live with her daughter and the documentary evidence supported this position. The EEA sponsor stated she would live with him. There was no credible explanation for this discrepancy.
19. The appellant’s circumstances in Pakistan were relevant to show whether her dependency on the sponsor was for the purpose of her essential needs. The provenance of the income and expenditure document was unknown. The EEA sponsor did not know who had prepared it and there was no other statement to explain its provenance. In addition, the EEA sponsor gave evidence that he had been sending support to his sisters (plural) in Pakistan. The appellant’s sister lived in the same town as the appellant.
20. At [34] the judge stated: “I am not satisfied that a credible picture has been given of the appellant’s circumstances in Pakistan.” This finding was open to the judge on the evidence before him and he gave adequate reasons for coming to this conclusion. There was no material error of law in Ground 2.
Conclusion
21. I find there was insufficient evidence before the judge to show that the appellant was genuinely dependant on the EEA sponsor. Accordingly, there was no material error of law in the decision of First-tier Tribunal promulgated on 24 March 2021 and I dismiss the appellant’s appeal.

J Frances

Signed Date: 26 May 2022
Upper Tribunal Judge Frances

TO THE RESPONDENT
FEE AWARD
As we have dismissed the appeal, we make no fee award.

J Frances

Signed Date: 26 May 2022
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.