Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Extempore decision

Case No: UI-2021-001731
First-tier Tribunal No: EA/06444/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 29 March 2023

Before

UPPER TRIBUNAL JUDGE SHERIDAN

Between

SHAHIQ SHARJIL
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Bellara, instructed by Piper May Solicitors
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

Heard at Field House on 27 January 2023

DECISION AND REASONS
1. This is an appeal against a decision of Judge of the First-tier Tribunal Moffatt (“the judge”) promulgated on 12 October 2021.
Background
2. In March 2021 the respondent refused the appellant’s application for a family permit under the Immigration (EEA) Regulations 2016 to join his aunt (“the sponsor”) in the UK.
3. The respondent did not accept that the appellant and the sponsor were related as claimed because there was insufficient corroborating documentary evidence. The respondent also did not accept that the appellant was dependent on the sponsor due to insufficient documentation.
4. The appellant appealed to the First-tier Tribunal.
Decision of the First-tier Tribunal
5. The judge set out in detail (in paragraphs 12 - 27 of the decision) the evidence and submissions at the hearing. From this part of the decision, it is clear that the primary issues covered in cross-examination and submissions were how the appellant uses money that is sent to him by the sponsor and whether the sponsor and the appellant are related as claimed.
6. There is no reference in paragraphs 12 – 27 to discrepancies in the spelling of names in documents and there is nothing to indicate that this issue was raised at the hearing by the respondent or the judge.
7. The judge’s findings and reasons are set out in paragraphs 28 – 35. The primary focus of this part of the decision is that there is a discrepancy between documents in the spelling of names. In paragraph 32 the judge stated:
“No explanation has been provided for the disparities in the names. Given the number of disparities, the absence of any explanation for the changes in spelling, the late issuing of the documents, I find that the appellant has not demonstrated on the balance of probabilities that he is an extended family member of the sponsor”.
Grounds and Submissions
8. The grounds of appeal argue that the decision is undermined by procedural unfairness because the issue of discrepancies in the spelling of names was not raised by the respondent (either before or at the hearing) or by the judge at the hearing and therefore the appellant did not have an opportunity to address this issue.
9. Mr Mullen’s argument essentially was that even if there was a procedural error as characterised in the grounds, it is not material because (i) the evidence before the judge indicated that only approximately £600 a year over two years has been sent by the sponsor to the appellant; (ii) there was an absence of evidence about the appellant’s needs; and (iii) when the evidence is considered as a whole it is difficult to see how on any view it can be established that the funds sent to the appellant are being used to meet essential needs.
Procedural unfairness and remittal
10. A central reason given by the judge for dismissing the appeal was that there were inconsistencies in names in documents that the appellant had not explained. However, these discrepancies were not raised in the refusal decision or at the hearing. In my view, it was procedurally unfair to draw an adverse inference from a failure to explain a point when that point had not been raised by the respondent or by the judge and therefore the appellant had no way of knowing that it needed to be addressed.
11. I am sympathetic to Mr Mullen’s arguments about the substance of the appellant’s case, as summarised in paragraph 9 above. However, given the centrality of the inconsistency issue in the judge’s reasoning I agree with Mr Bellara that the decision cannot stand.
12. I have decided to remit this case to the First-tier Tribunal as I am satisfied that Practice Statement 7.2(a) applies: that is, this is a case where the appellant has been deprived of an opportunity to put her case to and have it considered by the First-tier Tribunal.
Notice of Decision
13. The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
14. The appeal is remitted to the First-tier Tribunal to be heard afresh by a different judge.

D. Sheridan

Judge of the Upper Tribunal
Immigration and Asylum Chamber

3.3.2023