Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers:
UI-2021-001071; EA/06543/2020
UI-2021-001073; EA/06544/2020
UI-2021-001076; EA/06546/2020
UI-2021-001080; EA/01174/2021
UI-2021-001081; EA/01175/2021

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 7 April 2022
On the 14 June 2022

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

Nadia Faisal
Muhammad Faisal
Fahad Faisal
Faris Faisal
Fawaz Faisal
(anonymity direction NOT MADE)
Appellants
and

ENTRY CLEARANCE OFFICER - ABU DHABI
Respondent

Representation:
For the Appellants: Ms A Kogulathas, instructed by East London Solicitors
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellants are nationals of Pakistan. They appealed to the First-tier Tribunal against the decision of the respondent of 21 October 2020 refusing their applications for EEA family permits as the extended family members of the sponsor, Mr Khokar, who is a citizen of Spain, and who, it is accepted, is a qualified person in the United Kingdom.

2. At issue was the question of dependency.

3. Mr Khokar’s evidence was that he had moved to the United Kingdom in March 2020 from Spain and was thereafter supporting his sister, the first appellant, and her husband and three children, the other appellants, from March 2020. Initially he supported them from his savings and then in September 2020 he obtained a job. He sends her £230 to £235 a month and has a monthly income of £1,400.

4. His evidence was that the appellants had returned to Pakistan from Saudi Arabia in March 2020 and since then had been unemployed. His brother-in-law was a computer graphic designer and his sister did not work but was a housewife looking after the three children.

5. Mr Khokar is married and his wife lives in Barcelona with their four children. His evidence was that he did not need to provide for them financially because his wife runs a successful bakery in Barcelona and does not need his money.

6. The judge accepted that there was documentary evidence of money transfers between the sponsor and the first appellant. It was not disputed that these transfers began in March 2020, i.e. eight months before the application for a family permit.

7. The judge found at paragraph 11 of his decision that, notwithstanding the money transfer receipts, he did not accept that there was a genuine financial dependency of the appellants on the EEA sponsor. He did not accept that the evidence of the money transfers established that the appellants relied on the EEA sponsor to pay for their essential living costs in Pakistan. He noted that the second appellant had been employed in Pakistan and in Saudi Arabia, and did not accept that he was not working in Pakistan or that he was unable to do so. Also, there was no evidence from Mr Khokar’s wife to support his evidence that it was not necessary for him to support her and the children in Barcelona, nor was there evidence of his own living expenses. The judge said that he bore in mind Mr Khokar’s modest income, as he described it. of £1,400 a month which potentially had to support him, a family of five in Pakistan and his own family of five in Barcelona. The judge went on to say that he was not satisfied that without the money transfers from the EEA sponsor the appellants would be unable to afford to live in Pakistan and needed as a consequence to move to the United Kingdom. He found that there was not a dependency on the EEA sponsor and therefore they were not extended family members within the meaning of Regulation 8.

8. The appellants sought and were granted permission to appeal against this decision, and permission was granted on all grounds.

9. There was also a Rule 24 response from the Secretary of State.

10. In her submissions Ms Kogulathas adopted and developed the points made in the grounds of appeal.

11. She argued, with regard to ground 1, that the judge had erred in stating without any reasoning at all that he did not accept that the second appellant was not working in Pakistan or was unable to do so. This conclusion required reasoning. The judge had not referred to any of the job rejection letters produced to corroborate the claim and the decision in this regard was unreasoned.

12. It was also argued that the judge had made inconsistent and/or perverse findings in on the one hand accepting the evidence of money transfers from the sponsor to the appellants in Pakistan and on the other hand finding that the sponsor had not been able to afford to support the appellants with his “modest income”. The judge had not explained why the sponsor would be unable to do so. He had speculated as to what the money was being spent on but this had been addressed by the sponsor in his oral evidence. It was relevant to note that there was no evidence in any of the sponsor’s bank statements that he was transferring funds to Spain for his wife and children.

13. In any event, the issue of affordability was not material to the issues in the appeal. Reliance was placed on what had been said in Lim [2015] EWCA Civ 1383. Once it was accepted that the sponsor had in fact regularly transferred the money to the appellants as claimed the issue of whether he could afford it was irrelevant to the issue of dependency as set out in Lim. The judge therefore had had regard to irrelevant matters.

14. In his submissions Mr Melvin relied upon the skeleton argument/Rule 24 response and developed the points made therein. He argued that the grounds were no more than disagreement. The judge had to consider all aspects of the case and not just the fact that money had been sent by the sponsor. His circumstances had to be evaluated in the dependency test. The matter had been considered in detail in Chowdhury [2020] UKUT 00188 (IAC). Mr Melvin had not been provided with a copy of the bundle and it was therefore unclear whether any costing had been provided of what a family of five needed to survive on in Pakistan. There was nothing to suggest that the £200 a month sent from the United Kingdom went anywhere near to provide the necessary support. It was open to the judge to conclude as he did.

15. By way of reply Ms Kogulathas stated that there had been evidence in the bundle in the sponsor and first appellant’s statements as to the costings and how the money was needed. Article 3.2 contained a requirement to facilitate entry and residence for cases of economic dependency as in this case. The family was no longer able to support itself although it had been able to do so in Saudi Arabia.

16. I reserved my decision.

Discussion

17. In my view the grounds of appeal are made out in this case. The judge’s bald statement at paragraph 11 of his decision that he did not accept that the second appellant was not working in Pakistan or was unable to do so lacked reasoning. That is particularly stark, bearing in mind that documentation was provided in the bundle to show the efforts that he had been making in Pakistan to find employment. That evidence was not considered by the judge. Nor does the judge appear to have considered the evidence of the costings provided by the sponsor and the first appellant as to how monies sent by the sponsor were spent in Pakistan insofar as, in light of the point made at paragraph 9 of the grounds, that was necessary in any event.

18. It was also relevant to note that the sponsor’s bank statements bore no evidence of funds being sent by him to Spain for his wife and children there which tended to corroborate his claim that he did not need to send the money because his wife has a successful business.

19. For all these reasons therefore I consider that the judge materially erred in his assessment of dependency in this case and the matter will be required to be reheard in full in the First-tier Tribunal at Taylor House by a different judge.

No anonymity direction is made.

Signed Date 8 April 2022

Upper Tribunal Judge Allen