Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2022-000309
EA/06716/2021

THE IMMIGRATION ACTS

Heard at Field House, London
Decision & Reasons Promulgated
On Tuesday 19 April 2022
On Thursday 23 June 2022

Before

UPPER TRIBUNAL JUDGE L SMITH

Between

AMARJIT SINGH
Appellant
-and-

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr Z Raza, Counsel instructed by Charles Simmons solicitors
For the Respondent: Ms A Ahmed, Senior Home Office Presenting Officer

DECISION AND REASONS

BACKGROUND

1. The Appellant appeals against the decision of First-tier Tribunal Judge J Bartlett promulgated on 4 January 2022 (“the Decision”). By the Decision, the Judge dismissed the Appellant’s appeal against the Respondent’s decision dated 22 March 2021, refusing him a family permit under the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”) to join his brother, Dalawar Singh, in the UK. Mr Dalawar Singh (hereafter “the Sponsor”) is a Portuguese national residing in the UK. Although the EEA Regulations have been repealed, this appeal proceeds in accordance with transitional arrangements.

2. The Appellant is a national of and resident in India. The Sponsor resided with the Appellant in the family home until 1995. The Appellant’s and Sponsor’s father has since died. The Appellant’s and Sponsor’s mother lives with the Sponsor in the UK. The Sponsor used his inheritance to buy a house in India where the Appellant is said now to live (although that does not appear in either the Sponsor’s or the Appellant’s witness statement). The Appellant’s wife and children are said to have left him in 2009 and emigrated to Canada. The Appellant is said to have lost his job in 2018 and the Sponsor says that he has been supporting the Appellant since then. The Appellant and Sponsor have another older brother who is living in Italy and provides some money to the Appellant from time to time.

3. The Respondent accepted that the Sponsor sends money to the Appellant but did not accept that the money transfers showed dependency absent other evidence about the Appellant’s circumstances in India.

4. Judge Bartlett similarly accepted that the evidence showed that the Sponsor sends money to the Appellant but was not satisfied that the evidence showed that the Appellant is dependent on the Sponsor. The Respondent was not represented at the hearing before Judge Bartlett and therefore there was no examination of the Sponsor’s evidence at that hearing.

5. The Appellant challenges the Decision on a number of grounds which can be summarised as follows:

(1) The Judge’s reasons for finding that dependency was not established were inadequate.
(2) There was no evidential basis for certain of the Judge’s findings; alternatively the Judge does not explain her reasons for rejecting the evidence.
(3) The Judge fails to conduct a “holistic analysis” based on the evidence, particularly in light of the evidence that the Appellant lives in a house owned by the Sponsor.
(4) The Judge erred by not accepting, in light of that latter fact, that the Appellant is a member of the Sponsor’s household.

6. Permission to appeal was granted by First-tier Tribunal Judge SPJ Buchanan on 7 March 2022 in the following terms so far as relevant:

“..6. Considering the evidence noted about the appellant not having had a job since 2018 [#3(1)] and of the lack of regular payments from the brother in Italy [#3(ix)] and the wife having emigrated to Canada [#3(vii)], and having regard to the absence of any HO representative at the Hearing, it is arguable that the FTTJ erred in assessing dependency by reference to past work history and to other potential benefactors who might be in a position to provide support.
7. It is arguable by reference to the Grounds of Appeal that there may have been error of law in the Decision as identified in the application. I grant permission to appeal.”

7. The matter comes before me to determine whether the Decision contains an error of law. If I conclude that it does, I must then decide whether the error should lead to a setting aside of the Decision and, if I set it aside, I must either re-make the decision or remit the appeal to the First-tier Tribunal to do so.

8. I had before me a core bundle of documents relevant to this appeal, the Respondent’s bundle before the First-tier Tribunal and the Appellant’s bundle and supplementary bundle before the First-tier Tribunal. I refer to documents in the Appellant’s bundle below as [AB/xx].

DISCUSSION

9. I begin with the last of the grounds which I have summarised above concerning the issue whether the Judge erred in her finding that the Appellant is not a member of the Sponsor’s household.

10. The Judge dealt with this issue at [10] of the Decision as follows:

“Mr Uddin argued in the alternative that the appellant had been a member of the sponsor’s household before the sponsor left India. Whilst I am happy to accept that they lived at the same address several decades ago, I do not accept that the appellant can satisfy the 2016 Regulations by this route. In the intervening 16 or more years both the appellant and sponsor have formed their own independent family units and, on their own evidence, the appellant supported himself and his family. Firstly I do not accept that living at the same address means that they were a member of the same household and secondly even if they were there was no continuity in the relationship because of the intervening events.”

11. As I have indicated above, the Sponsor ceased to live with the Appellant in the family home in 1995. I was told by Mr Raza (although I can find no evidence in the bundle about this) that the Sponsor has been an EEA national since 2014 so would not have been an EEA national at the time when he was said by the Judge to have lived with the Appellant in India. The Judge was in any event clearly right to note the lack of continuity. As I understood Mr Raza to accept at the hearing, any claim framed in that way would fail based on what is said by the Tribunal in Chowdhury (Extended family members: dependency) [2020] UKUT 188 (IAC) (“Chowdhury”). However, since that does appear to be disputed in the pleaded case ([12] of the grounds) I explain why I consider the Judge was right to reject this part of the case as she did.

12. The guidance in Chowdhury reads as follows:

“The words ‘and continues to be dependent’ in regulation 8(2)(c) of the Immigration (European Economic Area) Regulation 2006, properly characterised, require an applicant to establish that there has not been a break in their dependency on the EEA national sponsor.”

13. Whilst I accept that Chowdhury is looking at a case where past dependency outside the UK and present dependency within the UK was relevant because the appellant had entered the UK, it is difficult to see why the position should be any different merely because the person said to be dependent on the EEA national has not yet entered the UK. The premise of permitting an extended family member to enter or remain in the UK is (or was) because the EEA national might be dissuaded from exercising Treaty rights here if denied the presence of a member of his family who is either dependent on him/her or is a member of his/her household. Based on the Appellant and Sponsor living together in India in 1995 (at a time when the Sponsor had yet to acquire his EEA nationality), the Appellant could not be said to be presently a member of the Sponsor’s household. I therefore reject this ground on that basis. The Judge was entitled – indeed correct – to reject the case put in that way.

14. The alternative way in which the ground is pleaded is the way in which Mr Raza developed it orally. He says that the Judge should have considered whether the Appellant is a member of the Sponsor’s household because the Appellant lives in a house owned by the Sponsor (or used by him as a home when he goes to India).

15. The first difficulty with this submission is that it is entirely unclear whether that case was put to Judge Bartlett at all. Mr Raza was not the barrister appearing before Judge Bartlett. The skeleton argument before Judge Bartlett makes no mention of a case based on membership of household at all.

16. Second, that point is underlined by the lack of evidence about how this case could be established. Mr Raza told me that the Sponsor had bought the house in which the Appellant now lives in 2017. He also said that the Sponsor stays there when he visits India. However, although it is said that the Sponsor used his inheritance to buy the house where the Appellant lives ([3(vi)] – based on oral evidence), it is not said when that was nor is there any indication of evidence given by the Sponsor that he stays there when he visits nor indeed if and when he does visit India. The Sponsor’s witness statement ([AB/16-18]) makes no mention of the Appellant living in a house he owns at all let alone when he bought it or when he visits it.

17. Third, although this ground as pleaded relies on Moneke (EEA – OFMs) Nigeria [2011] UKUT 00341 (IAC) (“Moneke”), Mr Raza fairly accepted in the course of his submissions that he had inadvertently failed to include the whole of the relevant part of the guidance in that case. The guidance in Moneke reads as follows so far as relevant:

“i. A person claiming to be an OFM under Article 3(2) of Directive 2004/38/EC may either be a dependant or a member of the household of the EEA national: they are alternative ways of qualifying as an OFM.
…
iv. Membership of a household has the meaning set out in KG (Sri Lanka) [2008] EWCA Civ 13 and Bigia & Ors [2009] EWCA Civ 79; that is to say it imports living for some period of time under the roof of a household that can be said to be that of the EEA national for a time when he or she had such nationality. That necessarily requires that whilst in possession of such nationality the family member has lived somewhere in the world in the same country as the EEA national, but not necessarily in an EEA state.”
[my emphasis]

18. As Mr Raza was constrained to accept, he could not therefore argue that the Appellant is a member of the Sponsor’s household merely because he lives in a house owned by the Sponsor. Put another way, the Appellant may for that reason live in the house of the Sponsor; he does not live in the household of the Sponsor.

19. I would struggle to accept either that, just because the Sponsor might stay from time to time in the house he owns in India with the Appellant during visits, this would amount to membership of the same household given the evidence which clearly shows that the Sponsor’s household is in the UK. I do not need to decide that point though because there is no written evidence from the Sponsor that he visits India nor how frequently or for how long and this is not covered in the oral evidence as recorded at [3] of the Decision. Indeed, so far as I can see, there is no evidence that he owns the property in which the Appellant lives (although the Judge appears to have accepted the Sponsor’s oral evidence on this point).

20. I turn then to the Judge’s findings about dependency. Those appear at [6] to [9] of the Decision as follows:

“6. The appellant’s bundle is substantial and contains numerous documents. There is evidence of regular money transfers from 2018 and in submissions Mr Uddin drew my attention to various other money transfers including one from 14 July 2011 in the amount of £741.23.
7. I am not satisfied that the appellant is dependent on the sponsor as claimed. The appellant is 48 years old, he had a family and he has a work history. I recognise that an individual does not need any reason to choose to be dependent on a sponsor to qualify as a dependent under the 2016 Regulations. However this is a situation where the appellant has supported himself for decades previously and he has several other family members who could support him such as the brother in Italy and his wife.
8. I recognise that there is a record of money transfers from 2018 and that there are some more ad hoc money transfers in some years preceding this period. However it is also the case that the sponsor owns property in India and money would be needed to pay those bills and to maintain the property. Therefore I am not satisfied that the money transfer receipts and the evidence from the witness of money transfers for the appellant’s own use establishes dependency in the circumstance.
9. When this is combined with the fact that the appellant has other potential sources of income such as the brother in Italy and being able to support himself, I am not satisfied that there is dependency as claimed.”

21. As Mr Raza fairly accepted, the written evidence does not include any detail about the Appellant’s circumstances in India. The Appellant’s own statement ([AB/13-15)] asserts at various places that he is “financially and emotionally dependent on [his] brother and family in the UK”. He says that the “money transfer slips are most obvious and credible evidence of financial support” and that because he has no other income he is “not in a position to provide any documents in this regard”. The Sponsor says in his statement ([AB/16-18]) again by way of assertion that the Appellant “is emotionally and financially dependent on [him]”. However, neither of those statements provides any detail. Why, when the Appellant worked until 2018 does he not work now? Is he living in the Sponsor’s house rent and bill free? What are the Appellant’s “essential living needs”? How much are those? What is the money sent by the transfers used for? None of those questions are answered by the evidence.

22. Similarly, Mr Raza drew my attention to [3] of the Decision where the oral evidence is set out. That includes that the Sponsor started supporting the Appellant because he lost his job and could not find another, that he sends money to the Appellant of no fixed amount every month or two and that the Appellant lives in the Sponsor’s house. He also says that the Appellant has no other source of money than that sent by the Sponsor ([3(iv)] but that is inconsistent with [3(ix)] where he is recorded as saying that if the Sponsor cannot afford to send money then their elder brother in Italy sends it but does not do so regularly because he has his own family to support. For completeness, it is also there recorded that the Appellant’s own wife and children went to live in Canada in 2009 (it is not said why) and that the Appellant’s and Sponsor’s mother stays in the house where the Appellant lives when she goes to India.

23. I reject what is said at [2] of the grounds that all of that evidence was and had to be accepted because the Respondent was not represented. The Judge there makes clear that she is summarising the evidence given and not making findings on it. Whilst she nowhere says that she finds the Sponsor not to be a credible witness, she does summarise also the Respondent’s position at [5] of the Decision that money transfers do not of themselves establish financial dependency.

24. I also reject Mr Raza’s submission that what is said at [6] to [9] ignores that evidence. The point made at [7] of the Decision implicitly recognises that it is said that the Appellant does not work but points out that he had a work history. The Judge correctly recognises that, even if the Appellant did not work through choice and could otherwise support himself, that would not preclude dependency. It is implicit in what is there said about the Appellant supporting himself and having other potential sources of income that the Judge does not accept, without evidence of detail, that the Appellant is as he and the Sponsor assert dependent on the money sent by the Sponsor. It was open to the Judge to reach that finding on the evidence before her.

25. What is said at [8] of the Decision might as Mr Raza submitted be seen as “supposition”. It is however no more than an inference which might be drawn on the facts here and the money transfers sent. Another Judge might have inferred from the evidence that the fact of the money transfers and the bare assertions made that the Appellant relied on those funds that the Appellant was indeed dependent on the money transfers. Without evidence as to what those were and how the money sent covered them, though, that would equally be an inference rather than something proved by the evidence. That is the point being made by the Judge. The evidence of the money transfers taken alone does not demonstrate dependency.

26. Mr Raza also submitted that what is said at [9] of the Decision does not take matters anywhere; the Appellant’s ability to support himself is irrelevant. The Judge recognised at [7] that the Appellant could become dependent through choice. What is said at [9] of the Decision read as a whole is a finding by the Judge that absent evidence about the Appellant’s circumstances in India (put in issue by the Respondent’s decision) she could not find that the Appellant was dependent as he might well have income from elsewhere and had not shown that without the money transfers he could not meet his essential living needs.

27. Ms Ahmed drew my attention to what was said by the Court of Appeal in Lim v Entry Clearance Officer, Manila [2015] EWCA Civ 1383 (“Lim”) as follows:
“32. In my judgment, the critical question is whether the claimant is in fact in a position to support himself or not, and Reyes now makes that clear beyond doubt, in my view. That is a simple matter of fact. If he can support himself, there is no dependency, even if he is given financial material support by the EU citizen. Those additional resources are not necessary to enable him to meet his basic needs. If, on the other hand, he cannot support himself from his own resources, the court will not ask why that is the case, save perhaps where there is an abuse of rights. The fact that he chooses not to get a job and become self-supporting is irrelevant. It follows that on the facts of this case, there was no dependency. The appellant had the funds to support herself. She was financially independent and did not need the additional resources for the purpose of meeting her basic needs.”
28. Although Lim is concerned with a direct dependent family member rather than an extended family member, in terms of what this judgment says about dependency, I agree with Ms Ahmed that this is in essence the test which the Judge was applying. If the Judge had evidence that either the Appellant had chosen not to work or had been unable to get work after 2018 for whatever reason and if the Appellant had provided evidence of what his essential living needs were and how those were catered for by the Sponsor, the Judge’s findings could be criticised. However, the Judge could only proceed to make findings on the evidence before her and such evidence was lacking.

29. Contrary to what is said in the grounds (as summarised at [5] (1) to (3) above), the Judge did conduct a holistic analysis of all the evidence such as it was. Her reasons were brief but so too was the evidence of any dependency beyond bare assertion. The Judge cannot be said to have ignored such evidence as there was but absent detail of the dependency she did not accept that the Appellant had shown that without the money from the Sponsor he could not support himself in relation to his essential needs. The Judge was entitled to reach the conclusion she did for the reasons she gave.

30. For the foregoing reasons, the Appellant has failed to establish an error of law in the Decision. The Judge has reached findings and a conclusion based on the evidence she had which she was entitled to find inadequate for the reasons she gave.

CONCLUSION

31. For the foregoing reasons, I am satisfied that there is no error of law in the Decision. I therefore uphold the Decision with the result that the Appellant’s appeal remains dismissed.

DECISION
The Decision of First-tier Tribunal Judge J Bartlett promulgated on 4 January 2022 does not involve the making of an error on a point of law. I therefore uphold the Decision with the consequence that the Appellant’s appeal remains dismissed.

Signed: L K Smith
Upper Tribunal Judge Smith
Dated: 22 April 2022