Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case Nos: UI-2022-005841
UI-2022-005842
UI-2022-005843
UI-2022-005844
UI-2022-005845

First-tier Tribunal Nos: EA/06922/2021
EA/06924/2021
EA/06925/2021
EA/06927/2021
EA/06928/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 28 March 2023

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

MRS SYEDA FARRUKH NAQVI
SYEDA MISHAM ZAINAB
SYEDA TABEER ZAHRA
SYEDA ASHNA BATOOL
SYED WASI ABBAS
(no anonymity order made)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr S Karim, instructed by Law Lane Solicitors
For the Respondent: Ms S Lecointe, Senior Home Office Presenting Officer

Heard at Field House on 17 March 2023

DECISION AND REASONS
1. The appellants are citizens of Pakistan. The first appellant is the mother of the other appellants and the brother of the EEA national sponsor. The appellants appeal, with permission, against the decision of the First-tier Tribunal dismissing their appeals against the respondent’s decision to refuse to issue them with an EEA Family Permit under the Immigration (European Economic Area) Regulations 2016 (“EEA Regulations”).
2. The appellants applied for an EEA Family Permit on 23 December 2020, as the family members of the first appellant’s brother, Sayed Anis Naqvi, a Polish national who had been living in the UK since 2006. Their applications were refused on 23 March 2021 on the grounds that the respondent was not satisfied that they were dependent upon the sponsor for their essential needs and was therefore not satisfied that they were extended family members in accordance with Regulation 8(2) of the EEA Regulations. The respondent was not satisfied that the evidence submitted, namely money transfer receipts, was sufficient to show that the appellants were dependent upon the sponsor and was also not satisfied that the sponsor was financially able to meet the essential needs of the appellants, given that he also had a spouse and at least one dependent child.
3. The appellants appealed against the respondent’s decisions, claiming that they had been dependent upon the sponsor since 2014 when the first appellant separated from her husband and her health prevented her from continuing to work.
4. The appeals came before First-tier Tribunal Farrelly on 24 August 2022. The sponsor gave oral evidence before the judge. Judge Farrelly relied upon a decision of the First-tier Tribunal made on 30 April 2020, in which Judge Gaskell dismissed the appellants’ appeals against an earlier refusal to issue them with family permits. Judge Gaskell, in turn, had relied upon a previous visit visa application made by the first appellant together with two of her children to visit the sponsor, and upon the determination of the appeal against the decision refusing that application, which was dismissed on 20 December 2012. Judge Gaskell noted inconsistencies in the evidence of the appellants’ circumstances in those appeals, in that at the time of the visit visa appeal in 2012 the first appellant was claiming to belong to a prestigious family, to be a practising lawyer with a regular income, to have a husband who was a professional banker with business interests who was financially well-off, to have considerable savings and to have strong ties to Pakistan, whereas it was claimed in the appeal before him that she was not working, had serious health concerns, was separated from her husband and had been financially dependent on the sponsor since 2010. Further, Judge Gaskell noted that the appellant had stated in her application form completed on 4 July 2019 that she was living with her husband, which was inconsistent with the evidence of the appellant and sponsor at the hearing that she and her husband had separated in 2014.
5. On the evidence before him, Judge Farrelly accepted that the sponsor acquired a property in Pakistan in 2009, that he transferred funds to a university in Sweden for the second appellant’s tuition fees in 2021, that the relationship between the first appellant and her husband had broken down and that they were estranged, that a court in Pakistan had authorised the payment of maintenance from the appellant’s husband although he claimed to be without funds, that the first appellant had been experiencing ill-health which was acute around 2011 and that there was a medical certificate indicating that she was unfit to work in September 2021. The judge accepted that from 2011 the first appellant had been unable to pursue her legal career fully because of her health condition. However the judge found that he was influenced by the previous determination of Judge Gaskell and considered that the evidence did not indicate a situation of dependency. He accepted that the sponsor had provided some funding during his sister’s difficulties and accepted that he had made his accommodation available to her and that he had attempted to finance her daughter’s education, but he did not find that the evidence overall indicated that the input of the sponsor was required to meet the family’s basic needs. He questioned whether the costs involved in educating the appellant’s daughter in Sweden constituted basic needs and considered that it was rather a matter of choice. He considered that there had been some engineering of the situation to suggest a dependency since the findings of the previous judge and noted the differing accounts previously given by the appellant as to when she separated from her husband. He did not accept that there was a situation of dependency and noted that there was no suggestion that the appellants’ absence interfered with the sponsor’s exercise of his rights. The judge accordingly dismissed the appeals in a decision promulgated on 2 September 2022.
6. The appellants sought permission to appeal to the Upper Tribunal against Judge Farrelly’s decision on the following grounds. Firstly, that the judge’s conclusion that dependency had not been made out was perverse in light of the positive findings made about the sponsor providing funding to the first appellant during her difficulties, making accommodation available to her and her children and assisting in her daughter’s education. Secondly, that there was procedural unfairness arising from the judge’s adverse findings and observations including an allegation that the evidence of dependency had been engineered, which had not been part of the respondent’s case and had not been put to the sponsor at the hearing.
7. The First-tier Tribunal refused to admit the appellants’ application for permission as it was out of time. However, on a renewed application, the Upper Tribunal admitted the application and granted permission on the second ground, although not excluding the first ground.
8. The matter then came before me for a hearing.
Hearing and Submissions
9. Both parties made submissions. With regard to the first ground Mr Karim submitted that, on the findings made by the judge at [35] to [36], and in particular at [38], namely that the sponsor was providing funding for the first appellant during her difficulties and was providing the appellants with rent-free accommodation, he ought to have allowed the appeals. He relied upon the Home Office guidance “Free Movement Rights: extended family members of EEA nationals” as establishing that the appellants did not need to be dependent on the sponsor for all their essential needs or even most of their essential needs, and submitted that providing for the first appellant in her difficulties and accommodating the appellants was a significant element of meeting their essential needs. The requirements were therefore met to meet the regulations and it was irrational for the judge to have dismissed the appeals. As for the second ground, Mr Karim submitted that the judge’s comment at [40], that there had been “some engineering of the situation to suggest a dependency” gave rise to procedural unfairness since that had not been raised at the hearing and had not been put to the sponsor and first appellant in order to give them an opportunity to respond. Mr Karim submitted that on either ground the decision should be set aside and re-made by allowing the appeals.
10. Ms Lecointe did not agree that the judge’s findings were perverse, in so far as he was suspicious that the evidence had been engineered. She accepted that the evidence before the judge did demonstrate the required level of dependency but submitted that the judge’s decision to dismiss the appeal was because he did not find the situation to be credible. Ms Lecointe agreed that there was procedural unfairness in that the judge did not address the issue of credibility at the hearing and did not give the sponsor an opportunity to respond, and she submitted that the decision should therefore be set aside and re-made.
11. Mr Karim responded by submitting that credibility was not relevant if it was accepted that the evidence demonstrated the dependency. The decision should simply be re-made by allowing the appeal.
Discussion
12. There does not appear to be any dispute between the parties that the evidence before the judge, on its face, was sufficient to demonstrate the required dependency by the appellants upon the sponsor. The point made by Ms Lecointe, as I understand it, was that the reason why the judge did not go on to allow the appeal in such circumstances was not because he was acting irrationally, but because he considered that the evidence had been contrived so as to set up a situation which, albeit demonstrating dependency on its face, did not in fact genuinely reflect the actual situation. The judge’s decision was therefore based upon credibility.
13. Ms Lecointe agreed with Mr Karim that, since that had not been the way in which the case had been put by the respondent and since the judge had not raised the credibility issue at the hearing, there was procedural unfairness such that the decision needed to be set aside and re-made. It was Mr Karim’s submission, however, that credibility was irrelevant in the face of the evidence before the judge which demonstrated the required dependence and that the appeal should simply be allowed.
14. I do not accept that credibility is irrelevant. The question of dependency had to be decided on the reality of the situation between the appellants and the sponsor and not solely on the face of the documentary evidence submitted before the judge. The judge was therefore entitled to consider credibility as a relevant issue. However, and considering Ms Lecointe’s concession, I accept that the judge ought to have given the sponsor an opportunity to address the accusation of having engineered the situation, particularly when that had not been part of the respondent’s case at the hearing, and that there are therefore justifiable concerns about procedural fairness. Indeed that was the basis of the grant of permission.
15. In the circumstances, I set aside Judge Farrelly’s decision. It seems to me that where procedural irregularity and fairness are the reasons for setting aside a decision, the most appropriate course is for the matter to be heard afresh by another judge in the First-tier Tribunal. I do not consider that it would be appropriate to preserve findings in such circumstances.

Notice of Decision
16. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. The decision is set aside. The appeal is remitted to the First-tier Tribunal to be dealt with afresh, with no findings preserved, pursuant to section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Statement 7.2(b), before any judge aside from Judge Farrelly.

Signed: S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 March 2023