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IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-005385
First-tier Tribunal No: EA/11807/2021
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 28 April 2023
UPPER TRIBUNAL JUDGE LINDSLEY
DEPUTY UPPER TRIBUNAL JUDGE SYMES
ENTRY CLEARANCE OFFICER
(NO ANONYMITY ORDER MADE)
For the Appellant: Ms A Everett, Senior Home Office Presenting Officer
For the Respondent: No attendance
Heard at Field House on 7 March 2023
DECISION AND REASONS
1. The claimant is a citizen of Pakistan born in 1975. She applied for an EEA family permit under the 2016 Immigration (EEA) Regulations to come to the UK as the dependent of her daughter, Shabana Qureshi and son in law, Adnan Akhtar, a Swedish citizen who is exercising Treaty rights in the UK. This application was refused by the entry clearance officer on 5th July 2021 on the basis that it was not believed that she had shown she was an extended family member under Regulation 8 of the 2016 Regulations. Her appeal against the decision was allowed by First-tier Tribunal Judge Cohen in a determination promulgated on the 15th August 2022.
2. Permission to appeal was granted to the Secretary of State by Judge of the First-tier Tribunal Barker on 28th September 2022 on the basis that it was arguable that the First-tier judge had erred in law in failing to provide adequate reasons for the finding that the sponsor was credible and therefore for finding that he was divorced from his first wife and lawfully married to the claimant’s daughter in the absence of a divorce certificate.
3. The matter came before us to determine whether the First-tier Tribunal had erred in law, and if so to decide if any error was material and the decision needed to be set aside. There was no attendance for the claimant but we were satisfied that she had been notified of the hearing and that it was in the interests of justice to proceed absent any representative appearing on her behalf.
Submissions – Error of Law
4. In the grounds of appeal for the Secretary of State it is argued, in summary, as follows. There are no reasons given by the First-tier Tribunal for finding the sponsor a credible witness and therefore for finding that, absent any documentation, the claimant’s daughter had legally divorced her first husband and married the sponsor, when such documentation would clearly have been easily obtainable and so ought to have been before the First-tier Tribunal.
5. Ms Everett did not have access to the claimant’s bundle that was before the First-tier Tribunal but we were able to show her this bundle electronically, and show her the marriage certificate for Shabana Qureshi and Adnan Akhtar dated 21st February 2020, which appears at page 45 of the bundle, which makes it clear that Mr Akhtar had not previously been married but Ms Qureshi was divorced and also Ms Qureshi’s divorce certificate, which appears at page 92 of the same bundle, which shows she was divorced on 22nd November 2017. The skeleton argument for the claimant which was before the First-tier Tribunal also drew attention to this divorce certificate. In these circumstances Ms Everett accepted that the argued for error was not material.
Conclusions – Error of Law
1. The refusal decision against which this appeal arises identifies the lack of a divorce certificate for Ms Qureshi as being central to the reasoning which led to the application being refused as it was vital evidence which documented the relationship between the claimant and the EEA sponsor Mr Akhtar.
2. The claimant clearly corrected this lack of evidence when compiling her bundle for the First-tier Tribunal hearing and drew attention to the divorce certificate in her skeleton argument.
3. The decision of the First-tier Tribunal, at paragraph 10, simply refers to the judge being satisfied that the sponsor was validly divorced on the totality of the evidence, and becomes confused that the person who had been previously married was not Mr Akhtar but Ms Qureshi. We find that the reasoning was not adequate, and so erred in law, but in light of the fact that the missing divorce certificate showing Ms Qureshi to have been divorced prior to her marriage to Mr Akhtar was in fact before the First-tier Tribunal we find that this error was not a material one. We therefore uphold the decision of the First-tier Tribunal allowing the appeal.
1. The making of the decision of the First-tier Tribunal did not involve the making of a material error on a point of law.
2. We therefore uphold the decision of the First-tier Tribunal allowing the appeal under the Immigration (EEA) Regulations 2016.
Judge of the Upper Tribunal
Immigration and Asylum Chamber
13th March 2023