Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber)s Appeal Numbers:
UI-2022-000719 [EA/12601/2021]
UI-2022-000720 [EA/12603/2021]

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 7 July 2022
On the 19 August 2022

Before

UPPER TRIBUNAL JUDGE PERKINS
DEPUTY UPPER TRIBUNAL JUDGE MAILER

Between

Mohammad Zubair Sediqi
(anonymity direction not made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M Ahmad, family friend of the appellants
For the Respondent: Mr S Kotas, Home Office Presenting Officer
DECISION AND REASONS
(extempore judgment)
1. We are going to give our decision now and we are going to say at the outset that we find an error of law, and are going to set aside the decision of the First-tier Tribunal and to allow the appeal outright. These are our reasons.
2. The presentation of this appeal has been unusual. At times the hearing became almost a round table conversation. If that is a matter of fault, then it is I who should be criticised. Both representatives have assisted us considerably but I think it is right to put on record that Mr Ahmad acting as friend of the appellant has, in the right sense, been a very persistent advocate on his behalf, pointing out from a very thorough knowledge of the papers that most of the points of concerns have been addressed at least in part and the appellant should be very grateful to Mr Ahmad for the assistance he has given us.
3. The appellant is a citizen of Afghanistan who has appealed a decision of the First-tier Tribunal dismissing his appeals against the decisions of the respondent refusing him an EEA family permit to join his EEA sponsor, his father-in-law, in the United Kingdom.
4. Oddly, there were two appeals here. The first is against a decision dated 6 April 2021 and the second is against a decision dated 23 April 2021. The decision dated 6 April 2021 asserted that the appellant had not established dependency and the decision of 23 April 2021 only raised the objection that the appellant’s sponsor was not a qualified person. However, although relying on that reason, the Entry Clearance Officer did not indicate that the other requirements were met. The First-tier Tribunal decided that the appellant’s sponsor is a qualified person and that finding stands. However, the First-tier Tribunal also decided that the appellant had not shown dependency. The reasons for that finding are challenged.
5. Permission to appeal to the Upper Tribunal was given by Upper Tribunal Judge Blum and he stated paragraph 2 of his reasons:
“It is arguable that the judge erred in law by narrowly focussing on the age, health and financial circumstances of the sponsor where there was evidence of money remitted to the appellant where the appellant’s wife and children had previously entered the UK on the basis that they were dependent family members of a qualified person.”
6. Judge Blum noted that the findings were undermined by the First-tier Tribunal Judge holding, wrongly, that other family members were not required to establish dependency. We find this more than arguable.
7. We find that the appellant’s argument stands up and that the evidence has been considered inadequately. Rather than considering the evidence that was adduced, the judge disbelieved the evidence of dependency because the appellant had relied on a false address and had previously identified himself as a self-employed person on his passport when that was inconsistent with his present case. These were not points taken by the Entry Clearance Officer.
8. Mr Kotas agreed that there has been procedural irregularity because the appellant had been disbelieved for reasons that had not been suggested by the Entry Clearance Officer and they were not points that should have been apparent to the appellant.
9. Taking these things together, we are satisfied that the reasons given are unlawful. They do not deal with the evidence but rather relied on points that were not taken and on which the appellant was not on notice.
10. We set aside the decision of the First-tier Tribunal.
11. We now have to decide what to do next. It is, of course, for the appellant to prove his case on the balance of probability. Here, there is some conflict. Mr Ahmad urges us to allow the appeal immediately. This is a case where the appellant, consistent with his claim that he is now living in very poor circumstances, has asked, albeit unsuccessfully, for expedition.
12. Mr Kotas argues that we should require, or at least give an opportunity, for further evidence to be considered dealing with the present up-to-date position.
13. With respect, these are both sensible points in their way and we have to choose between them. Primarily, we are dealing with an appeal that has already been decided in part on evidence that has already been produced.
14. We find it significant that close family members of the appellant have established dependency. One of those was the appellant’s wife. It was her case that she worked as a teacher in Afghanistan and had a regular income. Her departure to the United Kingdom would diminish the resources available for the appellant and would make it harder for him to manage without funds from the United Kingdom. There is no serious challenge to the fact that money has been sent regularly from the United Kingdom but there is a lurking concern, raised properly by Mr Kotas, that the appellant is not dependent but is able to manage to support himself.
15. The Judge’s reasons for disbelieving the appellant are illuminating but wrong. One of them is the reference to his being ‘self-employed’ in his passport, whilst in the grounds of appeal to the Upper Tribunal the appellant says the description “self-employed” is commonly used in passports in Afghanistan. The assertion is not to be regarded as good evidence of the person not having an employer but rather is an indication that he is not somebody working in a particular position for the government but is maintaining himself. Some support for this was provided in evidence before us when we were shown a copy of the appellant’s wife’s passport, where she is described as a teacher, and who is referred to on that passport as ‘self-employed’.
16. Another reason for disbelieving him was that he gave inconsistent evidence about his address. The appellant maintains however that he did give a proper address. He was living in very modest circumstances - I think he used the description “a mud hut on the hillside” - and it was just not fair to attribute the need for a United Kingdom style precise address to somebody living in those conditions. This is exactly the kind of point that might have been perfectly apparent to the Entry Clearance Officer, which is why they were not taken, and is a very good example about why judges should be very loath to take points for themselves which were not raised by people in a position to do it who may have the benefit of some local knowledge.
17. Another point taken against the appellant is that he had used a different address on another occasion; but his answer to that, again in his grounds of appeal to the Upper Tribunal, is entirely straightforward. He says that both addresses are correct. He had moved house.
18. There is a suggestion in the papers that the appellant was living in Pakistan and this was based on evidence in the passport that he had been moving between Afghanistan and Pakistan but it is the appellant’s case that he moved to Pakistan solely for the purpose of getting to Islamabad to make his necessary applications and more than one visit was required. Again, this is plausible and we are inclined to accept it. All of these things point in favour of the appellant, such as his other close family members being dependent.
19. It would have been good to have had some up-to-date evidence. It might have been reassuring. Its absence does give a lurking concern - there is no escaping that - and Mr Kotas has quite properly sought to exploit that point.
20. We have to look at the evidence as a whole and be fair to all parties. The appellant is not professionally represented. Mr Ahmad’s tenacity is commendable but he cannot be expected to behave in the way an experienced solicitor would behave. He may well not have appreciated that the case would have been assisted by that kind of evidence and an application to serve it - we do not know. It is also plain that the appellant has been complaining consistently that life is very difficult for him in Afghanistan; that travelling even to Pakistan is risky; that he has been ill-treated at the borders and his financial circumstances are becoming worse.
21. Doing the best we can on the evidence before us, we find that the dependency that existed for his children existed for him when he made his application and probably exists now and the proper thing to do, having set aside the decision, is to allow the appeal, which we now do.
Notice of Decision
The First-tier Tribunal erred in law. We set aside its decision and allow the appellant’s appeal.
Jonathan Perkins
Signed

Jonathan Perkins

Judge of the Upper Tribunal
Dated 28 July 2022