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IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-005776
First-tier Tribunal No: EA/15693/2021
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 28 April 2023
UPPER TRIBUNAL JUDGE KEBEDE
(no anonymity order made)
SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Mr E Akohene, instructed by Afrifa & Partners Solicitors
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer
Heard at Field House on 14 March 2023
DECISION AND REASONS
1. The appellant is a citizen of Sierra Leone born on 2 July 2005. He appeals, with permission, against the decision of the First-tier Tribunal dismissing his appeal against the respondent’s decision to refuse to issue him with an EU Settlement Scheme (EUSS) Family Permit under Appendix EU (Family Permit) to the Immigration Rules.
2. The appellant applied on 23 April 2021, together with Nkeah Mansaray, the spouse of the sponsor, for an EUSS Family Permit as the close family member of the EEA national sponsor, Alexandre Mansaray, a French national living in the UK.
3. At the time of the application, the appellant was considered to be the son of the sponsor, and the application was made on that basis. According to the sponsor, in a statement prepared for the appeal, the appellant was (he believed) born from a relationship he had had in Sierra Leone with a woman from 1998 until he left Sierra Leone for France in 2002. They were not married and the relationship ended after the appellant was born. The sponsor said that he had taken part in raising the appellant and believed that he was his biological father. It was only when his relationship to the appellant was disputed by the respondent and he took a DNA test that he found out that the appellant was not actually his biological son. He married another woman on 10 November 2020, but got divorced from her on 11 May 2020. In the meantime, he met his wife, Nkeah Mansaray, in Sierra Leone in January 2017 and they maintained a relationship whilst he was living in the UK. They got married in Sierra Leone on 13 December 2020. His son, the appellant, was living with his wife and they applied together to join him in the UK.
4. The respondent refused both applications on 29 October 2021. The application of Nkeah Mansaray was refused on the basis that the respondent did not accept that her marriage certificate for her marriage to the sponsor was genuine as there was no evidence that his previous marriage had been dissolved, and it was therefore not accepted that she was a ‘family member of a relevant EEA citizen’. The appellant’s application was refused on the basis that the respondent was not satisfied, on the limited evidence produced, of the relationship between him and the sponsor and it was therefore not accepted that he was a ‘family member of a relevant EEA citizen’.
5. The appellant and Ms Mansaray both appealed against the respondent’s decisions. Their appeals came before First-tier Tribunal Judge Lucas on 27 April 2022. On the basis of evidence produced before him showing that the sponsor was divorced prior to his marriage to Ms Mansaray, Judge Lucas found that the sponsor was free to marry her and he therefore allowed her appeal. However, the judge dismissed the appellant’s appeal. It was accepted, on the DNA evidence, that the sponsor was not the biological father of the appellant, but the sponsor gave evidence before the judge that he was devastated to find out that he was not his son and that he had treated him as his son. It was argued before the judge that the appellant qualified as an extended family member. The judge found that there was no evidence to support the sponsor’s claim that he had been, or continued to be, responsible for the appellant.
6. The appellant then sought permission to appeal to the Upper Tribunal on the grounds that the judge had erred by failing to find that the appellant was an extended family member of the sponsor and by take irrelevant matters into account. It was asserted that the judge had placed too much reliance upon documentary evidence without giving weight to the sponsor’s evidence about his relationship to the appellant.
7. Permission was granted in the First-tier Tribunal, although on the erroneous understanding that the appellant was the son of the sponsor’s wife.
8. The matter then came before me. Mr Akohene clarified that the appellant was not related to Ms Mansaray and that he was the son of a woman with whom the sponsor had previously been in a relationship.
9. Mr Akohene submitted that the appellant’s application had been made on the honest belief of the sponsor that he was a direct family member and that the fact that they were not related biologically only became known following the DNA test which was taken after the refusal decision. He submitted that it had been open to the judge to look at the case on the basis of the appellant meeting the criteria as an extended family member of the sponsor, as there was no limit to the distance of the relationship. He should have relied upon the sponsor’s evidence, which he had not found to give rise to any credibility issues, as to the relationship. As for the question of dependency, the judge had conflated the concept of sole responsibility under paragraph 297 of the immigration rules and the concept of dependency within the Regulations/ EUSS. Based on the evidence before the judge, which included money transfers, witness statements and the appellant’s oral evidence, and the fact that the appellant had been living with his wife and that the sponsor had been sending money to support them both, dependency had been established.
10. Mr Clarke submitted that the appellant’s grounds were misconceived. He referred to the decision in Batool & Ors (other family members: EU exit)  UKUT 219 in submitting that the appellant could not rely on being an extended family member as he had not made an application for facilitation of entry on that basis. As for the original claim, that the appellant was a family member, that would be considered under FP6.1 of Appendix EU (Family Permit) and the appellant would have to meet the definition under Annex 1, which he could not do. He could not therefore succeed on any basis. Article 8 was not a matter to be considered, as there had been no application to raise it as a new matter and no section 120 notice had been filed. The appeal had to be dismissed.
11. The appellant’s application was made for an EUSS family permit, under Appendix EU (FP) of the immigration rules, on the basis that he was a family member of a relevant EEA national, namely his father Alexandre Mansaray. It has been established that he is not the biological son of Alexandre Mansaray, the EEA national sponsor. In order to meet the definition of “family member of a relevant EEA citizen” as a “child” of a relevant EEA citizen under Annex 1(d), he would have to show that he was “(a) the direct descendent under the age of 21 years of a relevant EEA citizen”, which he could not do. He was not able to meet any of the other definitions of “child” in Annex 1 and, as Mr Clarke submitted, the definition of ‘child’ specifically excluded, at (a)(xi), “a child cared for by a relevant EEA citizen (or, as the case may be, by a qualifying British citizen) or their spouse or civil partner solely by virtue of a formal or informal fostering arrangement”. In the circumstances, the appellant could not qualify for an EUSS family permit under Appendix EU (FP) of the immigration rules as a ‘family member’ of the sponsor.
12. It was no doubt for that reason that the appellant’s case was presented on the basis of him being an ‘extended family member’ of the sponsor. Judge Lucas dismissed that argument on the grounds that there was very limited evidence to show that the sponsor had been responsible for the appellant and that he had treated him as his son. The grounds of appeal challenge the judge’s approach in that regard, asserting that he ought to have accorded more weight to the oral evidence of the sponsor, rather than focussing on the lack of documentary evidence. In addition, Mr Akohene challenged the judge’s approach on the basis that he had conflated the issues of sole responsibility under paragraph 297 of the immigration rules and dependency in the EU context.
13. However, neither challenge is material, given that the appellant could not qualify under the EUSS as an extended family member in any event, since he had made his application after the specified date of 31 December 2020. He could not rely on being an extended family member under the EEA Regulations 2016 as the regulations ceased to exist after that date. Neither could he qualify under the immigration rules in Appendix EU (FP) as there was no longer a category of extended family members. He could only meet the definition of family member as an extended family member if he fell within the scope of the Withdrawal Agreement, under Article 10(2) or (3). However he clearly could not do so as his entry and residence in the UK was not being facilitated, and he had not made an application for facilitation for entry and residence, under the EEA Regulations 2016 prior to 31 December 2020. That was made clear in the case of Batool, upon which Mr Clarke relied.
14. In the circumstances, whether or not the judge erred in his approach to the question of dependency, any arguable error was not material as he properly dismissed the appeal on the basis that the appellant could not qualify under the EUSS as an extended family member. As Mr Clarke submitted, the appellant’s grounds of challenge did not seek to identify any way in which the appellant could benefit under the immigration rules. The grounds do not address the relevant issues in the appeal and raise no material challenges to the judge’s decision. Accordingly I uphold the decision.
Notice of Decision
15. The making of the decision of the First-tier Tribunal did not involve a material error on a point of law requiring it to be set aside. The decision to dismiss the appeals stands.
Signed: S Kebede
Upper Tribunal Judge Kebede
Judge of the Upper Tribunal
Immigration and Asylum Chamber
14 March 2023