IA/00135/2021

• Status of case: Unreported
• Hearing date: 22 Mar 2022
• Promulgation date: 3 May 2022
• Publication date: 19 Jul 2024
• Last updated on: 19 Jul 2024

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number:UI-2021-001260
IA/00135/2021; EA/50818/2020V


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 22nd March 2022
On the 3rd May 2022


Before

UPPER TRIBUNAL JUDGE LINDSLEY


Between

NISHAN SINGH
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Mr Z Raza, of Counsel, instructed by Charles Simmons Immigration Solicitors
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer


DECISION AND REASONS

Introduction
1. The appellant is a citizen of India born in 1992. He arrived in the UK on 30th January 2010 with entry clearance as a Tier 4 student migrant valid until 30th October 2012. After the expiry of that leave to remain the appellant overstayed. On 7th August 2020 the appellant applied for a residence card as the extended family member, namely as the unmarried durable partner of Ms Paulauskaite, his sponsor and a citizen of Lithuania born in 1993. The sponsor has been granted pre-settled status on 20th June 2019. The application was refused on 20th November 2020. His appeal against the decision was dismissed by First-tier Tribunal Judge JK Thapar in a determination promulgated on the 1st July 2021.
2. Permission to appeal was granted by Judge of the First-tier Tribunal Neville on 16th November 2021 on the basis that it was arguable that the First-tier judge had erred in law in making a decision that was arguably not rationally open to the her, and in particular it was found to be arguable that she misread the direction of payments between the appellant and sponsor; it is arguable that she failed to explain why it was not believable that a person would not tell a creditor their new address and simply continue to pay them; it is arguable that she misunderstood that the solicitors were acting against the appellant and not for him; it is arguable that she failed to explain why the reasoning for the inconsistency as to the number of flats was not plausible; and it is arguable that she made an impermissible value judgment as to the importance of an engagement.
3. The matter came before me to determine whether the First-tier Tribunal had erred in law, and if so whether the decision and any finding should be overturned. The hearing took place via Teams, and neither party objected to this manner of hearing. There were no significant issues of audibility or connectivity, and I therefore found that the hearing was fairly conducted.
Submissions- Error of Law
4. In grounds of appeal from Mr Z Raza of Counsel and in oral submissions from M it is argued, in short summary, for the appellant as follows.
5. It is argued that the First-tier Tribunal errs in law for failure to take into account material matters; for failure to give adequate reasons on material matters; by making mistakes of fact on material matters; and by ultimately by making an irrational decision that the appellant and Ms Paulauskaite are not cohabiting in a durable relationship.
6. These errors are evidence, it is said, by the following:
• At paragraph 16 of the decision it is said that it was adverse to the appellant’s case that he did not mention that he met via an online platform when this is not reasonably the case given the oral evidence of the appellant and his partner was consistent on this point.
• At paragraph 17 of the decision it was found to be incredible that the appellant and his partner could not give a lot of specific information about their engagement. However the information that they gave was consistent, and potential and value and importance of the event would vary from couple to couple.
• At paragraph 20 of the decision it is found that the appellant was not consistent with respect to the number of flats within their building. The appellant said 12, whereas the sponsor said 50 but then clarified that their building was within a larger complex of buildings and that there were 12 flats within their particular building. The First-tier Tribunal erred in not finding the evidence consistent.
• At paragraph 24 of the decision it is recorded that the appellant did not bring the front pages of his TSB statement because of his financial commitments when in fact he said it was because his view that the Tribunal wished to view the transactions within his account.
• At paragraph 26 of the decision there was an acceptance that regular funds were transferred between the couple, but no weight was given to this when considering if they had a committed relationship.
• At paragraph 26-28 of the decision there is a factual error, as sums remitted on 13th and 18th March 2021 are payments made by the sponsor to the appellant and not the other way around as demonstrated by the bank statements of both appellant and sponsor.
• At paragraph 29 of the decision there is a perverse finding. Lowell Solicitors were not the appellant’s solicitors but were solicitors for the creditor, and the appellant had made an agreement with them to repay the debt which he was doing.
• At paragraph 30 of the decision it was not put to the appellant that the document was not previously submitted with the application so this cannot properly damage the sponsor’s credibility.
• Further, it is argued. that at no point in the decision was following positive evidence considered: the considerable documentary evidence demonstrating their cohabitation, the consistent evidence as to how they met, their joint financial commitments, the knowledge of each other’s finances, and the photographic evidence of their relationship. It is argued that there were no actual inconsistencies in their evidence, and ultimately there was no evidence that supported the finding that they were not in a genuine and subsisting durable relationship.
7. The respondent did not lodge a Rule 24 notice but Ms Cunha made submissions in which she conceded that the First-tier Tribunal had made errors of law. She had access to the First-tier Tribunal presenting officer’s record of proceedings and from this she accepted that the evidence with respect to the building was in fact consistent at paragraph 20 and that it was an error of law to have found otherwise. She also accepted that there were factual errors with respect to the bank statement evidence at paragraphs 22 to 24 of the decision. With respect to the issue of the debt she said from the record of proceedings the debt had in fact been paid off in 2016, and the letter of 2018 was only confirmation that this had taken place, and so the address on this document was not properly relevant to the credibility of the appellant. As a result Ms Cunha, accepted that the decision of the First-tier Tribunal had to be set aside on the basis of the grounds of appeal.
8. I informed the parties that I accepted their joint position that the First-tier Tribunal had erred in law, and that the decision and all of the findings would have to be set aside. Mr Raza submitted that it would be appropriate to remit the appeal to the First-tier Tribunal for remaking as there is only one issue in the appeal, and it would have to be entirely remade with evidence from two witnesses and quite extensive documentary evidence. I accepted that due to the extent of the fact-finding on remaking it would be appropriate to remit to the First-tier Tribunal. Ms Cunha for the respondent was neutral on the issue.
Conclusions – Error of Law
9. The only factual issue in this appeal was whether the appellant and Ms Paulauskaite are in a durable relationship.
10. I find it was not rationally open to the First-tier Tribunal to find that it was not credible that the couple did not remember details of their engagement in June 2019 beyond going to a restaurant, and the appellant and providing Ms Paulauskaite with a ring, as noted in the grant of permission there was an implicit value judgment, unsupported by further reasoning, that this must have been a very important event which would have been remembered in detail.
11. It was also not rationally open to the First-tier Tribunal to find that the evidence with respect to the number of flats was ultimately materially inconsistent at paragraph 20 of the decision.
12. I also find that the critique of the appellant at paragraph 29 of the decision with respect to having failed to change an old address, dating from 2012, with a solicitor acting for a creditor with respect to a debt which he was paying off is irrational and irrelevant to the issue being determined, and that this ignored the explanation in the appellant’s evidence that he kept the old address redirection because he is registered with a GP there and cannot change this because of his immigration status.
13. I further find that it is not a sufficiently reasoned consideration that the appellant’s credibility was affected by the fact that all the evidence of cohabitation had not been provided with the original application as is found at paragraph 30 of the decision.
14. I find that there was also a failure to consider material evidence in the form of the dated photographic evidence of the relationship in the appellant’s bundle from social media going back to February 2019 and the evidence of cohabitation which includes lots of evidence the appellant pays for the utilities, and key medical documents for his partner from January 2019 and her payslips and employment letter also from June 2019.
15. Whilst it was open to the First-tier Tribunal to find that there was a failure by the witnesses to explain a large recently transferred sum between the appellant and sponsor, and to find that the account of their financial circumstances and the nature of the appellant’s previous relationship with Natalie who had lived at the address was vague given the errors I have found, that the decision is not sufficiently reasoned, relied upon irrational considerations and factual misunderstandings and failed to consider material evidence, it must be set aside. I set aside all of the findings and remit the appeal to be reheard de novo by the First-tier Tribunal given the extent of the remaking.


Decision:

1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

2. I set aside the decision of the First-tier Tribunal and all of the findings.

3. I remit the remaking of the decision to the First-tier Tribunal.





Signed: Fiona Lindsley Date: 22nd March 2022
Upper Tribunal Judge Lindsley