Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/06563/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 September 2016
On 27 September 2016

Before

UPPER TRIBUNAL JUDGE PITT
DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

harish balaji
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms F. Allen of Counsel, instructed by A & P Solicitors
For the Respondent: Mr. D. Clarke, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Khawar, promulgated on 18 December 2015, in which he dismissed the Appellant's appeal against the Respondent's decision to refuse to issue him with a residence card as confirmation of his right to reside in the United Kingdom.

2. Permission to appeal was granted as follows:

"Although much of the evidence highlighted in the grounds does not appear to be material to the issue of dependency, and largely goes to the familial relationship, it is at least arguable that the judge might have failed to consider some material aspects of the evidence. In finding that the appellant failed to produce sufficient evidence of "adequate funds" to show that he was "being maintained throughout his life by the sponsor" [26] it is arguable that the judge might have applied the wrong legal test."

3. The Appellant attended the hearing together his Sponsor, Mr. [BP]. We heard submissions from both representatives following which we reserved our decision.

Submissions

4. It was agreed that there were three issues in the appeal as follows; whether the Appellant had been dependent on the Sponsor while he had been in India; whether he was dependent on the Sponsor in the United Kingdom; and whether he was a member of the same household of the Sponsor in the United Kingdom. In respect of all three issues, Ms Allen submitted that material evidence had not been taken into account.

5. In relation to the first issue, dependency in India, Ms Allen referred us to paragraphs [24] and [25] of the decision. We were referred to the letter from the Federal Bank Limited regarding confirmation of the fixed deposit (page 43 of the bundle). In addition to this letter, the Appellant had provided the statement for the Sponsor's account in Jaffna, the original of which had been provided at the hearing (page 46). This showed that on 17 October 2008 money had been transferred to another account. In addition the Sponsor's witness statement had set out how he had taken out this bank loan (paragraph [14]). There was also a receipt from the British Institute of Technology & E-commerce dated 14 March 2011 addressed to the Sponsor (F1 of the Respondent's bundle). It was submitted that there had been evidence before the judge of how the Sponsor had financed the Appellant's studies.

6. Additionally, there had been evidence before the judge of money transfer receipts. The decision referred to seven such receipts, described as "a handful" [26], but it was submitted that in fact the correct figure was nearer to 18. These were dated between 2008 to 2014. We were referred to copies of money transfers sent to India (pages 83 to 92 of the Appellant's bundle), and copies of money transfers sent to the Appellant when he was in the United Kingdom (pages 94 to 98). In relation to the statement that one had been transferred to an unidentified third party [26], we were referred to the transfer on page 86 which had been signed by the Appellant's mother and which did not contain any other names apart from that of his mother. It was submitted that this transfer had clearly been made to the Appellant's mother.

7. For further evidence of dependence we were referred to the statements in support, and the documentary evidence consisting of the bank letter and money transfer receipts. It was submitted that the Appellant was dependent on the Sponsor when he was in India and the judge had failed properly to consider the evidence.

8. In relation to membership of the Sponsor's household in the United Kingdom, we were referred to paragraph [23] where the judge had found that the Appellant and Sponsor were not living in the same household owing to the oral evidence. It was submitted that there was plenty of documentary evidence, including utility bills, bank statements and correspondence from the GP, which indicated that the Appellant and Sponsor were living at the same address. Ms Allen submitted that the judge had not taken into account this evidence.

9. It was submitted that this evidence also went to the issue of whether or not the Appellant was dependent on the Sponsor in the United Kingdom. The judge had stated that the Appellant's uncle's bank statements had not been provided in full [29]. We were referred to the statements (pages 47, 49 and 51). It was submitted that these were complete statements. We were referred to pages 51 and 53 which showed transfers being made to the Appellant.

10. The judge had stated that the Appellant's bank accounts had not been produced [29], but they had been provided (pages 74 to 80 of the Appellant's bundle). They showed receipts of funds from the Sponsor, and indicated that this was the main source of income for the Appellant.

11. In response Mr. Clarke relied on the Rule 24 response, apart from paragraph 3 which was withdrawn. He submitted that the case of Lim [2015] EWCA Civ 1383 contained the definition of dependency. We were referred to paragraph [32]. "If he can support himself, there is no dependency, even if he is give financial material support by the EU citizen. Those additional resources are not necessary to enable him to meet his basic needs." He submitted that the funds received by the Appellant did not go to meet his basic needs. This went to the issue of materiality of any error.

12. In relation to membership of the Sponsor's household, we were referred to paragraphs [22] and [23] of the decision. The Appellant claimed to share a single room with the Sponsor but there was a huge amount of inconsistent evidence, especially given the claim that they had been living there for a substantial period of time. The fact that there was correspondence to the Appellant and Sponsor going to the same address was not enough, especially given that there were other people living at the property. He submitted that the evidence showed only that they lived in separate rooms in a multiple occupancy home. There was no error of law in the judge's finding.

13. In relation to the Appellant's prior dependency on the Sponsor, we were referred to paragraph [25] of the decision. Despite the fact that there was a letter from the Federal Bank Limited (page 43) and a bank statement (page 46), there were larger issues of credibility regarding how the Sponsor was capable of coming up with this amount of money, and how he was able to put this money into a bank account so the Appellant could take out a loan. He submitted that the Appellant was meeting his basic means from the loan. He had been able to take the loan out in order to meet his basic needs and the additional money was going towards his fees and education.

14. The money transfers were for modest amounts and it was open to the judge to find that there was no dependency on the basis of these (pages 83 to 93). We were referred to paragraph [26] of the decision. In relation to the money transfers from 2011 to 2013, these were difficult to read and were not for large sums of money (pages 94 to 98). The Appellant would need more to demonstrate that his basic needs were being met by this money.

15. In relation to the standard of proof it was open to the judge to require the evidence referred to in [27] and [28]. There was a high burden on the Appellant to show that the money was for his basic needs and the evidence did not show this. The Sponsor was simply not earning enough money.

16. In response Ms Allen submitted that this was not an Appendix FM type case and therefore there was no list of specified evidence which had to be provided. If the judge had concerns regarding the financial affairs of the Sponsor, he had not put the Appellant on notice that he had such concerns. The modest amounts which were transferred did not take into account the evidence in the Sponsor's witness statement that he had giving the Appellant money and bought him clothing, stationery etc [18] and [19].

17. She submitted that Mr. Clarke had misunderstood the evidence regarding the loan. The Sponsor had provided funds in a fixed deposit account, and the Appellant had taken out a loan based on this fixed deposit in order that he could access the money immediately. The Appellant was not financially independent. He had been dependent on his uncle when he had been in India, and when he had come to the United Kingdom. The judge had simply failed to take into account all of the material evidence before him.

Findings and Conclusions

18. As set out above, there were three issues in this appeal. We will address these in the order set out in the decision, present membership of the same household, prior dependency and present dependency.

Membership of the same household

19. The findings in relation to present membership of the same household are found in [22] and [23]. The judge states:

"As to membership of present household I do not find the assertions made by the Appellant and Sponsor to be credible due to stark inconsistencies during their oral evidence". [22]

20. He sets out the evidence given by the Appellant, and compares that to the evidence given by the Sponsor. The Appellant gave evidence that there was one double bed in the room, but the Sponsor said that there were two beds. The Appellant said that there was no television, whereas the Sponsor said that there was a small television. The Appellant said that there was only a bed and wardrobe, whereas the Sponsor said that there was a table, two chairs, a cupboard, and the television. In paragraph [23] he states:

"In my judgment the aforesaid inconsistencies between the Appellant and Sponsor as to the contents of the one room that they claim to share provide clear evidence of a manufactured/fabricated account. In my judgment it is inconceivable that if they were telling the truth one of them would not know whether there was one bed or two beds in the room or whether there was a television or not in the room. Therefore I do not accept, despite there being correspondence emanating from various individuals/bodies to suggest a common address, that the Appellant is living as a members of the Sponsor's household. They are clearly not living in the same room as claimed."

21. The judge acknowledges the documentary evidence provided, but places more weight on the oral evidence. We find that it was the open to the judge to place more weight on the oral evidence, given the inconsistencies in that evidence. The judge was aware that they lived in a shared occupancy dwelling, and it was open to him to find that, despite evidence of correspondence being sent to both of them at the same address, the Appellant was not part of the Sponsor's household. We find that there is no error of law in the judge's approach to the evidence of membership of the same household.

Prior dependency

22. The judge dealt with the issue of prior dependency from paragraphs [24] to [28]. He set out the evidence of the 2011 bank loan [25]. He states:

"Although letter dated 14th November 2008 suggests that the Sponsor provided a sum of 800,000 Rupees, deposited in the name of the Appellant as a fixed deposit, apart from such assertion there is in fact no direct evidence as to the provenance of such funds emanating from the Sponsor."

23. At the hearing Ms Allen directed us to the other evidence relating to this loan, including the bank statement (page 46), and the Sponsor's witness statement (page 8). We find that there was other evidence relating to the loan, but we find that this evidence shows only that the Sponsor assisted the Appellant to pay for his education on one occasion. In and of itself it does not show that the Appellant was dependent on the Sponsor. Even if the judge had set out all of the evidence relating to this loan, it would not have shown prior dependency by itself.

24. In paragraph [26] the judge sets out the evidence of the historical money transfer receipts. We have carefully considered the evidence before the First-tier Tribunal. At the hearing we were referred to pages 83 to 92, and 94 to 98 of the Appellant's bundle. Pages 83 to 92 consist of ten money transfer receipts for remittances made to the Appellant's mother in India. The Appellant came to the United Kingdom in April 2011. It is not easy to read the dates, but those at pages 83 to 90 appear to be dated prior to April 2011. Those on pages 91 and 92 are dated 2013 and 2014, at which stage the Appellant was no longer living in India. We accept Ms Allen's submission that the one which is identified by the judge as being a transfer to an "unidentified third party" was sent to the Appellant's mother, given that it is her signature on the page acknowledging receipt and there is no other name on it.

25. However, there remains the fact that the evidence provided shows only a maximum of eight money transfers covering a three year period prior to the Appellant entering the United Kingdom. The earliest receipt is dated 2008. While we find that it was not necessary to show "adequate funds to suggest that the Appellant was being maintained throughout his life by the Sponsor", we find that the evidence provided showed relatively modest amounts sent by the Sponsor to the Appellant's mother on only eight occasions for a period of three years. There was no evidence that the remittances were used for the Appellant himself but, even if there had been, the First-tier Tribunal was not obliged to accept that these relatively modest amounts showed that the Appellant was dependent on the Sponsor while living in India prior to coming to the United Kingdom.

26. The money transfer receipts on pages 94 to 98 show transfers made by the Sponsor to the Appellant while the Appellant was in the United Kingdom. Again these are not very easy to read, but given that there are only four provided for 2013, at which point the Appellant had been living in the United Kingdom for some two years, they do not show that the Appellant was dependent on the Sponsor. We accept that there was also evidence of a loan taken out in 2011, but this was to assist the Appellant to pay for his studies. While we accept that it does not appear that the judge has referred to these money transfer receipts, we do not find this is a material error as they do not show that the Appellant was dependent on the Sponsor. We find that it was open to the judge to find that the Appellant has not discharged the burden of proof upon him to establish that he was previously financially dependent on the Sponsor [28].

Present dependency

27. In relation to present dependency, the judge addresses this in paragraph [29]. We were referred by Ms Allen to the copies of the Appellant's bank accounts in the Appellant's bundle, and we find that the judge erred when he stated that the Appellant's bank accounts had not been produced. We have carefully considered these bank statements. They cover only a relatively short period of time between 1 August 2014 and 16 October 2014. These were the only bank statements provided for the Appellant. They show receipt of funds from the Sponsor, but they cover a very limited period. The Sponsor's bank accounts provided also covered a period in 2014, from 16 June 2014 to 15 October 2014.

28. The decision is dated 4 February 2015 and the hearing was on 8 September 2015. The most recent piece of evidence provided to show transfer of funds from the Sponsor to the Appellant was dated over three months prior to the date of decision and almost a year prior to the hearing. There is no evidence of any transfers made after October 2014. We find that the evidence provided, even if it had been considered by the judge in its entirety, was not enough to establish present dependency on the Sponsor. We find that there is no material error of law in the judge's finding that the Appellant had not shown present dependence on the Sponsor.

29. It was accepted that, in order to meet the requirements of regulation 8(2) of the Immigration (European Economic Area) Regulations 2006, the Appellant had to show prior dependency on the Sponsor, together with present dependency, or present membership of his household. Even had the judge considered all of the evidence before him, it was not enough to establish this. Any errors made in the consideration of the evidence, or in misstating what the Appellant had to show, are not material.

Notice of Decision

30. The decision of the First-tier Tribunal-tier Tribunal does not involve the making of a material error of law, and we do not set it aside.

31. The decision of the First-tier Tribunal stands.

Signed Date 27 September 2016

Deputy Upper Tribunal Judge Chamberlain