Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13646/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 October 2016
On 4 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

mr farrukh javed
(ANONYMITY DIRECTION NOT MADE)
Respondent/Claimant

Representation:
For the Appellant: Ms K. Pal, Specialist Appeals Team
For the Respondent: Miss H. Dogra, Counsel instructed by Ilford Law Chambers

DECISION AND REASONS
1. The Secretary of State appeals to the Upper Tribunal from the decision of the First-tier Tribunal (Judge Cameron sitting at Taylor House on 9 March 2016) allowing the claimant's appeal against the decision of the Secretary of State to refuse to issue him with a residence card under the Immigration (European Economic Area) Regulations 2006 as the extended family member ("EFM") of an EEA national exercising treaty rights in the UK. The First-tier Tribunal did not make an anonymity direction, and I do not consider the appellant requires anonymity for these proceedings in the Upper Tribunal.
The Reasons for Granting Permission to Appeal
2. On 16 August 2016 Designated Judge Garratt gave his reasons for granting permission to appeal. In finding that the claimant had been dependent on his brother while living in Pakistan on account of his brother paying for his school fees it was arguable that the judge had erred in law in not applying the "essential needs" test.
Discussion
3. In Ihemedu (OFMs - in meaning) Nigeria [2011] UKUT 00340 (IAC) Senior Immigration Judge Storey, as he then was, gave the following guidance which is quoted at sub-paragraph 2 of the head note:
An important consideration in the context of an OFM/extended family member case is that if a claimant had come to the UK without applying for a family permit from abroad ?, this will mean that the UK authorities have been prevented from conducting the extensive examination of the individual's personal circumstances envisaged by Reg 12(3) and in the course of such an examination check the documentation submitted. If an applicant chooses not to apply from abroad for a family permit under Reg 12 of the 2006 Regulations, thereby denying the UK authorities an opportunity to check documentation in the country concerned, he cannot expect any relaxation in the burden of proof that applies to him when seeking to establish an EEA right" (my emphasis).
4. In the same case, Judge Storey noted at paragraph [4] that Article 10(2)(e) of the Citizens Directive stipulated that in cases falling under Article 3(2)(a), which deals with OFMs, applicants must produce "a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the union citizen ?".
5. The same observation was made in Moneke (EEA - OFMs) Nigeria [2011] UKUT 00341 (IAC) at paragraph [42]:
We note further that Article 10(2)(e) of the Citizens Directive contemplates documentary evidence. Whether dependency could ever be proved by oral testimony alone is not something that we have to decide in this case, but Article 10(2)(e) does suggest that the responsibility is on the applicant to satisfy the Secretary of State by cogent evidence that is in part documented (my emphasis) and can be tested as to whether the level of material support, its duration and its impact upon the applicant combined together meet the material definition of dependency.
6. In this case, the claimant entered the UK as a student under the Rules, not as an OFM aka EFM under the Regulations 2006. He did not present himself as being sponsored by his brother and sister-in-law, but as being self-sufficient in that he had sufficient funds in his bank account to meet the costs of his course and to maintain himself. Before Judge Cameron, there was no documentary evidence to show that monies had been directly remitted to him in Pakistan by his brother and sister-in-law, and there was no documentary evidence to show that the money which was remitted to his father had been spent on the claimant's school fees; or that the money in his bank account when applying for entry clearance as a student had been provided by his brother and sister-in-law.
7. In the event, Ms Pal did not seek to develop a case that Judge Cameron had erred in law in allowing the appeal on these facts; and Miss Dogra did not seek to develop the Rule 24 response opposing the appeal on the ground that the Judge had given adequate reasons for finding that the requirement of prior dependency was satisfied. Miss Dogra conceded that the claimant did not have a right of appeal against the decision to refuse to issue him with a residence card as an EFM, following Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC).
8. Accordingly, with the consent of the legal representatives, I find that a material error of law is made out on the ground that in retrospect the Tribunal had no jurisdiction to entertain the claimant's appeal.
9. So the decision must be set aside and the claimant's appeal must be dismissed for want of jurisdiction.
Notice of Decision
The decision of the First-tier Tribunal contained an error of law, and accordingly the decision is set aside and the following decision is substituted: the claimant's appeal is dismissed for want of jurisdiction.
I make no anonymity direction.

Signed Date 4 October 2016

Deputy Upper Tribunal Judge Monson