Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20217/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 August 2016
On 31 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MCCLURE

Between

MR Faheem Ahmed
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Hussain instructed by Syed Solicitors
For the Respondent: Ms Brocklesby-Weller, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant, Mr Faheem Ahmed, date of birth 7th February 1987 is a citizen of Pakistan. Having considered all the circumstances it is not necessary to make an anonymity direction.
2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Shergill promulgated on 19 February 2016, whereby the judge dismissed the Appellant's appeal against the decision of the Respondent to refuse him a residence card as a family or an extended family member of an EU national exercising treaty rights in the United Kingdom.
3. By a decision taken on 27 July 2016 First-tier Tribunal Judge Foudy granted permission to appeal to the Upper Tribunal. Thus the matter appeared before me to determine in the first instance whether or not there was an error in law in the original determination.
4. The Grounds of Appeal assert:
(a) That the judge determined the case on the basis that the appellant had not shown that he had been dependent on the sponsor whilst the appellant had been living in Pakistan. It is submitted in line with the case of Reyes (EEA Regs: dependency)[2013] UKUT 00314 the test was not one of passed dependency but dependency at the date of decision.
(b) That the judge failed to make any findings on the material issue, which was dependency at the date of decision.
(c) That the judge concentrated upon the past as is evident from the fact that he considered the support that the appellant got from his father and other sources prior to coming to the UK and based the decision on such and that such was a legally flawed approach.
(d) That the judge further found that money transfers and documents to support such produced by the appellant were not bona fide and he attached no weight to such. In accordance with the case of RP (Proof of forgery) Nigeria [2006] UKAIT 00086 it is submitted that a document given in good faith should be considered as genuine unless there is evidence to the contrary.
(e) If the late submission documents had prejudiced the respondent the respondent should have applied for an adjournment. If there were any issues with regard to the bona fides of the document such should have been raised during the course of the hearing.
Factual Background
5. The appellant was seeking a residence card on the basis of his relationship and dependency upon his uncle an EEA national exercising treaty rights in the UK.
6. The appellant first came to the United Kingdom on a student visa. The judge notes that that student visa had been the subject of an appeal before the Tribunal in 2007. On the basis of the evidence presented, including evidence from that previous appeal, the judge found that that application had been supported by evidence to show that the appellant would be supported by a benevolent cousin, who was willing to pay for his course fees, flights to the United Kingdom and other costs. At that stage there was no mention of any monies being provided by any other family member, specifically there was no mention of support from the EU sponsor.
7. The appellant's visa to study as a student came to an end. The appellant made various applications either for further leave or for a residence card, all of which were refused. Eventually by November 2013 the appellant was served with documentation as an over stayer as a precursor to his removal. Amongst the applications, which had been made, were at least two seeking entitlement to remain in the United Kingdom as a family member of an EU citizen, his uncle and present sponsor.
8. Indeed the last refusal of such an application appears to have been appealed. The appeal proceeded to a hearing but after the hearing had started, the appellant withdrew the appeal. Before the judge in the present proceedings the appellant claimed that he withdrew his application because the previous judge was being extremely rude and aggressive. Judge Shergill did not find that to be the case in the present proceedings.
9. The latest application by the appellant was to remain in the UK as a family member of his uncle, his EU sponsor. That application was refused and the appellant appealed against that refusal on the basis that the appellant was not a family or extended family member of an EEA citizen. It appears to be accepted that the appellant's uncle was an EEA citizen and that he was in the United Kingdom working and as such was a qualified person. The central issue was whether or not the appellant satisfied the requirements under the Directives and Regulations to be a family member or an extended family member.
10. The terms family member and extended family member are defined in regulations 7 and 8 of the 2006 Regulations.. There is a clear distinction between regulation 7 and regulation 8. The relevant parts of regulations 7 and 8 provide:-
Family member
7 (1) Subject to paragraph (2), for the purposes of these regulations the following person shall be treated as the family member of another person-
a) his spouse or his civil partner;
b) direct descendants of his, his spouse or his civil partner who are-
i) under 21; or
ii) dependents of his, his spouse or his civil partner,
c) dependent direct relatives in his ascending line or that of his spouse or his civil partner;
d) a person who is to be treated as the family member of that other person under paragraph (3)
?
(3) Subject to paragraph (4), a person who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as the family member of the relevant EEA national force as long as he continues to satisfy the conditions in regulation 8(2), (3), (4) or (5) in relation to that EEA national and the permit, certificate or card has not ceased to be valid or revoked.
?
Regulation 8
Extended family member
8 (1) In these regulations 'extended family member' means a person who is not a family member of an EEA national under regulation 7 (1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).
(2) A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and-
(a) the person is residing in a country other than the United Kingdom and is dependent upon the EEA national or is a member of his household;
(b) the person satisfied the condition in (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or
(c) the person satisfied the condition in paragraph (a) , has joined EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household.
11. The provision of the regulations mirrors the provisions of Council Directive 2004 /38 /EC (Citizens' Free Movement) Articles 2 and 3 and Recital 6.
12. The case of Bigia [2009] EWCA Civ 79 at paragraphs 4, 8 and 9 makes the point that family members under regulation 7 derive EU rights provided they are within specific categories of relationship and in certain circumstances are presently dependent on the EU national. The appellant does not fall within the strict relationship requirements of regulation 7(1). Further the appellant has never been issued with a residence card and therefore he does not fall for consideration under Regulation 7(3). The term in the Regulation "has been issued with" is a necessary element for that provision.
13. Other Family Members/extended family members consistent with Article 2 and 3 of Directive 2004/83/EC and Regulation 8 have to prove either financial dependency upon the EU member or membership of the EU sponsor's household in a country outside and prior to coming to the United Kingdom and also either financial dependency upon the EU member or membership of the EU sponsor's household in the United Kingdom at present.
14. The appellant has sought to rely upon the case of Reyes and specifically paragraph 31. Counsel on behalf of the appellant appeared to be arguing that the appellant fell for consideration under Regulation 7(3) or Regulation 8(2)c). As the appellant has never had a residence card he does not qualify under Regulation 7(3).
15. In respect of Regulation 8 reading the regulations each element of Regulation 8 (2) requires the provisions of 8(2)(a) to be satisfied. Such is consistent with the Directive and the case law. It is clear that either financial dependency in the past in Pakistan or membership of the households previously in Pakistan are required elements in order to be considered as an Extended/Other Family Member. Whilst regulation 8(2)(a) is framed in the present tense, in considering regulation 8(2)(b) or (c) the clear intent and purpose is that (a) was satisfied in the past and the person has come to join the individual in the UK or is accompanying the person to the UK..
16. Therefore a finding that an applicant had not been financially dependent upon the EEA national or a member of the household prior to the applicant coming to the United Kingdom would be fatal to an application and an appeal.
17. That point is not only made in Bigia but also in Dauhoo (EEA -regulation -reg. 8.2.) [2012] UKUT 79, which the judge in the present appeal has considered and applied.
18. Accordingly there is no basis for challenging the decision on the ground that passed dependency was not a material consideration in establishing whether the appellant was an extended or other family member.
19. The second issue raised by the appellant's representative relates to the documents produced by the appellant at the hearing. In submissions counsel on behalf of the appellant was asserting that once the documents had been produced they should be accepted on their face as proof of the details contained therein unless the respondent produced evidence to bring their reliability into question. In making that submission reliance was placed upon the case of SM & Qadir 2016 UKUT 229,which sets out-
"60. This contention was raised for the first time in Mr Dunlop's final written submission. This implies no criticism of him. However, as a result, we have not received detailed argument on the issue. We are mindful that as this is neither an asylum nor a human rights case there are strong indications that the Tanveer Ahmed principles have no application. Second, we consider it highly unlikely that the Tanveer Ahmed principles displace or alter the legal rules enunciated unambiguously in Shen, Muhandirange and their precursors, which include MZ (Pakistan) v Secretary of State for the Home Department [2009] EWCA Civ 919, at [25]. The contention that a claimant, or appellant, bears the legal burden of demonstrating that a document upon which he relies is reliable in a litigation context where the legal burden rests upon the Secretary of State gives rise to an evident incongruity. There is a persuasive argument that the Tanveer Ahmed principles are, as the decision itself states unequivocally, confined to asylum and human rights claims. Indeed, there may also be scope for the argument that these principles may have no enduring application in such cases. However, this issue does not fall to be determined in these appeals and we note that it did not arise in the recent Court of Appeal decision in MA (Bangladesh) v SSHD [2016] EWCA Civ 175."
20. Reliance upon the paragraph indicated does not give the context to the issue under consideration. It is evident from the rest of the judgement that what was being considered was the positive proof of dishonesty on the part of an appellant, that is the positive production of the document knowing that it was false and producing it with dishonest intent. They can be little doubt that where the Secretary of State makes positive assertions of dishonesty or forgery the burden is on the Secretary of State to prove such. Whilst the paragraphs cited seems to question the approach advocated in the case of Tanveer Ahmed, that approach was given support by the Court of Appeal in the cases of Mungu 2003 EWCA Civ 360 and Pants v SSHD 2003 EWCA Civ 1964.
21. The issues in producing a document are whether the document should be accepted on its face, whether the person producing such has to prove that it is reliable or whether the judge in looking at all the evidence can find that the document is not reliable. The case of Zarandy v SSHD [2002] EWCA Civ 153 considers the point raised by counsel for the appellant.
"14. [Counsel] who appeared on behalf of the appellant, made submissions which at one point seemed to suggest that it was his contention that if any piece of paper was produced by a claimant it must be taken as evidencing what was asserted in that piece of paper unless either there was evidence from elsewhere that the paper was not what it appeared to be or alternatively had been improperly procured or there was evidence appearing from the face of the document that it was unreliable I do not accept that proposition. The adjudicator must look at all of the material in the round and see whether he is persuaded of the claim.'
?
18. That directs the tribunal's attention to the proper issue. The question is whether the document can be relied on in support of the appellant's claim in the light of all the evidence."
22. In the present proceedings the judge was considering whether or not documents produced, albeit produced for the hearing, were reliable in light of all the circumstances and the evidence. The judge considered the appellant's documents and came to the conclusion that the documents were not reliable. In the circumstances that was a finding of fact that the judge was entitled to make on the evidence presented.
23. The judge has very carefully examined all of the circumstances of the appellant's immigration history. The judge has considered the fact that in the past the appellant had never referred to any support or assistance from his EU national uncle, that the appellant had never been able to produce supporting documents in the previous applications including a hearing before the Tribunal and that the appellant's father was working and generally supporting the family in Pakistan. The judge had carefully looked at all the evidence and having assessed all the evidence came to the conclusions that no weight could be given to the documents in the circumstances. In the light of that the judge was entitled to come to the conclusion reached.
24. Further and in any event in dealing with what the money allegedly sent was used for the judge has pointed out that the monies were used for luxuries rather than essentials. In considering that issue the judge has pointed out the case of Lim (EEA -dependency) [2013] UKUT 00437, which makes the point. The judge was entitled to conclude that for the purposes of the regulations the appellant had not been dependent upon his uncle in Pakistan and even if monies had been sent, which the judge was not satisfied was the case, the monies were used for luxury items and as such did not make the appellant dependent upon the uncle.
25. The judge has given valid reasons for coming to the conclusion that the appellant does not qualify under Regulation 7 as a family member or 8 as an extended family or other family member.
Notice of Decision
26. I dismiss the appeal by the Appellant and uphold the decision on all grounds.
27. No anonymity direction is made.
28. As the appeal has been dismissed I make no fee award.

Signed Date 31 August 2016

Deputy Upper Tribunal Judge McClure