Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20257/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 8 April 2013
On 21 June 2013

Before

UPPER TRIBUNAL JUDGE STOREY

Between

Miss Helen Oluwashi Adeshina

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr N Aghayere, Counsel of Louis Ssekkono Solicitors
For the Respondent: Mr G Saunders, Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a citizen of Nigeria who entered the UK on 20 August 2011 as a student. On 3 May 2012 she applied for an EEA residence card on the basis that she is the sister-in-law of a Dutch national, Ms Job. On 12 September 2012 the respondent refused this application. She appealed. On 21 November 2012 First-tier Tribunal (FtT) Judge Ford dismissed her appeal.

2. The judge found and it is not in dispute that the appellant had been able to show that since arrival in the UK she has been a member of the household of Ms Job.

3. However the judge did not consider the appellant had established that in the country from which she came, Nigeria, she had been financially dependent on Ms Job. It was accepted by the appellant that she had never lived in the household of Ms Job in Nigeria.

4. The grounds contend that at paragraph 22 the judge wrongly found that because she still had valid leave as a student “it is not necessary for her to have a residence card”. I agree that this comment by the judge was ill-founded but it had no material bearing in the decision under appeal.

5. The other ground relied on was that the judge had failed to apply the correct legal test of dependency within the meaning of Directive 2004/EC/38 and the implementing legislation, regulation 8 of the Immigration (European Economic Area) Regulations 2006 in particular. Albeit briefly stated, this ground is well-made. It is manifest from a reading of the judge’s decision that he applied a “wholly or mainly dependent” test rather than one based on essential needs. That was a plain error of law and, as I cannot exclude that the judge may have assessed the evidence of prior dependency differently had he applied the correct test, I consider that his decision must be set aside.

6. I have all the evidence available on which to re-make the decision and indeed both parties urged that I do so. Applying the guidance set out in reported decisions of the Tribunal, Moneke (EEA – OFMs) Nigeria [2011] UKUT 00341 (IAC) in particular, the burden rests on the appellant to show that prior to travelling to the UK from Nigeria her essential needs were met by Ms Job. I do not consider she has discharged this burden for a number of reasons.

7. First, insofar as there is evidence of Ms Job’s income and financial circumstances in the years immediately preceding her departure from Nigeria it points to her having had very limited means, making it exceedingly unlikely that she was able to support anybody else.

8. Second, the documentary evidence of financial support was limited: in 2009 there being only two remittances statements (totalling about £700); in 2010 also, only two (totalling about £450); and in 2011 only three (totalling about £350).

9. Third insofar as there exists evidence of money being sent to the appellant and her family in Nigeria save for two transfers on 6 and 7 June 2011, it relates to monies sent by Ms Job’s husband Joseph, not by Ms Job. As the Court of Appeal has recently confirmed in Ronivon Soares [2013] EWCA Civ 575 dependency under regulation 8 must be shown to be dependency on the EEA national, not their spouse.

10. Fourth, insofar as there exists evidence to show that Ms Job sent money to Nigeria, although all the money transfers produced were made payable to the appellant, the appellant’s own evidence was that Joseph had sent financial support to her and her parents. Further the three witnesses had not given consistent evidence as to who this money was for, the appellant saying the monies sent by Joseph were for her and her grandmother; Joseph saying it was for the support of the whole household (his grandmother, the appellant and his step-sister); Ms Job saying the money sent by her and Joseph was for the appellant. These statements were also difficult to square with the evidence that the appellant had had no contact whatsoever with her parents after they separated when she was a young child and left her in the care of her grandmother.

11. Fifth, despite the appellant and Ms Job and her husband saying that the latter two had paid the appellant’s course fees for her studies in Nigeria, no evidence had been produced to show this.

12. Sixth, on the appellant’s own evidence once she had finished her studies in Nigeria she had worked in 2010/2011 as a teacher as part of her national service receiving a monthly stipend of 9,000 naira, yet there was no documentary evidence to explain either whether during her national service she received free accommodation or whether that amount sufficed for her own essential needs.

13. Seventh, although Joseph and Ms Job confirmed that they had sponsored the appellant to come to the UK, they were unable to produce any documentary evidence of the details of that application, which may have clarified what their financial circumstances were said to be then).

14. Considering all the evidence in the round, I am entirely satisfied that the appellant has failed to show she was dependent on Ms Job in Nigeria prior to coming to the UK.

15. For the above reasons:

The FtT judge erred in law and his decision is set aside. The decision I re-make is to dismiss the appellant’s appeal.

Signed Date

Upper Tribunal Judge Storey