Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27200/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 September 2016
On 17 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

ARULAMMAH THEVARAJAH
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss J Heybroek, Counsel, instructed Kothala & Co (Harrow Road)

For the Respondent: Mr S Kotas, Senior Presenting Officer

DECISION AND REASONS

1. The Appellant, a national of Sri Lanka, appeals against the Respondent's decision to refuse a residence card, dated 15 February 2015, with reference to Regulation 7(1)(c) of the Immigration (EEA) Regulations 2006 ("the 2006 Regulations"). The basis of refusal was that the Secretary of State concluded the Appellant had failed to demonstrate that she was genuinely dependent upon an EEA family member.

2. Her appeal against that decision came before First-tier Tribunal Judge Hetherington ("the judge") who dismissed the appeal under the EEA Regulations on 22 February 2016. The grounds of challenge are essentially that the judge had taken an incorrect approach to the extent of financial circumstances and the extent to which the Sponsor in fact met by both money and accommodation for the Appellant's essential needs. The point was taken that the permission granted by Upper Tribunal Judge Deans, sitting as a Judge of the First-tier Tribunal, on 3 August 2016 makes reference to previous dependency before the Appellant entered the United Kingdom but it is common ground that that was not a requirement for she is, if at all, eligible as a family member under Regulation 7.

3. The position is that the grounds of appeal do not challenge in any particular the adverse credibility findings which the judge made. He rejected the credibility of the Appellant, her daughter and the Sponsor, taking the view that they were merely saying in evidence what they thought would best suit their case and as he put it, on a balance of probability "... I did not find either the evidence of the Appellant, her daughter and the sponsor to be persuasive." He then concluded that he found the evidence in support of the Appellant's application lacked credibility. Accordingly the appeal failed.

4. Mr Kotas argues that the assessment of credibility was critical to an assessment as to whether there was present dependency by the Appellant upon an EEA national bearing in mind of course that dependency can come from a variety of sources. He says, seemingly correctly, that the judge made no direct finding on whether or not the Appellant was resident with her daughter, a co-Sponsor with the son-in-law. In that respect it would appear he did not make an express finding on that issue but rather he concentrated upon the evidence in relation to other aspects of dependency and reached the view, as I have set out above, that she did not. He evidently received evidence from which the inference could be drawn that the Appellant felt at home with the Sponsors and that certainly the Sponsor, Mr Rock, was not essentially disbelieved.

5. It seems to me therefore that as a fact the absence of an express finding of cohabitation in that sense with these co-Sponsors makes really no difference. The key to it was not so much where she is living there but the extent to which she was truly financially dependent. In this respect the judge was entitled to take the view for good or ill so far as I am concerned, that he did and rejected that the Sponsor(s) were meeting the essential needs of the Appellant even if the Appellant was being accommodated, which is obviously part of those essential needs.

6. In the circumstances whilst I might not have reached the same decision, it seems to me that those points which are being appealed are to a degree confounded by the adverse findings on credibility. The obvious course to resolve this is to better present the evidence which is material to the issue. I am not suggesting for one moment that Miss Bhachu, who represented the Appellant before the judge, made any error in terms of her practice and presentation of the case but if there were shortcomings it appears those were sufficient for the judge to form the view that the appeal on the evidence before him should fail.

7. No anonymity order was made and none is sought today.

Notice of Decision
8. For these reasons the appeal fails and the Original Tribunal's decision stands.

Signed Date 12 October2016

Deputy Upper Tribunal Judge Davey