Tribunal decisions

The decision

IAC-AH-CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/31132/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 March 2017
On 28 March 2017

Before

DUPTY UPPER TRIBUNAL JUDGE MONSON

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR asif Ali siddiqui
(anonymity direction NOT MADE)
Respondent/Claimant

Representation:
For the Appellant: Mr E Tufan, Senior Home Office Presenting Officer
For the Claimant: In person

DECISION AND REASONS
1. The Secretary of State appeals from the decision of the First-tier Tribunal allowing the claimant’s appeal against the decision of the Secretary of State to refuse to issue him with a residence card as confirmation of his right to reside in the United Kingdom as an extended family member (“EFM” or “OFM”) of an EEA national exercising Treaty rights here. The First-tier Tribunal did not make an anonymity direction in favour of the claimant, and I do not consider that the claimant requires anonymity for these proceedings in the Upper Tribunal.
Relevant Background Facts
2. The claimant is a national of Pakistan, whose date of birth is 7 June 1979. His was last admitted to the UK on 13 September 2007 as a student. He applied for further leave to remain as a student, and leave to remain was granted until 24 August 2013. On 26 July 2013 he applied for leave to remain as an entrepreneur migrant. This application was refused on 2 April 2014. On 12 March 2015 the claimant applied for a residence card as the extended family member of an EEA national.
3. In his application form, he said that his sponsor was his brother-in-law. He was a Dutch national who was married to his sister. His paternal uncle had sponsored him for his initial student visa to the UK, together with his brother-in-law. His paternal uncle had retired, so he was unable to support him. Before he came to the UK, his brother-in-law had sponsored him at a rate of 300 Euros every 6 months. He had entered the UK on 13 September 2007, and his sponsor had entered the UK on 1 August 2008. They had not come to the UK at the same time, as his sister and brother-in-law had their family in The Netherlands, as well as their business, and they were winding up everything before coming to the UK. He was a member of their household in the UK, and he was also financially dependent upon them. He received £50 a week.
4. He was also related by blood to the sponsor. The sponsor’s father was his great uncle, being the brother of his (the claimant’s) grandfather. The sponsor had married his sister on 15 March 1996.
5. In a declaration made on 20 February 2015, Asad Siddiqui said that he and his wife (the claimant’s sister) had been financially supporting the claimant since the unexpected death of the claimant’s father on 28 January 1995. He had provided money on several occasions throughout a number of years prior to his arrival in the UK. This was done by sending money through family friends or trusted people who went to Pakistan. He could also confirm that they had been supporting him throughout his time in the UK.
6. On 7 September 2015, the Secretary of State gave her reasons for refusing the application for a residence card made on 12 March 2015. Although he had supplied 6 money transfer receipts as evidence that his EEA sponsor was supporting him before he entered the UK, these were very infrequent, and they ceased before he entered the UK as a student. Further to this, the statements did not show any bank details from whom the money was being sent, or into which bank account in Pakistan the money was being received. The Department would need to see further evidence of fund transfers from the EEA sponsor to himself. He had not provided sufficient evidence of his dependency or cohabitation with his EEA sponsor prior to entering the UK.
7. He entered the UK on 13 September 2007 as a student. He had sufficient funds to keep himself in the UK. He did not have a sponsor when he made his application for a visa to enter the UK. If he was dependent upon his EEA sponsor prior to entering the UK, the Department would have expected him to have been sponsoring his application to enter the UK as a student. The Department would also have expected him to have entered the UK with the correct entry clearance as a family member of an EEA national.
8. He had also failed to establish that, since entering the UK, he had continued to be dependent upon the sponsor or that he had been a member of his household. Since entering the UK, he had applied for leave to remain as a student twice. The Department would have expected him to apply for residence as an extended family member, rather than as a student. He had only supplied evidence of being dependent upon his EEA sponsor since February 2014. The Department would have expected to see evidence of him being dependent upon his EEA sponsor from 2007 to date, in the form of utility bills, bank statements and various other documents.
9. So, it had been decided to refuse to issue the confirmation which he sought, with reference to Regulations 8(2)(a) and (c) of the Immigration (EEA) Regulations 2006.
10. The claimant had also failed to provide sufficient evidence to demonstrate that his EEA sponsor was currently economically active in the UK as a self-employed person.
The Hearing Before, and the Decision of, the First-tier Tribunal
11. The claimant’s appeal came before Judge G. Black, sitting at Taylor House on 13 September 2016. The claimant was represented by Counsel, but there was no representation on behalf of the Secretary of State. The Judge received oral evidence from the claimant, and other unspecified witnesses. Her subsequent findings of fact and reasons were very brief. At paragraph [5], she found that the claimant and his witnesses had given credible and reliable evidence. There was reliable documentary and oral evidence that the sponsor worked on a self-employed basis as a cab driver with Uber. The Judge continued in paragraph [6]:
As to dependency I find that the [claimant] has been dependent on the sponsor since the time he lived in Pakistan. The sponsor’s father provided financial support for the [claimant] and his family. The two families are members of a joint household for which the sponsor’s father was financially responsible, of which the sponsor in turn took over that responsibility after his father’s death. I am satisfied that the sponsor has had financial responsibility for the [claimant] and his family since the 1990s. I find that the [claimant] came to the UK in 2007 and the sponsor joined him in 2008. They lived at the same address, where they are currently living.
12. At paragraph [7], she said that she was satisfied that the claimant was dependent upon the sponsor in Pakistan from 1998 to 2007 for his maintenance, living and accommodation expenses, and that this dependency had continued in the UK. The sponsor had paid for the claimant’s tuition fees and living expenses during the period in which he had been studying in the UK. He also continued to pay for the claimant’s family members in Pakistan. The Judge allowed the appeal outright.
The Grounds of Appeal to the Upper Tribunal
13. A member of the Specialist Appeals Team settled an application for permission to appeal to the Upper Tribunal. Ground 1 was that the Tribunal had no jurisdiction to hear the claimant’s appeal following Sala (EFMs: rights of appeal) [2016] UKUT 00411 (IAC). Ground 2 was that the Judge had erred in law by failing to provide adequate reasons as to why the appeal was allowed. The Judge had failed to refer to a single document which enabled the Secretary of State to understand why the appeal had been allowed, nor had the Judge made any findings as to whether or not the financial assistance provided by the EEA national was such as to meet the claimant’s essential needs: see Moneke (EEA - OFMS) Nigeria [2011] UKUT 341 (IAC). This was of particular relevance when it appeared to be claimed that the EEA national sponsor was solely and financially responsible for two entire families. The fact that no Presenting Officer was available to attend the hearing did not absolve the Tribunal from its duty to give anxious scrutiny to the claim.
The Grant of Permission to Appeal
14. On 20 January 2017, First-tier Tribunal Judge Brunnen granted permission to appeal on Ground 1, but not on Ground 2. His reasoning on Ground 2 was that, although concisely stated, the Judge made clear why she had made her finding, and on what evidence it was based.
The Hearing in the Upper Tribunal
15. Shortly before the scheduled hearing of the appeal, the claimant’s former solicitors notified the Upper Tribunal that their instructions had been withdrawn. The claimant attended in person, and handed over a skeleton argument. He submitted that he should be given the benefit of his appeal being heard before the Sala judgment. But if the Upper Tribunal declared that the First-tier Tribunal had no power to hear his appeal, then it must do so without commenting on the merits of the decision made by the First-tier Tribunal.
16. In answer to questions for clarification purposes from me, the claimant said that his sponsor was 5 years older than him. He left Pakistan when he (the claimant) had only been 4 or 5 years old. He had gone to live in The Netherlands. The sponsor had not sponsored him directly. He had sent money to his maternal uncle in Pakistan. He also drew my attention to some of the documentary evidence which was relied upon for the First-tier Tribunal as evidence of dependency.
17. On behalf of the Secretary of State, Mr Tufan principally relied on Ground 1. However, he also submitted that Ground 2 was made out.
Discussion
18. The claimant was encouraged to believe that he had a statutory right of appeal against the decision to refuse to issue him with a residence card as the extended family member of an EEA national exercising Treaty rights here. So there is some force in the argument that he should not be deprived of the benefit of a decision in his favour following an appeal hearing which the Secretary of State had consented to. But this consideration brings into focus Ground 2 of the appeal. Although the Secretary of State was not granted permission to argue Ground 2, I am not bound by that refusal of permission. Having reviewed the reasons for refusal and the evidence deployed in support of the application, I find that Ground 2 is made out for the reasons set out below.
19. In Ihemedu (OFMs – 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).
20. 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 …”.
21. 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.
22. The Judge’s decision in this appeal displays no recognition of the evidential hurdle which the claimant was required to surmount with regard to establishing, on the balance of probabilities, prior dependency on his EEA national sponsor. The Judge has also not addressed the question of when the EEA sponsor acquired Dutch nationality. For any support which he gave to the claimant prior to becoming an EEA national is incapable of constituting prior dependency upon an EEA national.
23. There is also a failure to engage with the gaps in the documentary record identified by the Secretary of State in the refusal letter. Regrettably, the Judge did not have the assistance of a Presenting Officer, but nonetheless she ought to have scrutinised the documentary evidence, as required by Moneke. Such scrutiny would have led to her identifying some obvious inconsistencies and factual conflicts which needed to be resolved.
24. Firstly, in the application it was represented that the sponsor had assumed the role of financial provider following the death of the claimant’s father, whereas apparently the case put forward at the hearing was that the sponsor had replaced his own father in this role.
25. Secondly it was represented in the application that the claimant’s uncle had sponsored him for his initial application for entry clearance as a student, whereas at the hearing his case was apparently that his brother-in-law paid for everything, including his initial student sponsorship.
26. Thirdly, in a letter dated 16 February 2015 at page 31 of the claimant’s bundle, the principal of the boys’ high school which the claimant had attended for 10 years between 1988 and 1997 certified that his cousin had been financially responsible for his school fees and other related expenses, whereas the Judge found that Mr Asad Siddiqui (who only became an adult in 1992) did not begin funding the claimant until 1998.
27. Fourthly, in the tax year ending 30 April 2014, the sponsor’s net earnings from self-employment were only £6,195 (page 74 of the claimant’s bundle) which calls into question the credibility of the claim that he was able to support the claimant in the UK as well as supporting the claimant’s family in Pakistan and the rest of his family in the UK.
28. For the above reasons, the Judge has not given adequate reasons for finding that the claimant potentially qualifies for the issue of a residence card, subject to the exercise of discretion by the Secretary of State under Regulation 17(4).
29. The claimant does not have a right of appeal against the decision to refuse to issue him with a residence card in the capacity of an extended family member of an EEA national exercising Treaty rights here, following Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC).
30. The ratio decidendi of Sala is that a decision taken by the Secretary of State “in the exercise of her discretion” not to issue an EFM with a residence card is not an appealable decision under the EEA Regulations 2006.
31. The Tribunal in Sala held that such a decision is not an appealable decision as it does not meet the definition of an EEA decision in Regulation 2(1) which is that the decision “concerns” a person’s entitlement to be issued with a residence card, whereas deciding that a person is not an EFM is not a decision which concerns his entitlement to be issued with a residence card.
32. It was not argued by way of appeal that Sala was wrongly decided. So, Ground 1 is also made out, and the inevitable consequence of Sala is that the decision under appeal must be remade in favour of the Secretary of State.

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 against the decision of the Secretary of State to refuse to issue him with a residence card is dismissed for want of jurisdiction.
I make no anonymity direction.

Signed Date 24 March 2017

Judge Monson

Deputy Upper Tribunal Judge

TO THE RESPONDENT
FEE AWARD
As I have dismissed this appeal, there can be no fee award.

Signed Date 24 March 2017

Judge Monson

Deputy Upper Tribunal Judge