Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA359872014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3rd June 2016
On 15th June 2016

Before

upper tribunal DEPUTY judge ROBERTS

Between

The SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

SYED BASIT HASAN
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant: Mr K Norton, Senior Presenting Officer
For the Respondent: No representation

DECISION AND REASONS

1. The Secretary of State appeals with permission against the decision of the First-tier Tribunal (Judge Herbert OBE) which in a decision promulgated on 11th November 2015 allowed Mr Syed Hasan's appeal against the Secretary of State's decision to refuse to issue a residence card to him as the extended family member of his sister (the Sponsor) an EEA national exercising treaty rights in the United Kingdom.
2. In this decision I shall refer to the Secretary of State as "the Respondent" and to Mr Hasan as "the Appellant" which reflects their respective positions before the FtT. The issue before the FtT was one of dependency under the Regulation 8(2) of the 2006 EEA Regulations.
3. The Appellant is a citizen of Pakistan. The sponsor is a citizen of Sweden. She gained Swedish citizenship around 2010. She was married to a Swedish national but that marriage ended in 2013 and she and her husband are now divorced. The Appellant claims that his sister has been supporting him since she became a Swedish national and that he shared the same household with her when she visited Pakistan on leave from Sweden.
4. The sponsor entered the UK sometime in August 2013 and commenced employment here. At the time of her entry she was not divorced from her husband, although they had separated from each other. The Appellant entered the UK in December 2013,a few months after his sister, on a visit visa valid until February 2016. In June 2014 he applied for the Residence card.
5. In addition to his claim that his sister has been supporting him since she acquired her Swedish nationality, he says he relies upon her for his essential needs in the United Kingdom. This is a continuation of the reliance he had upon his sister, whilst he was in Pakistan. It does appear (from the papers) that the Appellant is a married man with a child.
6. The FtT allowed the Appellant's appeal in the following terms. At [41] the judge said this:
"The Appellant's Sponsor left Pakistan for the United Kingdom in August 2013 and therefore immediately prior to her leaving Pakistan the Appellant was in residence with her. When he arrived in the United Kingdom in December 2013 that residence and dependency has continued to this date."
At [42] the judge said this:
"I am satisfied that there is overwhelming documentary evidence that he has continued to be reliant upon her for his essential needs in the United Kingdom and was reliant upon her consistently whilst in Pakistan.
[43] I am also satisfied that they formed part of the same household both in Pakistan and that he continues to do so in the United Kingdom."
The judge then concluded his decision with " a notice of decision" saying,
"I therefore allow this appeal under Regulation 8(2) of the Immigration (EEA) Regulations 2006 for the reasons set out above."
The Respondent sought permission to appeal on the basis that the judge's decision was flawed, because of inadequate reasoning and secondly because of a failure to consider Regulation 17(4) of the EEA Regulations 2006 when purporting to "allow" the appeal in the terms he did.
7. Permission to appeal was granted by FtT Judge Ford in the following terms:
"1. The Respondent seeks permission to appeal in time, against a decision of First-tier Tribunal (Judge Herbert OBE) dated 11 November 2015 whereby it allowed the Appellant's appeal against the Secretary of State's decision to refuse his application for a Residence card as the dependent of an EEA national (his sister).
2. It is argued that Judge Herbert erred in finding that the Appellant shared a household with his sister in the UK because they entered into a joint tenancy shortly after he arrived in the country. This is not arguable. Because this is not arguable, it is immaterial whether Judge Herbert may have erred in finding that the Appellant and his sister shared a household in Pakistan because they shared the ground floor of the former family home when she visited Pakistan for between 6 to 8 weeks each year.
3. It is arguable that Judge Herbert may have made a material error of law in relation to dependency. It is arguable that it is not sufficiently clear that he was satisfied that the Appellant was dependent on his sister for his essential needs."
8. Thus the matter comes before me to decide initially whether the decision of the FtT involved the making of an error of law such that it needs to be set aside.
UT Hearing/Error of Law Hearing
9. I heard submissions from Mr Norton on behalf of the Respondent. The Appellant attended in person with his sister (the Sponsor). Mr Norton kept briefly to the lines of the grounds seeking permission and identified that there are two strands to the Secretary of State's application:
In line with the grant of permission, the FtT erred materially in that the judge's reasoning of dependency (which is the core issue of this appeal) is lacking and therefore renders the whole decision defective.
If I were not persuaded by that failure, then the judge has materially erred his conclusion when he has purported "to allow" this appeal under Regulation 8(2) of the EEA Regs 2006. The judge is not entitled to do that because he fails to acknowledge Regulation 17(4) of the Regulations, whereby the Secretary of State has a discretion on whether or not to issue a Residence card. The judge has failed to consider the case law of Ihemedu (OFMs - meaning) Nigeria [2011] UKUT 00340.
Mr Norton submitted that when the two grounds were considered together, this rendered the whole decision defective. It should be set aside and the decision remade.
10. I heard from the Appellant who attended unrepresented. I explained the procedure to both him and his sister. The Appellant said that he wanted to rely upon what was before the First-tier Tribunal and that the First-tier Tribunal's decision should stand. He emphasised that he relied upon his sister for his support.
Error of Law
11. I find force in Mr Norton's submissions. Taking the second point made by Mr Norton first, it is incontrovertible that the judge has erred in purporting to allow this appeal outright as he did under Regulation 8(2) of the EEA Regulations 2006. The Secretary of State retains a discretion under Regulation 17(4) on whether in all the circumstances it is appropriate to issue a residence card. This involves her in a fact-finding exercise. The most that the FtT could do, based on its fact finding, is to find that the decision of the Secretary of State in refusing the Residence card is not in accordance with the law.
12. Therefore so far as that matter is concerned, I find the judge has fallen into error.
13. So far as the issue of dependency is concerned, I find that the judge erred in that he has given insufficient reason to show that he has engaged with the inconsistencies identified in the Respondent's decision letter. Nor has he given proper reasons why he accepted the Appellant as credible in relation to the core issues set out in the Appellant's claim in the light of those inconsistencies.
14. For example at [37] the FtT does not fully address the issue of the Appellant's previous Visa Application Form apparently failing to make any reference to the Sponsor providing some of his sources of income.
15. Equally at [42] the FtT refers to being satisfied that there is overwhelming documentary evidence that the Appellant continues to be reliant upon the Sponsor for support and essential needs. It is not clear from such a broad statement what it is the judge is referring to in terms of "overwhelming documentary evidence", since none has been specified.
16. I am aware that the judge heard the Appellant and his Sponsor give evidence and it was for him to assess credibility based on that evidence. However where there are inconsistencies in that evidence based on what the Appellant has said at various times and which are highlighted by the Respondent, it was incumbent on the judge to make clear findings why facts were found to be credible notwithstanding those inconsistencies.
17. This I find the judge has failed to do and this failure renders the decision unsustainable. I am satisfied therefore that the decision contains material error of law and I hereby set it aside on the issue of dependency as well as the Regulation 17(4) issue.
18. Mr Norton urged that if I find material error the appropriate course would be for the appeal to be remitted to the FtT for a rehearing of the Appellant's claim. The Appellant when asked, repeated his earlier claim and said that the decision of the FtT should stand.
19. I agree with Mr Norton that a rehearing is the appropriate course in this matter. I direct a full rehearing in the First-tier Tribunal with no findings of fact in the original decision preserved.
Notice of Decision

The FtT's decision involved the making of an error on a point of law. I set aside the decision and remit this matter to the FtT (not Judge Herbert OBE) for a full rehearing with no findings of fact preserved.

No anonymity direction is made.

Signed C E Roberts Date 14 June 2016

Upper Tribunal Deputy Judge Roberts