Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/41828/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 September 2016
On 03 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

muhammad fazlul haque
(anonymity directioN not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr B Danial of Counsel instructed by Law Dale Solicitors
For the Respondent: Mr S Kandola, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal from the decision of First-tier Tribunal Judge Petherbridge promulgated on 7 January 2016. The appellant is a citizen of Bangladesh born on 26 December 1981. He appeals against the respondent's refusal to issue him with a residence card. He claims that he was entitled to such a residence card pursuant to the provisions of Regulation 8(2) of the Immigration (European Economic Area) Regulations 2006. When the matter was before the First-tier Tribunal evidence was heard and findings of fact were made. The judge accepted that the sponsor is an uncle of the appellant and that he became a citizen of Italy (and hence an EEA national) in June 2013. The appellant came to the United Kingdom from Bangladesh in 2007. The Sponsor moved to the United Kingdom from Italy in 2013 and at some stage came to live in the same household as the appellant.

2. Permission to appeal was granted by Upper Tribunal Judge Clive Lane on 9 August 2016. He stated as follows:

"It is arguable that the First-tier Tribunal conflated membership of a household with dependency; Regulation 8(2) arguably provides that an individual may establish that he/she is an 'extended family member' by showing membership of a household or dependency (see Dauhoo [2012] UKUT 79 (IAC)."

3. A skeleton argument was lodged in support of this appeal running to some nine paragraphs. Mr Danial who represents the appellant this morning did not settle the skeleton argument but sought to rely on it. I had some difficulty in persuading Mr Danial to focus on the text of First-tier Tribunal decision. He did not have a copy of the decision with him and I provided him with mine. He had some difficulty in demonstrating which paragraphs, if any, were flawed and where an error of law was to be found.

4. During his submissions to me he conceded that regulation 8(2)(a) self-evidently did not apply in this case inasmuch as it is styled in the present tense and is referring to somebody residing in a country other than the United Kingdom. He accepted that at the material time with which the First-tier Tribunal Judge was concerned both the appellant and the sponsor were residing in the United Kingdom. When afforded the opportunity of responding to the submissions made by Mr Kandola on behalf of the respondent, Mr Danial sought to depart from his earlier concession and to argue that regulation 8(2)(a) did in fact apply to this case. Justice requires that an appellant is not prejudiced by any error or misjudgment on the part of his legal representative.

5. Regulation 8(2) provides:

"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 in which the EEA national also resides and is dependent upon the EEA national or is a member of his household;

(b) the person satisfied the condition in paragraph (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 the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household." (emphasis added)

6. The First-tier Tribunal Judge dealt with the matter as follows:

"39. For the purposes of determining this appeal it is of the utmost importance that it is established when the Sponsor became an EEA national - I accept that he did so following the grant of Italian citizenship to him on 6 June 2013 - because it is only after that date that any dependency or the Appellant living in the same household of the Sponsor can be considered for the purposes of seeing whether the requirements of the Regulations have been satisfied.

40. As Mr Raja submitted, even if the Sponsor had been fully maintaining the Appellant whilst he was in Italy and the Appellant was in Bangladesh Regulation 8(2) could only be satisfied once the Sponsor had become an EEA national.

41. Even had that not been the case, I found the Appellant's evidence as to dependency, that has to be established to satisfy the Regulations, that he asserts he received from the Sponsor whilst in Bangladesh to be such as not being sufficient to satisfy the Regulations.

42. It seemed to me that if the Appellant was reliant upon the household of the Sponsor whilst in Bangladesh that evidence of property ownership would have been provided such as being provided with regard to the establishment of the relationship. There was no evidence whatsoever of any money ever having been sent by the Sponsor to the Appellant in Bangladesh. It was said that it had been sent to further the Appellant's education and yet the Sponsor was unaware of what qualification the Appellant had achieved.

43. The fact is, though, that such financial help that the Appellant was said to have received from the Sponsor had to have existed before the Appellant came to the United Kingdom, which was in 2007, and at that time the Sponsor had to have been an EEA national. That clearly was not the case.

44. If I were wrong as to my finding that Regulation 8(2) could only be satisfied once the Sponsor had become an Italian citizen from June 2013 I consider the evidence as to dependency on the Sponsor since that date to be unsubstantiated."

The judge then gives details as to the lack of such substantiation.

7. The passage which I have cited up to the conclusion at paragraph 43 is sufficient to be dispositive of this appeal. By the time the Sponsor became an EEA national in 2013, the appellant had long since ceased to reside in "a country other than the United Kingdom". The provisions of regulation 8(2) are not engaged. I can find no fault in the First-tier Tribunal Judge's assessment as to when it was necessary for sponsorship or household considerations to be taken into account. Any matters which predated the sponsor becoming an EEA national were not relevant.

8. In the circumstances it was strictly unnecessary for the judge to continue as he did at paragraphs 44 and following to analyse more recent incidents of dependency or household. I accept, as is advanced in the appellant's skeleton argument, that the concept of household is materially different from the concept of dependency. But these considerations, however interesting they may be, have no bearing on the ultimate outcome of this appeal. The First-tier Tribunal Judge had rightly found that, on a proper reading, Regulation 8(2) did not apply and it was therefore immaterial whether the consideration was one of dependency or membership of a household. In all the circumstances, I am not persuaded that there is any material error of law in this determination and accordingly this appeal is dismissed.

Notice of Decision

The appeal is dismissed.

No anonymity direction is made.

Signed Mark Hill Date 30 September 2016

Deputy Upper Tribunal Judge Hill QC