Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/02031/2013

THE IMMIGRATION ACTS

Heard at : Field House
Determination Promulgated
On : 11th July 2013

…………………………………

Before

Upper Tribunal Judge McKee

Between

secretary of state for the home department

Appellant
and

SAMUEL ANTWI ANNING

Respondent

Representation:

For the Appellant: Mr T. Wilding of the Specialist Appeals Team
For the Respondent: Miss Akua Okyere-Darko of BWF Solicitors

DETERMINATION AND REASONS

1. In September 2007 Samuel Anning, a Ghanaian citizen who is now aged 31, was issued with a residence card, valid for five years, as the ‘extended family member’ of his brother, Frank Anning, who had acquired Dutch nationality and was exercising ‘Treaty rights’ as an employee of Mitie Cleaning Ltd. On 28th August 2012, shortly before the expiry of the five-year period, Samuel applied for a permanent residence card on the basis of five years’ continuous residence in accordance with the EEA Regulations 2006, as provided for by regulation 15(1)(b) of those Regulations. The application form gave Samuel’s address as 50, Forest Rise in Milton Keynes, which was evidenced by a Council Tax bill for the year 2012-2013. The charge for 50, Forest Rise that year was £861, net of a 25% discount for single occupancy. Evidence was also attached showing that Frank was now working for Ocean Contract Cleaning Ltd, and his address was given as 10, Coachmaker Court, Milton Keynes. No evidence was adduced as to how Samuel was able to maintain a separate household at Forest Rise.

2. The application was refused on 2nd January 2013. The author of the ‘reasons for refusal’ letter was under the impression that the earlier application in 2007 had been on the basis that Frank was Samuel’s father, not his brother. That can hardly be right, as Frank is only 13 years older than Samuel. The caseworker was also under the impression that the Council Tax bill was for Frank’s residence, not Samuel’s, and inferred from the fact that there was a 25% discount for single occupancy that Samuel could not be resident in the same household as Frank “and thus not dependent.” The caseworker seems not to have been aware that dependency and household membership are separate ways of establishing that one is an ‘extended family member’. They do not have to coexist.

3. An appeal to the First-tier Tribunal came before Judge Pirotta on 13th May 2013, when it was conceded on behalf of the Secretary of State that Frank and Samuel are brothers. The Appellant’s Bundle provided by BWF Solicitors includes a witness statement by Samuel, in which he makes no mention of Forest Rise but says that he has always lived with his brother, first in Edmonton and then, since 2008, at 10 Coachmaker Court, where he now resides. In another witness statement, Frank says the same thing about living with Samuel, first in Edmonton and, since 2008, at Coachmaker Court. At the hearing, however, Samuel gave evidence that he had left Coachmaker Court in November 2009 and had lived with his two children, now aged 4 and 2, at 50 Forest Rise until November 2012, when he moved back to Coachmaker Court. He had not seen the mother of the two children since six months after the birth of the younger child, as she had disappeared. Frank confirmed that Samuel had come back to Coachmaker Court in November 2012, having previously lived there until around October 2009.

4. Samuel also said that he had been working continuously since 2007, and was currently working 40 hours per week, although he was also in receipt of Working Tax Credit, Child Tax Credit and Child Benefit. But because his expenses were too great, Frank had been helping him out financially, to the tune of around £100 a month in cash. Frank confirmed that he was indeed giving Samuel £100 a month. Despite the inclusion in the Appellant’s Bundle of bank statements from Barclays showing that in May, June and July 2012 Samuel had received more than £1,000 a month in salary from UK Mail and over £500 a month in Working Tax Credit and Child Tax Credit, to say nothing of £125 a month in Housing Benefit and £33.70 a week in Child Benefit, Judge Pirotta considered that Samuel was dependent on Frank and that “any financial dependency is sufficient to meet the Regulations.” That astonishing conclusion was challenged by the Secretary of State in seeking permission to appeal to the Upper Tribunal.

5. Judge Pirotta did not actually allow the appeal on the basis that Samuel had acquired a right of permanent residence in the UK. She found that he had not resided in the UK for a continuous period of five years in accordance with the EEA Regulations, because the continuity had been broken by Frank’s absence in Ghana between May and September 2008. As I mentioned at today’s hearing, and as Mr Wilding had already realised, she was wrong about that. Regulation 3(2)(a) permits an absence of up to six months before continuity is broken, and Frank had only been away for four months. But it is clear in any event that for three out of the five years before he applied for a permanent residence card, Samuel was living in separate accommodation, working and fathering children, and was not dependent on Frank.

6. The appeal was allowed on the basis that, as at the date of hearing, Samuel was both dependent on Frank and a member of his household. Thus, according to Judge Pirotta, he met the criteria of regulation 8(2)(a) that he should be “residing in an EEA State in which the EEA national also resides.” Once again, that was a surprisingly erroneous conclusion for the judge to have reached. The United Kingdom is not ‘an EEA State’ for the purposes of the EEA Regulations : see reg. 2. In any event, the words “in an EEA State” had been replaced in June 2011 by “in a country other than the United Kingdom”, as was clear from an extract from the EEA Regulations which was handed up to the judge. For that matter, the word “in which the EEA national also resides” were deleted in November 2012. This paragraph refers, of course, to the situation of an extended family member before he comes to the United Kingdom, not when he is already here.

7. Permission to appeal to the Upper Tribunal was sought, and granted, only on the issue of dependency, and when the matter came before me today, it being accepted on all hands that the First-tier Tribunal had made the errors of law described above, Miss Okyere-Darko contended that these were not material errors, since the judge had got it right on the issue of household membership. Even if the evidence did not entitle her to find that Samuel was dependent on Frank, she was entitled on the evidence to find that Samuel was once again a member of Frank’s household, and hence was an extended family member who was eligible for another five-year residence card. Mr Wilding argued that living under the same roof as Frank was not enough on its own to make Samuel a member of Frank’s household, and that more needed to be disclosed about what the arrangements were. I took the view that the errors of law on the other aspects of the appeal were such that the conclusion on household membership could not be regarded as unaffected by those errors, and hence able to stand on its own as a freestanding reason for allowing the appeal. It was appropriate therefore to set aside the First-tier determination and re-make the decision on the appeal. As Samuel and Frank Anning were both present, and there was a Twi interpreter available, we were able to proceed without having to adjourn the case.

8. In their oral evidence, the brothers both averred that they had been living together at 10, Coachmaker Court since November last year, but in cross-examination Mr Wilding probed whether this was so. He took Samuel Anning to several of the documents included in the Appellant’s Bundle, starting with a series of T-Mobile bills sent to Samuel at Coachmaker Court between December 2008 and May 2009. These were followed by a letter sent by T-Mobile to Samuel at Coachmaker Court in April 2013. Mr Wilding inquired why there was such a long gap between the series of bills ending in May 2009 and the letter of April 2013. Samuel insisted that he threw away most of the T-Mobile bills which he received, but Mr Wilding suggested that the reason for the long gap was that T-Mobile bills during the three-year period when Samuel was avowedly living elsewhere would have continued being sent to Coachmaker Court. So the fact that a letter from T-Mobile had been sent to Coachmaker Court this year did not necessarily mean that Samuel was living there.

9. Samuel had also adduced two bank statements from the Halifax, for January and March 2013, addressed to him at Coachmaker Court. The January statement showed one transaction, a deposit of £40, while the March statements showed two transactions, a deposit of £300 followed by the withdrawal of £310 by BWF Solicitors. Mr Wilding asked Samuel what the Halifax account was actually for. It contrasted with the Barclays statements sent to Forest Rise, which was the account into which Samuel’s income and all his benefits were paid, and out of which he paid for all his day-to-day expenses. Samuel asserted that his Barclays statements were now being sent to Coachmaker Court. But he had not thought to bring any.

10. Samuel went on to say that he had not seen the mother of his children for seven months. The two children were living with him at Coachmaker Court, where Frank also lived with his wife and four children. He denied Mr Wilding’s suggestion that he was not living there at all, but was still living at Forest Rise. I was shown Samuel’s driving licence, which gives his address as Coachmaker Court.

11. Frank now gave oral evidence, in which he confirmed that Samuel was living in his household and helping out with contributions to the household bills. He was in fact earning quite a lot more than Frank. As for Samuel’s two children, however, Frank did not know where they lived. He only saw them on Sundays at church, with “the lady” (viz their mother). When Mr Wilding expressed surprise that Frank should not know where his nephews lived, he indicated that he did not approve of the fact that his brother had fathered them out of wedlock. He confirmed that when Samuel was not staying at Coachmaker Court, mail would still arrive there for him, which he would come and collect. But Frank denied the suggestion that Samuel was not living there at present. When Mr Wilding put it to him that according to Samuel, the two children were living at Coachmaker Court, he could only say that he sees them every Sunday with “the lady”.

12. In his closing submissions, Mr Wilding drew attention to the failure of both Samuel and Frank Anning to mention in their witness statements that Samuel had ever moved out of Coachmaker Court. When it was obvious from the documents reproduced in the Appellant’s Bundle that he had, a story was concocted that he had moved back in after applying for a permanent residence card. But the Halifax account giving that address was manifestly only for show, while the fact that certain documents had been sent to Samuel there (including two letters from House of Champions Ministries, and a reply by Milton Keynes College to an inquiry by Samuel, which were handed up today) did not mean that he was actually living at that address. The most cogent evidence that he was not living there came in the form of the serious discrepancy between the evidence of Samuel and that of his brother as to where Samuel’s children were living. That the brothers could not give a consistent account of such a basic fact of life at Coachmaker Court cast doubt on the credibility of the entire story.

13. In her closing submissions, Miss Okyere-Darko contended valiantly that despite the discrepancy highlighted by Mr Wilding, there was enough evidence to establish that Samuel himself was living at Coachmaker Court, and hence was the extended family member of an EEA national who was exercising ‘Treaty rights’.

14. Mr Wilding’s skilful cross-examination has, in my judgment, exposed as a sham Samuel Anning’s attempt to pass himself off as a member of his brother’s household. The Halifax statements giving Samuel’s address as Coachmaker Court bore the statement number 15 for January 2013 and 17 for March 2013, so one can readily work out that the first statement must have been sent out in November 2011, when Samuel was avowedly not living at Coachmaker Court. Neither the Halifax statements nor the other correspondence sent to Samuel at Coachmaker Court prove that he has been living there in recent months, while Samuel’s allegation that the children are living with him and that their mother has disappeared has been given the lie by Frank’s evidence that the children are being looked after by their mother. One can readily infer that she lives with them at Forest Rise, although Milton Keynes Council were unaware of that last year, when they gave a 25% discount off the Council Tax for the property, on the basis that only one adult was living there.

15. The upshot is that Samuel Anning is neither a dependant nor a member of the household of an EEA national who is a ‘qualified person’ in terms of the EEA Regulations 2006, and hence he is not entitled to a residence card.

DECISION

The Secretary of State’s appeal is allowed.

The order for anonymity made by the First-tier Tribunal was wholly inappropriate for a case of this sort, and is not maintained.

Richard McKee
Judge of the Upper Tribunal
12th July 2013