Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/04267/2015
OA/04270/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9th September 2016
On 22nd September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between

MUHAMMAD HASNAT
muhammad adeel
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Richardson, Counsel, instructed by Morgan Mark Solicitors
For the Respondent: Miss A Fijiwala, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is the Appellants' appeal against the decision of First-tier Tribunal Judge Swinnerton promulgated on 10th February 2016, in which she found that the Appellants did not met the requirements of the Immigration (European Economic Area) Regulations 2006.
2. In the appeal before me in the Upper Tribunal the Appellants have been represented by Mr Richardson of Counsel and the Respondent has been represented by Miss Fijiwala, the Senior Home Office Presenting Officer.
3. Within her decision which is a matter of record and therefore not repeated in full here, Judge Swinnerton noted how the two Appellants were nationals of Pakistan and how they had appealed against the decisions by the Entry Clearance Officer Islamabad, in respect of the First Appellant dated 4th February 2015 and in respect of the Second Appellant dated 29th January 2015 to refuse them entry to the United Kingdom as family members of an EEA national.
4. She then considered the ECO's reasons for refusal as set out within those refusal notices and noted how the ECO had found that the Appellants had applied to join their Sponsor, a Romanian national residing in the UK Monica Mosut who was said to be the married partner of the brother of the Appellants. She noted how the ECO originally found that he was not satisfied the Appellant's had demonstrated the need for financial support provided in order to meet their essential needs in Pakistan and the ECO stated that the Appellants had not provided any documentation in relation to their own financial circumstances or documentary evidence relating to the financial circumstances of their parents with whom they lived in Pakistan, and that therefore the ECO concluded that the Appellants had not demonstrated financial dependency upon the Sponsor and their applications were refused.
5. The Judge then in her decision considered the Grounds of Appeal and the Entry Clearance Manager's review and in accordance with these notes of the evidence having heard from both Mr Bilal and also from Miss Mosut. She then recorded the submissions made in terms of the findings that were made. The First-tier Tribunal Judge went on to consider and find that she did not consider that the evidence of Mr Bilal was either credible or consistent and she found that she did not consider that the evidence of Miss Mosut was consistent.
6. She further found at paragraph 50 that she was not satisfied that the evidence provided showed that the money sent to Pakistan was specifically for the financial support of the Appellants, as opposed to financial support generally for the family of Mr Bilal and it was found that Mr Bilal had not offered any explanation as to why the financial support to the Appellants did not start in 2010, when his father was then unable to work.
7. The Appellants have now sought to appeal that decision and within the Grounds of Appeal it was argued that the Judge's findings on dependency of the Appellants on there brother Mr Bilal and his partner contains material errors of law and it is argued that the decision was self contradictory and poorly reasoned.
8. Within the grounds of appeal the findings of the Judge between paragraphs 49 and 51 were set out, but it was argued that the Judge's findings were inconsistent with her own account of the evidence. Examples were given including that in paragraph 22 of the witness statement it was said that Mr Bilal had been supporting his parents for the last [more than] three years and in paragraph 24 of the decision it was recorded that Mr Bilal stated that he supported his parents for more than three years, but the Judge noted that the support was said to have been for the last three years at paragraph 49.
9. Permission to appeal was granted by Designated First-tier Tribunal Judge McCarthy on 1st August 2016 when he found that the Grounds of Appeal argued that the Judge misunderstood the evidence as to when financial support commenced and for how long it continued. He found that it was arguable that the Judge failed to properly consider the evidence as to when financial support began and that it was also arguable that the Judge failed to have regard to the holistic approach to dependency as indicated by the Upper Tribunal in the case of Reyes (EEA Regulations - dependency) [2013] UKUT 314 and on that basis he granted permission to appeal.
10. I have also seen and taken account of a Rule 24 reply provided by the Secretary of State dated 12 August 2016. Although within that document was stated that the Respondent had not had sight of the determination, it was stated that it was open to the Judge to make findings regarding the credibility of the Sponsor, Mr Bilal and Miss Mosut and it would be submitted that the Judge considered the evidence carefully. There was reference to the Judge stating that she had carefully considered the evidence at p49, which in fact appears to be a reference to paragraph 49 of the determination, which does indicate that the respondent did in fact have sight of the determination, as it is that paragraph the Judge does talk about having carefully considered the evidence .
11. In their oral submissions before me it has been argued by Mr Richardson on behalf of the Appellants drew my attention to paragraph 49 in which it was stated that:
"Having considered the evidence carefully I did not find the evidence of Mr Bilal at the hearing to be consistent or credible. Mr Bilal was not consistent as to the point in time when financial support to the Appellants was said to have commenced. There was reference to that beginning in 2010 and also to it having been for the last three weeks."
12. Mr Richardson said that in fact Mr Bilal had not been inconsistent in the evidence that he gave and that when one considered the evidence recorded by the Judge at paragraph 22 it was recorded that "he and his partner have been supporting the Appellants for over (more than) three years".
13. The Judge recorded at paragraph 24 that Mr Bilal in giving oral evidence before him, in evidence-in-chief, had said that he had been supporting the Appellants for more than three years and his father had been disabled for five years. His father had previously worked in agriculture and suffered from back pain. The Judge then made a note of the questions asked in cross-examination at paragraph 26 and noted that Mr Singh has asked questions of Mr Bilal and Mr Bilal had given evidence that he was sending money to his father in 2012 and his father stopped working in 2010. He recorded that Mr Bilal that he had been supporting his father financially since 2010 and that the beneficiary of the money transfers had changed from his brothers as his father was unable to get the money due to his mobility problems.
14. In regard to paragraph 49 Miss Fijiwala argued that the Judge was entitled to take account of the credibility issue and the Judge had been correct find that there had been an inconsistency in the evidence given by Mr Bilal regarding when the support had started.
15. When one actually looks at the finding made by First-tier Tribunal Judge Swinnerton at paragraph 49 her finding was "There was reference to that beginning in 2010 and also to it having been for the last three years" in respect of when the financial support to the Appellants was said to have commenced. However, that this does not accurately record the evidence given by Mr Bilal, that he and his partner been supporting the appellants for over (more than) three years and that he had been supporting them financially since 2010. A period of more than three years does equate to a period in excess of three years, which would potentially be consistent with the support having started in 2010. The Judge having misquoted the evidence of Mr Bilal, has not explained adequately, the reason why she found there to be an inconsistency in that regard. This does amount to an error in law.
16. As regards to the credibility of Miss Mosut regarding the judge's findings at paragraph 51, in that paragraph the Judge stated:
"I did not find the evidence of Miss Monut at the hearing to be credible. It is claimed by Miss Monut that she has been living together with Mr Bilal for five years but she was not able to state when Mr Bilal started providing financial support to the Appellants nor when the father of the Appellants stopped working."
17. In that regard Mr Richardson again argues that in fact there were not inconsistencies in the evidence given by Miss Mosut and the Judge has not properly explained her reasoning in that regard.
18. Miss Fijiwala argues in that regard that the Judge was able to reach the findings that she made regarding the credibility of Miss Mosut made findings which were open to her.
19. Again when one actually considers the evidence given by Miss Mosut she stated as recorded by the Judge that in paragraph 29 of her decision that she was in a genuine and subsisting relationship with her partner and that they had been living together for more than five years and he also recorded that Miss Mosut and her partner had been supporting the Appellants for the last [more than] three years.
20. The Judge recorded at paragraph 31 that in cross examination:
"Mr Singh then asked questions of Miss Mosut who gave evidence that she started sending money to the Appellants in 2013 and that her partner did so beforehand, but that she was not sure when her partner had started to do so."
21. In paragraph 32 the Judge recorded that Miss Mosut could not remember when the father of the Appellants stopped working.
22. The Judge at paragraph 51 said that he did not find the evidence of Miss Mosut to be credible and stated that Miss Mosut said that she had been living with Mr Bilal for five years, but she was not able to state when Mr Bilal started providing financial support to the Appellants. Miss Mosut clearly had given evidence herself that she and her partner had been supporting the Appellants for more than three years and said in evidence that her partner did so beforehand. I do not consider the Judge has fully and adequately explained her reasoning in that regard in terms of the rejection of the credibility of Miss Mosut. She has not adequately explained why, even if Miss Mosut had been supporting the appellant for more than three years, that would mean that she should be expected to know when Mr Bilal's father stopped working, or when Mr Bilal had himself started to fund the Appellants. The judge's reasoning in this regard is not adequate or sufficient to allow the appellants to know why they lost, and amounts to an error in law.
23. I raised at the start of the appeal an issue as to whether or not in fact the two Appellants would actually satisfy the requirements of the Immigration (European Economic Area) Regulations 2006 in any event given that it is said that at the time they were the relatives of Mr Bilal rather than the relatives of Miss Mosut. Seemingly, however, this issue was not raised before the First-Tier Tribunal Judge, nor is it raised as a reason for refusal within the refusal letter, nor has there been any cross-appeal on this basis. Nor is it dealt with within the Rule 24 reply. Mr Richardson therefore has not had the opportunity of taking instructions on the point or making full submissions in respect of that issue, and in circumstances where it was not argued before the First-tier Judge, I do not consider that it is appropriate for me to make findings specifically on that point at this stage.
24. I am therefore not in a position to state that the same decision would have been reached had the errors not been made, and therefore I do find that the errors do amount to material errors in law, such that the decision of First-tier Tribunal Judge Swinnerton is set aside and the matter remitted back to the First-Tier Tribunal for rehearing before any First-tier Tribunal Judge other than First-tier Tribunal Judge Swinnerton.

Notice of Decision
25. The decision of First-tier Tribunal Judge Swinnerton does contain material errors of law and is set aside. The case is remitted back to the First-tier Tribunal to be heard before any First-tier Tribunal Judge other than First-tier Tribunal Judge Swinnerton. No case has been made for an anonymity order before me and I do not make any such order.

Signed Date 21st September 2016

R F McGinty
Deputy Upper Tribunal Judge McGinty