Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/09804/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision and Reasons Promulgated
On January 25, 2017
On February 13, 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

MR MUMMIN AHMED
(NO ANONYMITY DIRECTION MADE)
Appellant
and

THE ENTRY CLEARANCE OFFICER
Respondent

Representation:
Appellant Mr Mummin (Sponsor)
Respondent Mr Harrison (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. I do not make an anonymity order under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended).

2. The appellant is a national of Somalia. On February 1, 2015 the appellant made an application for entry as a family member of an EEA national exercising treaty rights in this country, The respondent refused his application in a decision dated February 10, 2015.

3. The appellant appealed that decision on July 15, 2015 under Regulation 26 of the Immigration (EEA) Regulations 2006 and Section 82(1) of the Nationality, Immigration and Asylum Act 2002 and his appeal came before Judge of the First-tier Tribunal Malik (hereinafter referred to as "the Judge") on July 21, 2016. In a decision promulgated on August 2, 2016 she dismissed his claim.

4. The appellant appealed the Judge's decision on August 8, 2016 and permission to appeal was granted by Judge of the First-tier Tribunal Keane on November 10, 2016. FTTJ Keane found the grounds pleaded amounted to nothing more than a disagreement with the Judge's decision. FTTJ Keane then examined the decision in detail and concluded there was an arguable error in law because the Judge had not made a finding whether the sponsor was telling the truth and as there was evidence of payments this was an arguable error in law.

5. The matter came before me on the above date and I heard submissions from both the sponsor and Mr Harrison.

SUBMISSIONS

6. The sponsor was not too sure what was going on but I suggested to him that his argument was based on what FTTJ Keane had stated in his decision and the sponsor agreed.

7. Mr Harrison adopted the Rule 24 statement dated November 24, 2016 and stated that FTTJ Keane had gone outside his remit and had "stepped into the arena". He had already found that the findings were open to the Judge and the grounds as pleaded were nothing more than a disagreement. Two issues had been before the Judge namely were they related and was the appellant dependant on the sponsor. The Judge had addressed both issues and the new ground was not a ground that should be considered.

DISCUSSION AND FINDINGS

8. In granting permission to appeal Judge of the First-tier Tribunal Keane identified one arguable error of law but had previously concluded that the appellant's own grounds were nothing more than mere disagreement.

9. In MR (Permission to appeal: Tribunal's approach) [2015] UKUT 29 the Tribunal made it clear that in considering whether an application for permission to appeal the Upper Tribunal must avoid granting permission on what, properly analysed, is no more than a simple quarrel with the First-tier Tribunal judge's assessment of the evidence.

10. The Judge had the advantage of hearing oral evidence and considering all of the papers. In this case, she concluded that money had been sent to the appellant by the sponsor but upheld the respondent's submission that the appellant had failed to show he and the sponsor were related. This did not require the Judge to make a finding that the sponsor's evidence was truthful. He accepted money had been spent but the burden of proving he was related as claimed lay on the appellant. They could be related in some other way and it was for the appellant to satisfy the Judge.

11. The point raised by FTTJ Keane was in essence the same point made in the grounds. Although the sponsor did not use the same words he was implying the same and FTTJ Keane found this amounted to nothing more than disagreement.

12. At the appeal hearing before me the sponsor asked about DNA and without giving any advice it seems the sponsor has the solution available to him in light of the Judge's finding that the appellant is being maintained by him.

13. I am satisfied that the Judge did not err in law.

DECISION

14. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law. I uphold the original decision.

Signed: Dated:

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD

I make no fee award as the appeal was dismissed.

Signed: Dated:

Deputy Upper Tribunal Judge Alis