Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: OA/11634/2014

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On December 14, 2015
On January 4, 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

MRS KARAM BIBI
(NO ANONYMITY DIRECTION MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:

For the Appellant: Mrs Price, Counsel, instructed by Nasim & Co Solicitors
For the Respondent: Ms Johnstone (Home Office Presenting Officer)

DECISION AND REASONS

1. The appellant, citizen of Pakistan, applied for a family permit as a family member of an EEA national. The respondent refused her application on September 5, 2014 on the grounds she was not satisfied the EEA national was responsible for her essential needs as required by Regulation 12 of the Immigration (European Economic Area) Regulations 2006. The appellant appealed this decision on September 22, 2014 under section Regulation 26 of the 2006 Regulations.

2. The appeal came before Judge of the First-tier Tribunal Siddiqi on May 6, 2015 and she dismissed the appeal in a decision promulgated on May 27, 2015.

3. The appellant sought permission to appeal that decision on June 19, 2015 on the ground the Tribunal had erred in its approach to dependency and the threshold test to be applied. Permission to appeal was granted by Judge of the First-tier Tribunal Shimmin on August 28, 2015 on the basis it was arguable there was an error in law.

4. The matter came before me on the above date and on that date I heard submissions from both Mrs Price and Ms Johnstone.

5. The First-tier Tribunal did not make an anonymity direction and pursuant to Rule 14 of The Tribunal Procedure (Upper Tribunal) Rules 2008 I make no order now.

ERROR IN LAW

6. Mrs Price submitted the Tribunal had failed to have regard to the application form and written evidence in which it was clearly stated that the appellant was and had been maintained for a long time. She submitted that evidence of support had been enclosed with the application and the Tribunal had failed to consider these issues when assessing whether the sponsor had provided for the appellant's essential needs. She argued it was possible the Tribunal had misunderstood the sponsor's evidence because he had been talking about support over a twenty-year period as against the period leading up to the application. The appellant was seventy years of age and all her immediate family in Pakistan were of a similar age and unable to support her hence her reliance on the appellant for her essential needs. She submitted there was an error in law and the decision should be reversed.

7. Ms Johnstone relied on the Rule 24 response dated September 8, 2015 and submitted the Tribunal had given clear reasons for why it was not satisfied she was dependant on the sponsor or that the sponsor provided for the appellant's essential needs. She submitted there was no error in law.

DISCUSSION AND FINDING

8. In a detailed decision the Tribunal refused the application. Between paragraphs [25] and [32] the Tribunal set out its findings and the law that applied on such applications.

9. Mrs Price submitted the Tribunal failed to have regard to the application form itself and in particular the answer given to Q136. However, at paragraph [14] of its decision the Tribunal noted that she "fully" relied on the sponsor to meet her maintenance costs and that she lived alone and had no close relatives to whom she could turn to. The Tribunal also had regard to the sponsor's witness statement in which he stated that he had provided his mother with financial support since his father's death in April 1987 and that his sister did not take any financial responsibility for the appellant.

10. I therefore reject Mrs Price's submission that the Tribunal failed to have regard to this evidence as this was something the Tribunal had regard to when assessing the evidence.

11. The respondent was not satisfied with the following matters:

a. Whether the appellant was financially dependent on the sponsor.
b. Whether the appellant's daughter financially contributed to the appellant's financial circumstances.
c. The sponsor's means were modest and the respondent questioned whether he was the only source of her income.
d. The appellant appeared to live in a property owned by relatives other than the sponsor.

12. The Tribunal considered the written and oral evidence and placed weight on inconsistencies that arose during cross-examination of the sponsor. The Tribunal reminded itself it was concerned with whether the appellant was dependent on the sponsor. It then set out the relevant case law and in particular what was meant by dependency an in particular that financial dependency meant support to meet a person's essential needs and as long as that person was providing support for the person's essential needs it mattered not that the appellant received support from others.

13. The Tribunal's assessment of the evidence effectively commenced at paragraph [28] of its decision. The Tribunal made an adverse finding against the appellant because she had failed to state how much money she received from the appellant in her application form or how much her expenses were. The Tribunal noted inconsistencies in the sponsor's evidence surrounding the level of support and whilst Mrs Price today submitted that the sponsor misunderstood what was being asked of him there is nothing within the notes of hearing or the Tribunal's decision that there was an issue. The appellant's former counsel had not highlighted any issues in closing submissions and the findings made in paragraph [29] were findings on the facts that were open to the Tribunal.

14. Mrs Price rightly pointed out that as long as the sponsor was providing financial support for the appellant's essential needs then the period of that support was not important. However, the Tribunal made a finding in paragraph [30] that although evidence of support was submitted this did not mean the appellant needed this for her essential needs. The findings made in paragraph [30] were open to the Tribunal as it had the advantage of hearing the oral evidence.

15. The final inconsistency arose over the property itself. Inconsistencies arose with the evidence of who lived in the property and by implication who may provide support. Further inconsistencies were identified and again I find the Tribunal was entitled to make the findings it did.

16. At paragraph [32] the Tribunal assessed the evidence in the round and although she accepted the submission that the appellant does not need to demonstrate she had been dependent on the sponsor for sometime she nevertheless concluded that the appellant was tasked with demonstrating she was financially dependent on the sponsor for her essential needs and for reasons given throughout the decision the Tribunal found she was not.

17. Mrs Price's submission that at seventy years of age the appellant was clearly reliant on her son as is the custom in Pakistan but that was an argument placed before the Tribunal and due to inconsistencies the Tribunal rejected it.

18. Today's hearing is not a findings of fact hearing but it is a hearing to consider whether the Tribunal erred for the reasons set out in the grounds.

19. Mrs Price has failed to demonstrate the Tribunal applied an incorrect standard of proof and she further failed to persuade me the findings made by the Tribunal were perverse or simply not open to it.

20. In the circumstances there is no error in law.

DECISION

21. There was no material error and I uphold the earlier decision dismissing the appeal.

Signed:

Deputy Upper Tribunal Judge Alis

FEE AWARD

I make no fee award as the appeal was dismissed.

Signed:

Deputy Upper Tribunal Judge Alis