Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/28249/2011

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 24 May 2013
On 21 June 2013

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

marian wendy baah + 1

Appellant
and

ENTRY CLEARANCE OFFICER - ACCRA

Respondent

Representation:

For the Appellant: Ms J Wilding, instructed by B.H.T. Immigration Legal Services
For the Respondent: Mr P Nath, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a national of Ghana born on 26 March 1986. She, together with her brother Edward, appealed decisions of the Entry Clearance Officer refusing them family permits as children over the age of 21 of an EEA national. I need say no more about Edward’s appeal because, although both the appeals were dismissed by the First-tier Judge, subsequently in a Rule 24 response dated 25 September 2012 it was accepted that the judge erred and that Edward’s appeal should succeed on the basis that he was dependent upon the sponsor for essential needs at the date of decision.

2. At an earlier hearing on 10 January 2013 I found an error of law in the judge’s reasoning in respect of concerns he had expressed as to whether or not the appellants were working and therefore in receipt of income at the date of the hearing and also with regard to the ability of the sponsor to continue to maintain them.

3. I should also note the fact that as set out in paragraph 16 of the error of law judgment, it was common ground that the relevant date was the date of hearing before the judge which was 10 April 2012. In the Secretary of State’s response it was argued that the material date was the date of decision, and submissions in that regard were set out. However at the hearing before me Mr Nath accepted that the relevant date was the date of hearing and indeed it was also common ground that since the matter was being re-heard the relevant date was the date of the hearing before me today.

4. The appellant’s claim is based on the fact that she says she has not been able to find work in Ghana since a contract she had to work for a bank came to an end at the end of December 2011. The judge accepted that her mother, the sponsor in the United Kingdom who sent money to her and her brother was an EEA national exercising treaty rights in the United Kingdom. As I have noted above, the judge had concerns about the evidence which I found to be marred by errors of law such that the appeal required to be re-heard.

5. The sponsor, Mrs Charlotte Baah gave evidence. She relied on her statement of 16 May 2013. She had listed the money transfers she had sent between 1 May 2012 and 18 April 2013, and she also produced evidence of a payment of £200 made on 22 May 2013. These sums had been sent to the appellant for the use of her and her brother Edward.

6. The sponsor lives with her son Yau, now aged 11, who was born in Germany in May 2002, and her other son Asamoah who was born on 8 May 1999 and who had been born and brought up in Ghana. He had been in the United Kingdom for two years having previously lived with the appellant and Edward. He was finding it very hard to be separated from them and he missed their influence on him.

7. When cross-examined by Mr Nath the sponsor said that as regards her youngest son Yau he was not so familiar with the appellant and Edward but was happy to see them. He had never lived with them. He would like them all to be together.

8. At the moment the appellant and Edward were not doing anything but looking for jobs in Ghana and had been looking for work for two years or so. A friend had been to see them last year. She sent money in the sum of some £200 or so a month and at other times when they needed it. She was still working, at Southdown Preston Park Day Centre and also was in receipt of benefits as set out in her statement. She could live sufficiently on her income. She wanted her children with her.

9. She could not explain the discrepancy that had concerned the judge about Edward receiving money after the date he finished his national service. She could not remember when he had left national service. The appellant had worked for a bank but she did not know when she had stopped that work. She herself lived with her two sons in a flat which had three bedrooms.

10. On re-examination she said that if they came she would work more hours as if they were here then they would be able to look after her youngest son when she was not there. As to why it was so hard for the appellant to find a job she said it was quite hard in Ghana, people were not getting the jobs including graduates and new job opportunities for graduates were not arising. Her children had asked her to talk to friends to find them jobs.

11. In his submissions Mr Nath noted the sponsor’s evidence that she would do more work, but there was no evidence that this would be possible. Also the impact of their arrival on her benefits would have to be taken into account. There was an issue as to how much her rent was and how she could afford it, though the judge had felt it might be possible for her to send the money.

12. The appellant had not been to work for roughly two years. It was said to be difficult in Ghana to find work and it was unclear how one could prove efforts to find work but there was no evidence of it. There was the question of when she had ceased working in the bank and the sponsor was unable to help with this though it was understandable that she might not know. It was however a central point and there was a lack of evidence. Mr Nath relied on the refusal letter. It had not been found credible that attempts had been made to find work over a two year period.

13. As regards an Article 8 claim, the sponsor had been asked about her sons in the United Kingdom missing the appellant and there was little evidence from her, nothing in the form of letters or cards. There was nothing to establish an Article 8 claim. The evidence did not cross the threshold as regards Article 8 under the Immigration Rules nor under the ECHR. The accommodation was a flat with three bedrooms and there might be issues of overcrowding and there were no details of the living arrangements.

14. In her submissions Ms Wilding made the point that the remaining issue was whether the appellant was dependent on the sponsor for her essential needs as an extended family member. As of today she was unemployed and her mother was her sole source of income. She had worked after graduating in June 2008 but had then been in national service between August 2008 and August 2009 and got a job in December 2010 when she had worked for a bank for a year. She had not had employment since then. That was consistent with the time of earlier unemployment. The Tribunal had heard evidence about difficulties in finding work in Ghana. The fact was that she was unemployed and dependent on the sponsor. There had been increasing numbers of new graduates coming on to the market which would make it more difficult. Her evidence was not inherently inconsistent.

15. With regard to the dependency on her mother, the schedule showed transfers of £1,750 and money sent by a friend in 2012 and there was also today’s receipt and a shipping invoice in respect of a parcel which had been sent before Christmas. As a percentage of her income together with housing and other benefits this came to around 10% which was a realistic amount for her to eke out of her income. Also the appellant and Edward had moved into a smaller flat in Ghana reducing their outgoings. It was not necessary for the appellant to satisfy the Immigration Rules on maintenance and accommodation. In any event the accommodation was effectively three bedrooms with two officially designated bedrooms and a living room space which could be used for sleeping. She had been supporting the appellant and Edward in effect on income support levels. Their presence here would help with the 10 year old son.

16. There was also an Article 8 claim. The son Nana was now 19 and had come to the United Kingdom at 17 and the Tribunal had heard the evidence that he missed the appellant and Edward. Edward would come to the United Kingdom as his appeal had been conceded and that would leave the appellant so there would be an interference with the family lives of all. Although Edward was in Ghana now, his departure was foreseeable. It would be entirely unreasonable to expect the family to go to Ghana, in particular with regard to the youngest who is at school here and had never lived there. The sponsor would have to try to support them in a difficult economy. The interference would be disproportionate.

17. I reserved my determination.

18. It is important to bear in mind, as Ms Wilding reminded me, that the test to be met by the appellant in this case under the EEA Regulations is whether she is dependent on the sponsor for her essential needs. The issues under the Immigration Rules for maintenance and accommodation are therefore not relevant. I consider the evidence to be sufficiently clear in this case and the test is met. I find it credible that the appellant has been unable to find work in Ghana, having had employment for a short period before her national service and thereafter for a year working for a bank. As Mr Nath said, it is difficult to see what evidence could be produced of efforts to find work, although I suppose letters of application could be produced, but if one looks at the witness statement of the appellant, and in particular the monthly household budget that she sets out, it can be seen that the budget is a tight one, and it is difficult to see why a person might choose to rely on income from the United Kingdom rather than obtaining work if work were there to be had. I therefore accept the evidence of the appellant’s unemployment, and I also accept the evidence of the amounts of money that are sent by the sponsor. In fact I consider the evidence shows that even if it were the case that it was argued that the matter stood to be assessed as at date of decision, the appellant would still succeed. The case is made that much stronger by the continuing payments that are being made by the sponsor to her which go to evidence further the payments that were being made previously. Accordingly, on the basis of either the date of decision or the date of hearing before me today, I consider that the appellant has shown that she satisfies the test of showing dependency on the sponsor for her essential needs, and accordingly her appeal against the decision refusing a family permit is allowed.

Signed Date

Upper Tribunal Judge Allen