Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-000541
UI-2024-000542

First-tier Tribunal No: EA/00280/2020
EA/00284/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:

28th February 2025

Before

UPPER TRIBUNAL JUDGE LODATO
DEPUTY UPPER TRIBUNAL JUDGE FRANTZIS

Between

GEORGINA NANA SEKYERE
VICTORIA AGYABENG SEKYERE
(NO ANONYMITY ORDER MADE)
Appellant
and

THE ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Unrepresented, no attendance
For the Respondent: Mr Thompson, Senior Presenting Officer

Heard at Phoenix House (Bradford) on 10 February 2025

DECISION AND REASONS

Introduction

1. This decision follows the resumed hearing for these appeals, heard on 10 February 2025. In his error of law decision dated 24 October 2024, Upper Tribunal Judge Lane allowed the appellants’ appeals against the decision of First-tier Tribunal Judge Saffer based on a procedural irregularity which resulted in the matters proceeding in the absence of the appellants’ representative and sponsor.

2. The appellants appeal against the decisions of the respondent, dated 5 December 2019, refusing their applications for entry clearance to join the man they claim is their father in the UK under the provisions of the Immigration (European Economic Area) Regulations 2016 (‘the 2016 regulations’). In short, they claim that the respondent reached the wrong factual conclusion in rejecting their claims to be the biological daughters of the sponsor. An additional issue was taken in respect to Victoria Sekyere in that the respondent concluded that she had not established that she was in a relationship of dependency with the sponsor. As Georgina Sekyere was under the age of 21 at the time of her application, it was not necessary for her to show dependency under the legal scheme within the 2016 regulations. In allowing the appeal against FtTJ Saffer’s decision, UTJ Lane did not preserve any findings of fact and ordered that the appeal hearing be re-made in the Upper Tribunal. The matter effectively came to us as a complete rehearing of the underlying appeal.

Background

3. As can be seen from the brief summary of the background above, these appeals have been in train for over four years. The appeals were first dismissed by FtTJ Hillis in a decision promulgated on 11 May 2021. His decision was set aside on appeal by UTJ Reeds in a decision promulgated on 19 April 2022. No findings of fact were preserved, and the matter was remitted to the First-tier Tribunal to be heard afresh. This was the means by which the appeals came before FtTJ Saffer on 25 October 2023. For reasons which will become clear, it is necessary to summarise the events which preceded that hearing.

4. On 23 October 2023, FtTJ Saffer refused, on the papers, an application to adjourn the hearing which was made because instructed counsel was unavailable due to a medical appointment. The judge found that there remained sufficient time to instruct different counsel. At the hearing, the sponsor, Mr Sekyere, did not attend without explanation, and the appellants were not represented. It was decided that the appeal hearing should proceed in their absence. UTJ Lane found there to be a procedural irregularity underpinning the decision of FtTJ Saffer to proceed because it appeared that he was not made aware that the respondent had not opposed the previous application to adjourn made on behalf of the appellants nor did he appear to be aware of a decision taken by a Legal Officer to refuse an adjournment application before he refused the written application on 23 October 2023. Given this procedural backdrop, it was found that the appellants’ sponsor and representative might be forgiven for thinking that they need not attend the hearing.

Legal Framework

5. Regulations 6(b) and 12 of the Immigration (European Economic Area) Regulations 2016 provided (at the time when these applications were made) that an entry clearance officer must grant a family permit to a family member of an EEA national who is a worker in the UK. “Family member” is defined in paragraphs 7 of the Regulations which provides:

Regulation 7 — “Family member”
(1)  In these Regulations, “family member” means, in relation to a person (“A”)—
(a)  A's spouse or civil partner;
(b)  A's direct descendants, or the direct descendants of A's spouse or civil partner who are either—
(i)  aged under 21; or
(ii)  dependants of A, or of A's spouse or civil partner;
(c)  dependent direct relatives in A's ascending line, or in that of A's spouse or civil partner.
[…]

6. These provisions were repealed on 31 December 2020, but it was uncontroversial that they remained applicable in the context of these appeals because the underlying applications and refusals were manifestly taken under this legal scheme when they were in force and the Immigration and Social Security Coordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 preserved the appeal rights in respect of pending appeals and applications.

7. The meaning of dependence for the purposes of the regulations was considered by the Upper Tribunal in Reyes (Regs: dependency) [2013] UKUT 314. The following principles were identified at para 19 of the judgment:

“From the [authorities], we glean four key things. First, the test of dependency is a purely factual test. Second, the Court envisages that questions of dependency must not be reduced to a bare calculation of financial dependency but should be construed broadly to involve a holistic examination of a number of factors, including financial, physical and social conditions, so as to establish whether there is dependence that is genuine. The essential focus has to be on the nature of the relationship concerned and on whether it is one characterised by a situation of dependence based on an examination of all the factual circumstances, bearing in mind the underlying objective of maintaining the unity of the family.[…] Third, it is clear from the wording of both Article 2.2 and regulation 7(1) that the test is one of present, not past dependency. […] Fourth (and this may have relevance to what is understood by present dependency), interpretation of the meaning of the term must be such as not to deprive that provision of its effectiveness.”

8. Tanveer Ahmed v SSHD [2002] Imm AR 318 established the following principles in relation to the judicial assessment of documentary evidence:

a. The appellant bears the burden of demonstrating that a document should be relied upon by the tribunal.
b. In reaching findings on the reliability of documentary evidence, the tribunal must consider the document in the context of all the evidence.
c. It is not necessary to conclude that a document is a forgery before finding it to be unreliable.

9. The appellants bear the burden of substantiating the primary facts in support of their case. The standard they must satisfy is on the balance of probabilities.

Appeal to the Upper Tribunal

10. As is evident from the procedural background summarised above, the importance of attending the hearing and the potential implications of failing to engage in the proceedings could not have been clearer. The remaking hearing was against the backdrop of an error of law being found in circumstances where a hearing wrongly proceeded in the absence of the sponsor or the representatives.

11. Before the remaking hearing, on 29 January 2025, an application to adjourn the hearing was refused by an Upper Tribunal lawyer. The application was made on the basis that instructed counsel, Ms Aziz, was unavailable. It was decided that there was no reason why alternative representation could not be arranged in the time available, or Ms Aziz could rearrange her commitments to attend the hearing.

12. On the morning of the remaking hearing, our clerk informed us that only the sponsor’s wife, a witness in the proceedings, had attended. Neither the sponsor nor the appellants’ representatives were in attendance. We asked our clerk to make enquiries of both the sponsor and the legal representatives to explain their absence. Our clerk was unable to contact the sponsor, his wife having indicated that he had gone to work for the day. While contact was made with the legal representative, there was a lack of clarity about why the appellants were not represented at the hearing. When we asked our clerk to call again and request a fuller explanation for their absence, she was informed that he was in a meeting and would not be available for an hour. It was against this wholly unsatisfactory backdrop that we called the matter on. By this time, the sponsor’s wife had departed and could not be contacted. Mr Thompson invited us to proceed in the absence of the sponsor and the representatives. He noted that the circumstances bore similarities to the position which confronted Judge Saffer when he proceeded in the parties’ absence.

13. We found it to be manifestly in the interests of fairness and justice to proceed to hear the matter notwithstanding that there was no one present to prosecute the appeal. We were satisfied that those acting on behalf of the appellants were issued with the decision to refuse the adjournment application and that they had nonetheless chosen to absent themselves from the hearing. In the circumstances, and applying well-established principles of fairness to both sides in the proceedings, we found that it was appropriate to proceed. We were mindful that these proceedings have been extant for over four years now and it is important that the appeals draw to a conclusion by avoiding delay, so far as compatible with the proper consideration of the issues (see r.2(2)(e) of the Upper Tribunal Procedural Rules). Those acting on behalf of the appellant were given every opportunity to participate fully in the proceedings but nonetheless failed to take the necessary steps to appear (r.2(2)(c)). Ultimately, when we considered the proportionality of adjourning this matter again, given the complexity of the issues, the anticipated costs and the resources of the parties (r.2(2)(a)), it was abundantly clear that the interests of justice and fairness would not be best served by adjourning the remaking hearing. Accordingly, we proceeded to hear the appeal.

14. At the re-making hearing, we heard oral submissions from Mr Thompson for the respondent before reserving our decision. We address any submissions of significance in the discussion section below.

Discussion

15. Mr Thompson addressed the principal controversial issues to be decided in the appeal. He suggested that the first issue was whether the appellants had established on the balance of probabilities that they were the biological children of the sponsor, Mr Sekyere. If this issue went against the appellants, the appeal must be dismissed because they could not qualify as family members to bring themselves within the requirements of paragraph 7 of the 2016 regulations. If they succeeded in showing that they were the sponsor’s daughters, Georgina Sekyere’s appeal would succeed without more but Victoria Sekyere would also need to establish that she was dependent on her father because she was over 21 years old when she applied for entry clearance to join him in the UK.

16. As long ago as the refusal decisions taken in 2019, the respondent has always challenged the evidence relied upon by the appellants in seeking to show that they were the biological daughters of the sponsor. In the refusal decisions, the respondent referred to a report of the US Department of State in which the following observation was made:

registrations not made within one year of an individual's birth are not reliable evidence of relationship, since registration, including late registration, may often be accomplished upon demand, with little or no supporting documentation required.

17. Such general concerns only harden when the records relied upon by the appellants are considered. In each of the certified copies of entries in the register of births, the year of registration is recorded as 2018, many years after the appellants were born in 1998 and 2005. The informant for both entries is recorded as Ether Fosuaa, their mother. The difficulty for the appellants is that their case is that their mother died on 18 July 2009, some nine years before she is recorded as providing the information which underpinned the ex post facto registration of their births. Despite this point being taken as long ago as 8 April 2020 when the Entry Clearance Manager reviewed the decisions of the Entry Clearance Officer, the appellants have never sought to explain how it is that their long-deceased mother provided the information which underpinned the registration of their births which named the sponsor as their father. The birth certificates represented the only information said to be from an independent and official source which might support the proposition that the familial relationships were as claimed.

18. Mr Sekyere sought to address in his various witness statements the delay in the registration of the births by the Ghanaian authorities. He stated that the original manuscript birth certificates had been mislaid and that a new automated birth registration system was introduced in Ghana in 2016 which resulted in him applying for the appellants’ registration in 2018. He explained that there was no need to do this any earlier because such an official record was not required to access education. We were also provided with documents purporting to be from the Registrar of Births and Deaths in which she verified the birth certificates as being registered in 2018. However, none of this began to account for the naming of the appellants’ long-deceased mother as the informant which underpinned the process of registration.

19. The only other evidence going to the issue of paternity were the assertions of the witnesses about their understanding that the sponsor is the appellants’ father and has conducted himself in a manner consistent with being their father by providing long-standing financial support. Further evidence was provided to show a pattern of communication and contact over the years which was said to be in keeping with him being their father. We had no cause to doubt that the sponsor had regularly sent money to Ghana over a period of many years amounting to several thousand pounds. However, even taking this aspect of the evidence at its highest as tending to show a relationship of dependency, we were not persuaded that it could, without more, establish paternity especially given the concerns outlined above in relation to the circumstances in which the birth certificates were registered in 2018. While the decision of Judge Hillis in dismissing the appeals was set aside by Judge Reeds without preserving any findings of fact, we were struck by his account of the sponsor’s evidence at [15] of his decision:

In an effort to ensure that I was not missing any documents and in light of the fact that neither Representative had asked about DNA evidence, I sought to clarify the situation with the Sponsor. He informed me that he had been advised to get DNA reports but he did not do so for two reasons. Firstly, the tests would be expensive. When I asked how much he was quoted he informed me he never asked how much it would cost. Secondly, he stated that “there are some adverse information possibilities”. When I asked what he meant by that phrase he stated “a famous footballer had sought DNA reports and the results came back negative despite him being sure that he was the father of the children tested. I want to avoid this. I do not want this sort of thing to happen with me.”

20. Only considering the record of what the sponsor said in his oral evidence before Judge Hillis (as opposed to any findings of fact) raises yet further concern about whether the sponsor is fully confident about his claimed parentage of the appellants.

21. When we stand back and look to the overall evidential picture which was before us, we are not satisfied on the balance of probabilities that the appellants have established that they are the daughters of the sponsor. The process adopted to register the births several years after the births were said to have occurred raised a discrepancy of considerable significance about which there has never been so much as an attempt to explain. The long-standing background of financial support is not of sufficient weight to sustain an inference that the sponsor is the appellants’ father and the narrative evidence in support of this proposition could not be tested by the hearing process because the sponsor did not attend the hearing. The only records available of his oral evidence in a previous hearing tended to suggest he had his own doubts about whether he was truly their father. Assessing the evidence in the round, the evidence is not strong enough to discharge the burden of showing that the appellants are related to the sponsor as claimed. The appeals must be dismissed because they have not established on balance that they are qualifying family members of their sponsor.

22. The decisions under appeal do not breach the appellants’ rights under the EU Treaties as they applied in the United Kingdom prior to 31 December 2020

Notice of Decision

The appeals are dismissed.

Paul Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

26 February 2025