Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case Nos: UI-2024-000868, UI-2024-000869, UI-2024-000870 & UI-2024-000871
FtT Nos: EA/02878/2021, EA/02876/2021, EA/02874/2021 & EA/02870/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 6th of March 2025

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN
DEPUTY UPPER TRIBUNAL JUDGE RIPLEY

Between

SAIMA NAEEM
NAEEM NAEEM
FATIMA IQBAL
BISMA IQBAL
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr A Khan, Solicitor, Manchester Associates Legal Services
For the Respondent: Mr N Wain, Senior Presenting Officer

Heard at Field House on 4 February 2025

DECISION AND REASONS
Introduction
1. The Upper Tribunal is required to remake decisions in these joined appeals which concern a family in Pakistan seeking EEA Family Permits to join their EEA sponsor in the United Kingdom. The challenged decisions are dated 5 February 2021.
2. The applications for EEA Family Permits were made in December 2020 shortly before the end of the transition period following the United Kingdom leaving the European Union and consequently the Upper Tribunal is required to consider the Immigration (European Economic Area) Regulations 2016.
3. Unfortunately, these appeals are of some age.
4. First-tier Tribunal Judge Clarke dismissed the appellants’ appeals by a decision dated 10 September 2021. Upper Tribunal Judge Macleman set aside the decision of the First-tier Tribunal in its entirety by a decision dated 22 March 2023. We observe that Judge Macleman issued an anonymity order but provided no reasons for his decision.
5. First-tier Tribunal Judge Abebrese dismissed the appellants’ appeals by a decision dated 20 October 2023. Judge Abebrese made an anonymity direction though again no reasons were given. The respondent was granted permission to appeal and Upper Tribunal Judge Kamara set aside the First-tier Tribunal decision on 28 June 2024. Judge Kamara did not make an anonymity order, noting that previous orders had not been reasoned and the order of Judge Abebrese had been set aside by Upper Tribunal Judge Norton-Taylor when granting permission to appeal.
6. The appellants did not seek anonymity before the panel.
7. We take this opportunity to thank Mr Wain who came into this hearing late in the day and ensured that the respondent was represented.
Relevant Facts
8. The sponsor, Mr Imran Awan, is a Norwegian national of Pakistani heritage. As a Norwegian he is permitted to exercise EEA rights consequent to the European Economic Area Agreement (as adjusted) which entered into force on 1 January 1994. He entered the United Kingdom in May 2014 and was granted settled status in December 2019.
9. The sponsor has both full-time and part-time employment in the United Kingdom. Over time he has accrued property investments in Norway and Pakistan.
10. The first appellant is a housewife and the sponsor’s sister. The second appellant is the sponsor’s brother-in-law and the husband of the first appellant. He is a day labourer with intermittent periods of employment. He is said to have been unemployed since May 2022. The third and fourth appellants are the sponsor’s nieces and the children of the first and second appellants. They were minors at the date of their applications for EEA Family Permits. The third appellant is presently aged 17 and the fourth appellant is aged 22.
11. The evidence filed with this Tribunal identifies that until April 2019 the first appellant collected rent from a commercial property owned by the sponsor in Pakistan and was permitted by him to keep sums for her family’s use. The sponsor and the first appellant contend that such sums were sufficient to meet the essential needs of the first appellant and her family. Since April 2019, the sponsor has remitted money on a monthly basis to the first and second appellants in the region of £250 and £100 respectively. These sums are said to meet essential needs.
12. The respondent’s refusal decisions are consistent in respect of the four appellants. We observe core elements of the first appellant’s decision in which the respondent addressed concern that evidence of funds sent by the sponsor were not established to have been received by the first appellant. Additionally, the limited evidence considered in isolation did not prove the first appellant to be financially dependent on the sponsor. The respondent confirmed that it “would expect to see substantial evidence of this over a prolonged period, considering the length of time the sponsor has been resident in the United Kingdom”. Concern was also raised as to how the sponsor could afford to support twelve family members seeking EEA Family Permits.
Other family applicants
13. Prior to the end of the transition period following the United Kingdom leaving the European Union, twelve members of the sponsor’s family applied for EEA Family Permits to join him in the United Kingdom. In addition to the appellants, the sponsor has supported applications for (i) his brother, Farhan Ishaq, (ii), his brother Junaid Awan, his sister-in-law and their two children, and (iii) his brother, Adnan Awan, his sister-in-law and their child.
14. Farhan Ishaq’s application was refused. He was subsequently successful on appeal and has resided in the United Kingdom since 2022. He resides with the sponsor.
15. The applications of Adnan Awan, his wife Sajida Adnan and their child were refused. They were successful on appeal and have resided in the United Kingdom since 2022. They reside with the sponsor.
16. The applications of Junaid Awan, his wife Fatima Junaid and their two children were refused. Their appeal hearing is listed in the First-tier Tribunal in Manchester in April 2025. The sponsor’s intention is that he will rent the family a property for their use when they arrive in the United Kingdom.
Proposed accommodation
17. The sponsor filed evidence with the Upper Tribunal confirming that that he is a party to an assured short hold tenancy for a six-bedroom property in the Greater Manchester area running from 1 April 2025. The rent is £950 per month. He has confirmed that the appellants in this appeal will reside in this property upon their arrival in the United Kingdom.
Law
18. Directive 2004/38/EC (“the Citizens’ Rights Directive”) sets out the conditions for the exercise of the right of free movement for citizens of countries in the European Economic Area. It was transposed domestically by the Immigration (European Economic Area) Regulations 2016, which is now subject to saving provisions consequent to the United Kingdom leaving the European Union.
19. Regulation 8 of the 2016 Regulations, as relevant to this appeal:
‘(1) In these Regulations “extended family member” means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies a condition in paragraph (2), (3), (4) or (5).
(2) The condition in this paragraph is that the person is—
(a) a relative of an EEA national; and
(b) residing in a country other than the United Kingdom and is dependent upon the EEA national or is a member of the EEA national’s household; and either—
(i) is accompanying the EEA national to the United Kingdom or wants to join the EEA national in the United Kingdom; or
(ii) has joined the EEA national in the United Kingdom and continues to be dependent upon the EEA national, or to be a member of the EEA national’s household.’
[Emphasis added]
20. The Court of Justice of the European Union confirmed in Case C-83/11 Secretary of State for the Home Department v Rahman EU:C:2012:519 [2013] QB 249, at [33], that dependency is to be established as existing at the date of the application.
21. In Bigia v Entry Clearance Officer [2009] EWCA Civ 79; [2009] Imm AR 515, at [24], the Court of Appeal confirmed that the test of dependency is taken to be that established by the CJEU in Case C-01/05 Jia v Migrationsverket EU:C:2007:1 [2007] QB 545, at [43], namely the applicant needs the material support of the EEA national in order to meet their essential needs in their home country.
22. The Upper Tribunal confirmed in Moneke (EEA – OFMs) Nigeria [2011] UKUT 00341 (IAC); [2011] Imm AR 928, at [41], that dependency is not the same as mere receipt of some financial assistance from the sponsor. It means that the person needs financial support from the Union citizen to meet his essential needs, not to have a certain level of income.
23. The appellants in this matter are therefore required to establish that the material support received by the sponsor met their essential needs at the date of application.
24. The appellants are not direct family members of the sponsor. They are not his parents, wife or children. Under the 2016 Regulations they seek to be considered as extended family members.
25. In Dauhoo (EEA Regulations – reg 8(2)) [2012] UKUT 00079 (IAC) a person can succeed in establishing that they an extended family member in any one of four different ways, each of which requires proving a relevant connection both prior to arrival in the United Kingdom and in this country:
i. prior dependency and present dependency;
ii. prior membership of a household and present membership of a household;
iii. prior dependency and present membership of a household;
iv. prior membership of a household and present dependency.
26. It is not necessary for the appellants to show prior and present connection in the same capacity: i.e. dependency-dependency or household membership-household membership ((i) or (ii) above). A person may also qualify if able to show (iii) or (iv).
27. Consideration in Dauhoo was directed to regulation 8(2) of the Immigration (European Economic Area) Regulations 2006 whereas this appeal concerns regulation 8(2) of the 2016 Regulations. We are satisfied that for present purposes, the requirements of regulation 8(2) of the 2016 Regulations are substantively the same.
28. Mr Wain accepted that prior dependency and present dependency arises in this appeal. It is not the contention of the appellants that they will reside in the sponsor’s home when they arrive in the United Kingdom.
29. We observe the guidance in Sohrab and Others (continued household membership) Pakistan [2022] UKUT 00157 (IAC).
30. Article 7 of the Citizens’ Rights Directive is concerned with the right of residence for more than three months. Article 7(1)(b):
“1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:
...
(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State”
[Emphasis added]
31. This requirement rests upon direct and extended family members as well as upon EEA nationals.
32. In Case C-333/13 Dano v Jobcentre Leipzig EU:C:2014:2358 [2015] 1 W.L.R. 2519 the Court of Justice observed as to the provision of social benefits that where, for the purposes of the Citizens’ Rights Directive, a period of residence was longer than three months but less than five years one of the conditions which the Directive laid down for a right of residence was that economically inactive persons must have sufficient resources of their own. The Directive seeks to prevent economically inactive Union citizens – including extended family members - from using the host Member State's welfare system to fund their means of subsistence. Accordingly, the Citizens’ Rights Directive does not preclude domestic legislation excluding nationals of other Member States from entitlement to certain social benefits, although they are granted to nationals of the host Member State who are in the same situation. Such exclusion is not discriminatory.
33. The Court of Justice confirmed in Case C-93/18 Bajratari v Secretary of State for the Home Department EU:C:2019:512 [2020] 1 WLR 2327, at [30], that article 7(1)(b) merely requires that the EEA national (or family member) concerned has sufficient resources at their disposal to prevent them from becoming an unreasonable burden on the social assistance system of the host state during their period of residence, without establishing any condition as to the origin of those resources.
Hearing
34. The sponsor attended and gave evidence. He relied upon his witness statements. In answer to questions he detailed that he had supported his sister, the first appellant, since 2009. He undertook this task because he is the eldest son, and it fell upon him to take over the responsibility of providing for his younger siblings when his father was unable to continue in this role. He worked in Saudi Arabia and the United Arab Emirates before securing Norwegian citizenship.
35. His brother-in-law, the second appellant, worked in the construction business as a day labourer working on a day-to-day basis. Wages are low, equivalent to £2 to £3 per day. As his brother-in-law gets older, contractors are preferring younger people and though he is willing to work he is not securing employment.
36. The sponsor confirmed that he provides for his nieces, and without his support the family would not survive.
37. In cross-examination, he explained that over time he would use different means of remitting money to the first and second appellants depending upon which means offered the best rate on the day. He used MoneyGram, Ria and ACE to transfer money. Since 2019 he had been using his bank’s money transfer app on his phone to remit funds directly to the bank accounts of the first and second appellants. He also brought money with him when he visited the appellants in Pakistan but accepted that he had no documentary evidence that he had provided funds on these trips.
Analysis
38. Consequent to a concession made by the respondent at the outset of the hearing, we address ‘present dependency’ first in our decision.
Present dependency
39. An issue arising in this matter was the approach to be adopted to the assessment of dependency in respect of the four appellants in circumstances where eight other family members of the sponsor had applied for EEA Family Permits. In some instances, the applications were founded upon prior dependency and present dependency, as in this appeal. In other applications, considerations of prior dependency and present membership of a household arose.
40. We consider that the assessment exercise is not a linear one, where the issue of dependency in each matter is looked solely in isolation. This would permit, for example, a sponsor with a spare room and available funds of £200 per month, to contend that each individual family applicant could reside in the spare room and have £200 per month available to them for their needs. Adopting a linear approach, the spare room and accompanying £200 could be used to support several applications. The judicial task in assessing whether the appellants in this appeal have sufficient resources for themselves not to become a burden on the social assistance system of the host Member State during their period of residence requires the undertaking of a holistic assessment. In this matter, concerned with present dependency and so reliance upon financial assistance from a sponsor, the question of sufficient resources requires consideration as to the circumstances of all twelve family members if present in the United Kingdom. Having observed the legal position, we note the respondent’s concession on this issue below.
41. Several bundles have been filed over time with the First-tier Tribunal and the Upper Tribunal containing financial evidence relating to the first and second appellants and the sponsor.
42. At the outset of the hearing Mr Wain conceded on behalf of the respondent that upon considering the financial evidence filed with the Upper Tribunal, the sponsor can support the four appellants and so it was accepted that they meet the requirement of ‘present dependency’. This conclusion was founded upon examination of the sponsor’s income and expenditure in addition to the accommodation to be provided to the appellants not breaching statutory overcrowding requirements. Mr Wain confirmed that the concession was not extended to the remaining cohort with an outstanding appeal before the First-tier Tribunal.
Prior dependency
43. Mr Wain identified the sole issue remaining before the panel as the ‘Lim assessment’: was the money provided to the appellants by the sponsor required to meet their essential needs in Pakistan?
44. In Lim v Entry Clearance Officer, Manila [2015] EWCA Civ 1383, [2016] Imm AR 421 the Court of Appeal confirmed the critical question is whether a direct or extended family member is in fact in a position to support themselves. If a relative can support themself, there is no dependency, even if they are given financial support by the EEA national. The Court of Appeal applied the Court of Justice judgment in Case C-423/14 Reyes v Migrationsverket EU:C:2014:16 [2014] QB 1140. Receipt of support is a necessary but not sufficient condition. It is still necessary to determine that a family member is dependent in the sense of being in need of the assistance. We observe that it is irrelevant why a family member is dependent, whether because they have given their money away or because they are unwilling to work. However, dependency is not determined by the mere fact that an EEA national makes resources available to a relative.
45. The respondent adopted a narrow position to the evidence before the Upper Tribunal. She accepted that there were money transfers. She did not accept that the remittances were to meet essential needs. Two submissions were advanced on the Lim issue: firstly, the family had an alternative source of income. Secondly, there were discrepancies between a small number of the documents filed which undermined the appellants’ case as to dependency.
46. Turning to the first submission, the sponsor was not challenged in cross-examination as to his evidence that his brother-in-law has for some time been struggling to secure employment as a day labourer. The crux of the respondent’s position is that certain funds entering the accounts of the first and second appellants over time did not identify the provider and so originated from another source. We have considered these entries with care and examined the sponsor’s bank statements. Whilst observing the respondent’s concern, we are satisfied to the appropriate standard that the sums placed into the appellants’ bank accounts correlate with funds leaving the sponsor’s bank account.
47. The focus of Mr Wain’s cross-examination was directed toward certain documents in the appellant’s bundle which, when considered together, were said to establish discrepancies. The primary concern was the difference in dates as to sums said to be sent by the sponsor and their receipt in the bank accounts of the appellants. A difficulty for this panel is that the operation of bank accounts in Pakistan, both procedurally and by law, is a matter of expert evidence, as it is not knowledge possessed by this Tribunal: R (MK) v Secretary of State for the Home Department [2017] EWHC 1365 (Admin), [2017] Imm AR 1425. As the asserting party to the purported untruthfulness of the appellant and sponsor in respect of the discrepancies, the respondent did not rely upon expert evidence. We observe the sponsor’s evidence, which we accept is no more than his understanding, that money remitted by a bank app after business hours on a Friday or over the weekend, may be recorded on his bank statement on the Monday or Tuesday, though received by the appellants on an earlier date. Observing the significant number of remittances from the sponsor’s account and related sums arriving in the appellants’ accounts, as evidenced in the papers before us, and the absence of challenge to these transactions by the respondent, we are satisfied that the sponsor’s response is more likely than not the true position. The respondent has not made out her challenge; the disputed entries relate to remittances sent to the appellants by the sponsor.
48. Having heard the sponsor give evidence, and considered the evidence filed in the round, we are satisfied on balance that he provided the appellants with funds when he visited them in Pakistan. He has a long history of ensuring that the family is provided with financial assistance. We accept that he earns more per month than he requires for his personal expenditure, as established by his financial documents filed before us, and so we are satisfied that he provided cash to the appellants when he visited them.
49. We have considered the financial documents with care. We are satisfied that the sponsor has been providing the appellants with money for several years, either from receipts accruing from rental income in Pakistan, or by remittances sent from the United Kingdom. We are satisfied that the appellant’s sister has at all relevant times been a housewife, and that her daughters are not employed. Additionally, we are satisfied that the sponsor’s brother-in-law has previously worked as a day labourer but has been unable to secure employment since 2022. We also find that when he was able to secure employment, he was earning insufficient sums to provide for the family and required the support of the sponsor. We conclude that the sums provided by the sponsor to the first appellant and her family were necessary to meet their essential needs. The appellants meet the requirement of prior dependency in Pakistan.
50. In the circumstances, and observing the respondent’s concession as to present dependency, the appeals are properly to be allowed.
Notice of Decision
51. The decision of the First-tier Tribunal sent to the parties on 20 October 2023 was set aside in its entirety.
52. The decision is remade. The appeals are all four appellants are allowed.

D O’Callaghan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 February 2025