Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003145
UI-2024-003148
UI-2024-003147
UI-2024-003146

First-tier Tribunal No: EU/52518/2023
EU/52521/2023
EU/52520/2023
EU/52519/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

23rd May 2025

Before

UPPER TRIBUNAL JUDGE HANSON
DEPUTY UPPER TRIBUNAL JUDGE PICKERING

Between

MARYAM MOHSEN SALEM HASAN (A1)
DALIA AHMED MOHAMMED HASAN AQEL (A2)
SALEM AHMED MOHAMMED HASAN AQEL (A3)
FATIMA AHMED MOHAMMED HASAN AQEL (A4)
(ANONYMITY ORDER NOt MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Greer, of Counsel
For the Respondent: Mr Thompson, a Senior Home Office Presenting Officer

Heard at Phoenix House (Bradford) on 27 January 2025

DECISION AND REASONS

1. The appellants appeal with permission of Upper Tribunal Judge Bruce dated 31 July 2024 the decision of the First-tier Tribunal promulgated on 5 June 2024.
Background to the appellants’ appeals
2. The sponsor is the husband of the first appellant. The first appellant and the sponsor are the parents of the second, third and fourth appellants.
3. On 23 January 2023 the appellants made an application for a Family Permit under the EU Settlement Scheme (EUSS FP) on the basis that that they were family members of a relevant EEA Citizen.
4. This application was refused in a decision dated on 14 March 2023 (RFRL). The RFRL referred to a previous application made on 7 March 2022 under EUSS FP made on 7 March 2022 which was refused on 29 July 2022. It was said that in the 7 March 2022 had been supported by documents which had been found to be fraudulent after verification checks. This decision was not appealed.
5. In the 23 March 2023 application, the appellant was asked in the application form a series of questions one which asked if the appellant had ever given false information when applying for a visa, leave to enter or to remain. The answer recorded was ‘no’. The respondent considered that this was incorrect given the previous refusal.
The appeal before the First-tier Tribunal
6. The First-tier Tribunal Judge (‘the Judge’) dismissed the appellants’ appeal. In doing so the Judge noted that the appellant had not appealed the 7 March 2022 decision and that the Tribunal had no jurisdiction to consider the lawfulness of the decision [§8].
7. The Judge in the alternative went on to make findings about the document verification report (DVR)[§9].
The grounds of appeal
8. The appellants appeal on three grounds. The first ground was that the Judge had misdirected themselves as to the approach to the previous decision that had not been appealed. The second ground was that the Judge’s approach to dishonesty was perverse or lacked adequate reasons. The final ground was that there was a failure to resolve a dispute between the parties/inadequate reasons had been provided for the materiality of the money transfers.
9. Permission was granted by UTJ Bruce on all grounds following a refusal of permission to appeal by the First-tier Tribunal.
The hearing before the Upper Tribunal/discussion
10. The respondent had provided a Rule 24 in advance of the hearing and Mr Greer had drawn the respondent and Tribunal’s attention SD (paragraph 320(11): forgery) India [2010] UKUT 276 (IAC)
11. In relation to ground two this ground is broken down into three component parts. We found that §9-11 of the grounds are in reality a disagreement with the findings made by the Judge about the DVR.
12. The first point in ground one is that the Judge did not direct itself to the burden and standard of proof when considering dishonesty. This was an experienced Tribunal and we have asked ourselves whether we could and should infer that the Judge knew this. The difficulty with adopting this approach is that in the section of the determination entitled ‘The Law’ it is not the case that the Judge is silent on the burden and standard of proof. Had they been, the inference could have been drawn. Rather within this section, the Judge states that it is the appellant who bears the burden of establishing any EEA right of admission or residence [§4]. Working through the determination there is nothing to indicate that the Judge considered the burden lay with anyone other than the appellants. For example, in setting out the issues [§7] there is not an indication of an alternative self-direction other than that given in ‘The Law’ section in form or substance.
13. We expressed our main concern to Mr Greer was whether given the detailed consideration of the DVR whether any express lack of self-direction as to the burden and standard of proof was material. We have ultimately concluded that it was and therefore accept his submissions. We have been unable to infer that the Judge was aware that the burden was with the respondent and whether that burden had been discharged. The reference to the appellant and sponsor having not provided evidence undermining the weight that can be attached to their claim that the documentation was not false raises concerns for us as to the appropriate self-direction. It is unclear whether at that stage the respondent had discharged the burden upon her so that in effect there was a case for the appellant to answer. Put another way, if the respondent had not discharged the burden upon her there was no need for the appellant to produce evidence.
14. We consider that the First-tier determination contains material errors of law in that the Tribunal did not sufficiently demonstrate that the correct burden and standard of proof had been applied in the assessment of dishonesty.

Notice of Decision and disposal of the appeal
15. The decision of the Judge contains material errors of law and is set aside.
16. We have considered whether, having found that the decision contains a material error of law, we should remit the case to the First-tier Tribunal or whether we should remake the decision.
17. We recognise that remaking rather than remitting would ordinarily be the approach. However, we considered at the heart of ground two is a matter of procedural fairness as to the appellants’ appeal being decided using the appropriate burden and standard of proof.
18. We have decided that in remitting no facts should be preserved. The appeal should be listed before a different Judge than the one who made the decision we have set aside.

RA Pickering
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 March 2025