Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-2024-004474

First-tier Tribunal No: EU/55623/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

1st May 2025

Before

UPPER TRIBUNAL JUDGE MANDALIA

Between

VIJESHA SANJAYKUMAR
(NO ANONYMITY DIRECTION MADE)
Appellants
and

Secretary of State for the Home Department
Respondent

Representation
For the Appellant: No appearance by or on behalf of the appellant
For the Respondent: Ms R Arif, Senior Home Office Presenting Officer

Heard at Nottingham Magistrates Court on 6 December 2024
Decision and Reasons
Introduction
1. The appellant is a national of India. On 26 June 2023 she made an application for an EU Settlement Scheme (EUSS) Family Permit. The application was refused by the respondent on 23 August 2023. In summary, the respondent said the appellant had not provided adequate evidence to show that she is dependent on a relevant EEA citizen, or their spouse or civil partner, as set out in Appendix EU (Family Permit) of the Immigration Rules. The respondent referred to the evidence relied upon by the appellant in support of her application to determine whether she can meet her essential living needs (in whole or in part) without the financial or other material support of the relevant EEA citizen.
2. The respondent noted the appellant had provided evidence of money transfers from her sponsor to her dated from August 2019 to June 2023. The respondent said the fact of money transfers alone is not evidence that the recipient needs the money to meet their essential living needs. The respondent would expect to see evidence which fully details the appellant’s financial position and circumstances in India to establish that without the financial support of the sponsor, the appellant’s essential living needs could not be met. The respondent noted the appellant had provided a bank statement for an account she holds at the Bank of India dated from February 2023 to June 2023. However, the respondent would expect to see evidence covering a longer period of time, considering the EEA sponsor has been resident in the United Kingdom since November 2017. The respondent noted the appellant had provided a property card, and a receipt for house/land tax for the period 01 April 2018 to 31 March 2023. However, the name of the owner of the property stated on the documents does not match the name of the EEA sponsor as stated in her passport. The respondent was therefore unable to determine if the appellant lives in a home owned and provided for her by the sponsor.
3. The respondent concluded:
“In the absence of any further evidence, this department cannot sufficiently establish your dependency, either wholly or partly, upon your EEA sponsor because we are unable to establish if you need the financial support from the EEA Citizen sponsor to meet your essential needs.
On that basis I am not satisfied that you are dependent on a relevant EEA or Swiss citizen or their spouse or civil partner. Therefore, you do not meet the eligibility requirements for an EUSS family permit as a dependent child, grandchild, greatgrandchild over the age of 21 of a relevant EEA or Swiss citizen, or their spouse or civil partner.”
4. The appellant’s appeal against that decision was dismissed by First-tier Tribunal Judge Nixon “the judge” for reasons set out in a decision dated 19 August 2024.
5. The appellant claims the decision of the judge is vitiated by a material error of law. Permission to appeal was granted on 27 September 2024 on one ground only by First-tier Tribunal Judge Hollings-Tennant who said:
“Ground [1] (paragraphs (i) to (vii)) asserts that the Judge erred by failing to properly consider all relevant evidence as to dependency, including the Sponsor’s testimony and documentary evidence of money transfers over a substantial period. There is some merit in this assertion. Whilst the Judge notes a lack of direct evidence from the Appellant, it is unclear whether she had due regard to the Sponsor’s oral and written testimony and considered the extent to which weight could be placed on such. Further, there is no explicit consideration as to whether the evidence of financial support over a period of time was sufficient in itself (see Reyes v Migrationsverket (Case C-423/12) CJEU (Fourth Chamber))”
The Hearing of the Appeal Before Me
6. A Notice of Hearing was sent to the parties on 20 November 2024 informing the parties the appeal will be heard on 6 December 2024. A composite bundle comprising of 191 pages was filed by the appellant’s representatives on 26 November 2024. On 27 November 2024, the Tribunal received an email from the appellant’s representatives (Bhavsar Patel Solicitors) stating counsel who represented the appellant before the FtT is not available on 6 December 2024. They said:
“In the circumstances, may we kindly request the Court to consider the appeal matter on papers only.”
7. The email was treated as an application for an adjournment and on 5 December 2024 the Tribunal suggested to the appellant’s representatives that alternative counsel be instructed. In reply, the Tribunal was informed by Bhavsar Patel Solicitors on 5 December 2024 that they have not instructed alternative counsel.
8. There was no appearance by or on behalf of the appellant at the hearing before me when the appeal was called on for hearing at 11:15am. I am satisfied that the Notice of Hearing was sent by the Upper Tribunal to the appellant’s representatives and that the appellant and her representatives are aware of the hearing. The appellant’s representatives have asked for the appeal to be considered on the papers. I am satisfied that it is in the interests of justice for me to determine whether the decision of Judge Nixon is vitiated by material errors of law, without undue delay.
9. On behalf of the respondent, Ms Arif submits there is no material error of law in the decision of the judge who made adequate findings that were open to the judge on the evidence before the Tribunal. The judge referred to the absence of any evidence from the appellant herself to establish that any financial support provided is required to meet her essential living needs. The only evidence before the Tribunal was from the sponsor. Ms Arif refers to the judgment of Lewison LJ in Volpi & Anor v Volpi [2022] EWCA Civ 464 at [2]-[5] regarding the approach to challenging a finding of fact. The Court of Appeal emphasised that the Upper Tribunal may interfere with findings of fact and credibility only where such a finding is ‘plainly wrong’ or ‘rationally insupportable’. She invites me to dismiss the appeal.
Decision
10. The grounds of appeal claim the judge erred in failing to have regard to the totality of the evidence before the Tribunal that comprised of: (a) a ‘stitched bundle (which amongst other things, included both the appellant’s bundle and the respondent bundles; (b) Supplementary Witness Statement of Sponsor dated 07.08.24; (c) Supplementary Skeleton Argument of Appellant. There was, it is said, a detailed witness statement from the sponsor that set out the appellant’s personal, family and financial circumstances in India. There was also a supplementary statement from the sponsor which contained her evidence in response to some of the specific transactions in the appellant’s bank accounts. The appellant claims the judge erred in that the findings / conclusions reached by the judge are contrary / inconsistent with the evidence in the appeal. It was not right to say “there was nothing provided to show that the sponsor provides for the appellant’s essential living costs”. The appellant claims there was substantial documentary evidence provided of the Sponsor having sent financial support to the appellant to support her over a significant period of time from 2017 to 2024. There was evidence which went towards showing that there was a real situation of dependence. The judge failed to have regard to the explanations provided for transactions between October 2023 and May 2024 and although the judge refers to ‘significant unexplained deposits’, the judge does not identify the deposits that were of concern.
11. The entitlement to an EEA family permit only accrues if the appellant is ‘dependent’ on the union citizen. In Reyes v Migrationsverket (C-423/12), albeit in the context of a ‘Family member’, the CJEU confirmed that dependency is a question of fact and the dependency must be genuine, but if it is found that the family members essential needs are met by the material support of an EEA national, there is no need to enquire as to the reasons for the dependency and there is no reason to show emotional dependency.
12. In Lim – ECO (Manila) [2015] EWCA Civ 1383 Lord Justice Elias, with whom McCombe LJ, and Ryder LJ agreed, said, at [25], it is not enough simply to show that financial support is in fact provided by the EU citizen to a family member. The family member must need the support from his or her relatives in order to meet his or her basic needs. The correct test was set out at paragraph [32] of the decision. The critical question is whether the individual is in fact in a position to support themself. That is a simple matter of fact. If they can support themself, there is no dependency, even if he/she is given financial material support by the EU citizen. Those additional resources are not necessary to enable them to meet their basic needs.
13. In Latayan v SSHD [2020] EWCA Civ 191, Jackson LJ said:
“23. Dependency entails a situation of real dependence in which the family member, having regard to their financial and social conditions, is not in a position to support themselves and needs the material support of the Community national or his or her spouse or registered partner in order to meet their essential needs: Jia v Migrationsverket Case C-1/05; [2007] QB 545 at [37 and 42-43] and Reyes v Migrationsverket Case C-423/12; [2014] QB 1140 at [20-24]. As the Upper Tribunal noted in the unrelated case of Reyes v SSHD (EEA Regs: dependency) [2013] UKUT 00314 (IAC) , dependency is a question of fact. The Tribunal continued (in reliance on Jia and on the decision of this court in SM (India) v Entry Clearance Officer (Mumbai) [2009] EWCA (Civ) 1426 ):
"19. … 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.
…
22. … Whilst it is for an appellant to discharge the burden of proof resting on him to show dependency, and this will normally require production of relevant documentary evidence, oral evidence can suffice if not found wanting. …"”
14. As to the approach to the evidence, Jackson LJ referred, at [24] to the guidance give in Moneke and Others (EEA – OFM’s) Nigeria [2011] UKUT 341 (IAC):
“41. Nevertheless dependency is not the same as mere receipt of some financial assistance from the sponsor. As the Court of Appeal made plain in SM (India) (above) dependency means dependency in the sense used by the Court of Justice in the case of Lebon [1987] ECR 2811 . For present purposes we accept that the definition of dependency is accurately captured by the current UKBA ECIs which read as follows at ch.5.12:
"In determining if a family member or extended family member is dependent (i.e. financially dependent) on the relevant EEA national for the purposes of the EEA Regulations:
Financial dependency should be interpreted as meaning that the person needs financial support from the EEA national or his/ her spouse/civil partner in order to meet his/her essential needs – not in order to have a certain level of income.
Provided a person would not be able to meet his/her essential living needs without the financial support of the EEA national, s/he should be considered dependent on that national. In those circumstances, it does not matter that the applicant may in addition receive financial support / income from other sources.
There is no need to determine the reasons for recourse to the financial support provided by the EEA national or to consider whether the applicant is able to support him/herself by taking up paid employment.
The person does not need to be living or have lived in an EEA state which the EEA national sponsor also lives or has lived."
42. We of course accept (and as the ECIs reflect) that dependency does not have to be "necessary" in the sense of the Immigration Rules, that is to say an able bodied person who chooses to rely for his essential needs on material support of the sponsor may be entitled to do so even if he could meet those needs from his or her economic activity: see SM (India) . Nevertheless where, as in these cases, able bodied people of mature years claim to have always been dependent upon remittances from a sponsor, that may invite particular close scrutiny as to why this should be the case. We note further that Article 10(2)(e) of the Citizens Directive contemplates documentary evidence. Whether dependency can ever be proved by oral testimony alone is not something that we have to decide in this case, but Article 10(2)(e) does suggest that the responsibility is on the applicant to satisfy Secretary of State by cogent evidence that is in part documented and can be tested as to whether the level of material support, its duration and its impact upon the applicant combined together meet the material definition of dependency.
43. Where there is a dispute as to dependency (as there was in the present case) immigration judges should therefore carefully evaluate all the material to see whether the applicant has satisfied them of these matters."
15. Whether the appellant is dependent on the sponsor was therefore a factual question for the Tribunal to assess on the evidence before the Tribunal. In her witness statement dated 7 August 2024, the sponsor maintains that the appellant has no other source of income. She refers to an arrangement between the appellant and her friend by which they loan sums of money to each other occasionally, when required, on the understanding that the sums loaned are repaid within a week. She provides explanations for other credits shown on the bank statements, including a claim made by the appellant that the husband of a friend of the appellant, Mr Kunjam Somvar, used the appellant’s account to transfer money to his wife because his wife does not have a bank account. The explanations are said to have been provided by the appellant to the sponsor who has set them out in a statement. For reasons that are neither apparent nor explained, there is no witness statement from the appellant herself.
16. I have carefully considered the decision of Judge Nixon. The judge records the sponsor attended the hearing and gave evidence with the assistance of a Gujarati interpreter. The appellant’s case is summarised at paragraphs [6] to [9] of the decision. The judge’s findings and conclusions are set out at paragraphs [12] to [15] of the decision.
17. The judge noted that there is evidence of some money transfers from the sponsor to the appellant, but the judge had not been provided with any evidence at all to show that the sponsor pays for the appellant’s essential daily living needs, either wholly or in part, despite that having been an issue raised by the respondent from the outset. There was no evidence before the Tribunal regarding the appellant’s circumstances in India, no evidence of the appellant’s claim that she is in the process of a divorce or that she has no other income. The judge noted there have been significant unexplained deposits to her account which do not match any bank statements from the sponsor. The judge said that similarly, there seems to be a number of unusual transactions in October 2023 and May 2024 with no explanation from the appellant herself despite it being raised in the review.
18. The judge referred to the evidence of the sponsor that the appellant lent money to a friend which was then repaid, but the judge said there is nothing from the appellant or her friend to confirm this, and there is no explanation as to how the appellant could afford to lend money, if the money given to her by the sponsor is her only income and for her essential living needs. The judge agreed with the respondent’s remarks in the review, that comments in the skeleton argument do not equate to evidence.
19. It is now well established that the Upper Tribunal is not entitled to find an error of law simply because it does not agree with the decision, or because the Tribunal thinks the decision could be more clearly expressed or another judge can produce a better one. Baroness Hale put it in this way in AH (Sudan) v SSHD [2007] UKHL 49 [2008] 1 AC 678), at [30]:
"Appellate courts should not rush to find such misdirection simply because they might have reached a different conclusion on the facts or expressed themselves differently."
20. In Volpi v Volpi [2022] EWCA Civ 464, [2022] 4 W.L.R. 48, in dismissing an appeal against findings of fact, the Court of Appeal emphasised that it was not for an appeal court to come to an independent conclusion as a result of its own consideration of the evidence; the question is whether the trial judge's conclusion was rationally insupportable.
21. Having considered the grounds of appeal, and the evidence that was before the FtT, I am quite satisfied that the judge reached a decision that was open to the judge on the evidence (or lack of it) before the Tribunal. The findings and conclusions reached by the judge are neither irrational nor unreasonable, or findings that are wholly unsupported by the evidence.
22. It follows that I am satisfied that there is no material error of law in the decision of the FtT and I dismiss the appeal.
Notice of Decision
23. The appeal to the Upper Tribunal is dismissed.
24. The decision of First-tier Tribunal Judge Nixon stands.

V. Mandalia
Upper Tribunal Judge Mandalia

Judge of the Upper Tribunal
Immigration and Asylum Chamber

3 April 2025