Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000453

First-tier Tribunal No: EA/03945/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

13th May 2025

Before

UPPER TRIBUNAL JUDGE HANSON

Between

WAJID ALI
(NO ANONYMITY ORDER MADE)
Appellant
and

AN ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Saima Bibi, the sponsor, in person.
For the Respondent: Dr Ibisi, a Senior Home Office Presenting Officer.

Heard at Manchester Civil Justice Centre on 9 May 2025

DECISION AND REASONS

1. The Appellant appeals with permission a decision of a judge of the First-tier Tribunal (‘the Judge’), promulgated on 25 November 2024, in which he dismissed the Appellant’s appeal against the refusal of his application for a Family Permit as an extended family of Saima Bibi, an Italian citizen (“the Sponsor”).
2. The Judge’s findings are set out from [9] of the decision under challenge. Having analysed the evidence the Judge concludes that the Appellant is not the Sponsor’s extended family member for the purposes of the EEA Regulations.
3. The Appellant sought permission to appeal which was granted by another judge of the First-tier Tribunal on 21 January 2025, the operative part of the grant being in the following terms:
2. The grounds of appeal assert that the judge erred in overlooking that to qualify as an extended family member the appellant need only satisfy dependency or household membership, the appellant’s claim was based on dependency and so the judge erred in considering household membership and how long he and the sponsor had lived apart; the judge failed to consider documentary evidence, including evidence the sponsor provides the appellant with accommodation; and the judge erred in failing to determine whether the appellant’s essential living needs could be met without the financial assistance of the sponsor.
3. The judge identified the respondent’s reason for refusal was that the Appellant had not established the required dependency on the sponsor. The judge noted evidence of remittances from the sponsor to the appellant from 2015, 2017, 2018, 2019, and 2020, and found “it is reasonable to conclude that the sponsor chose to provide financial assistance to the appellant following the exhaustion of the appellant’s independent resources.” There is no finding as to whether the Appellant could meet his essential living needs without the financial assistance of the sponsor. There is however a finding about an interruption in continuity, which contributed to the decision to dismiss the appeal, but which does not appear to have been part of the Respondent’s reasons for refusal, and is arguably not adequately reasoned.
4. The grounds therefore disclose arguable errors of law material to the outcome of the appeal, and so permission is granted on all of them.
Discussion and analysis
4. The Judge sets out the correct self-direction in relation to the burden and standard of proof and the relevant date at [5 – 6] and confirms that the Appellant’s bundle of 170 pages has been taken into account in addition to the witness statements. There was no cross-examination or opportunity for the Judge to discuss any concerns with any person as the Appellant asked for the appeal to be determined on the papers.
5. The Entry Clearance Officer (ECO) accepted the Sponsor is an Italian national and set out the reasons why the application was refused in the following terms:

• Only those family members referred to under Article 2 of the Directive 2004/38/EC have an automatic right to join or a company and EEA family member to another member state when that EEA national is exercising a treaty right.
• Article 3 of Directive 2004/38/EEC provides the basis for a member state to consider other relatives, such as ‘extended family members’ and determine the terms of entry and residence to such ‘’ in accordance with their own domestic legislation. (Article 3 (2)).
• The United Kingdom has transposed the terms of Article 3 into Regulation 8 of the Immigration (European Economic Area) Regulations 2016. As Regulation 8 (4) makes clear, the United Kingdom is allowed to set terms on one it will accept extended family members and allow them to reside in the United Kingdom as family members of an EEA national.
• In order to meet the relevant EEA Regulations you must demonstrate that you are a dependent relative of your EEA sponsor and that your EEA sponsor is a qualified person. Financial dependents should be interpreted as meaning that you need the financial support of the EEA national or his or her spouse/civil partner in order to meet your essential needs in the country where you are present and that the sponsor will be able to support you once in the UK.
• On your application you state that you are financially dependent on your sponsor. As evidence of this you sponsor to you, however, it is noted that these transfers are dated immediately prior to your application (within the last 9 months). Unfortunately, this limited amount of evidence in isolation does not prove that you are financially dependent on your sponsor. I would expect to see substantial evidence of this over a prolonged period.
• In addition to money transfer receipts, this office would also expect to see evidence which fully details yours and your family circumstances. Your income, expenditure and evidence of your financial position which would prove that without the financial support of your sponsor your essential living needs could not be met.
• On the evidence submitted in support of the application and on the balance of probability, I am not satisfied that you are dependent on your sponsor. I am therefore not satisfied that you are a family member in accordance with the Immigration (European Economic Area) Regulations 2016.
• I therefore refuse your EEA Family Permit application because I am not satisfied that you meet all the requirements of regulation 12 (see ECGs EUN2.23) of the Immigration (European Economic Area) Regulations 2016.

6. The Appellant in his written submissions, which formed his witness statement before the Judge, dated 13 August 2024, claimed that the Sponsor and her husband had been sending remittances to him from November 2017 when he claims his dependency arose. The Appellant claims that there were more than seven remittances slips, although he had not kept the same, and that he had provided 17 remittance receipts in the ECO’s bundle.
7. The point to note at this stage is that the requirement under the Regulations is for dependency upon the EEA national and/or his or her spouse. The Sponsor became an Italian citizen on 9 August 2018 and prior to this was a citizen of Pakistan. Payments made prior to this date will not have been made by an EU national, although they may be relevant if they show a pattern of payments being made that continued after the sponsor obtained EU citizenship.
8. The Appellant states that a total of 85 remittance receipts had been provided both in the name of the Sponsor and Nawaz Muhammad, the Sponsor’s husband and the Appellant’s brother-in-law. The Appellant refers to a bank account opened by him in April 2021 reflecting amounts that had been paid since the account was opened.
9. The Appellant claims the dependency arose as a result of an accident at work. His leg was injured due to the negligence of a driver at the General Rice Mills in Faisalabad which resulted in fractures to his legs. As a result, the Appellant’s employment was terminated on 31 July 2021 meaning he lost his only source of income.
10. The Appellant claims that his father works as a security guard but that his income is only enough to meet his own essential needs and that his sister, although she was settled abroad, provided assistance to him.
11. The Appellant claimed that his income and expenditure sheet provided in his bundle shows the only income he received are the remittances from his sister which are utilised for meeting the essential needs of himself and his family. The Appellant states he withdraws cash from his bank account as the shops operate on a cash basis.
12. The Appellant further claims that before the accident he was renting a flat near the mill where he worked but which he could not afford to keep on. His sister offered him the use of her own house as a residence. The house had been vacant following her move abroad and the property was vacant. The Appellant states he moved in in 2017 and pays all the bills from the money sent by his sister.
13. The Appellant provided evidence of the Sponsor exercising treaty rights, but that is not in issue and nor is it disputed that she had been granted re-settled status under the EUSS.
14. The Sponsor’s statement before the Judge refers to her status as an Italian national and to her being granted pre-settled status in the UK. At the hearing the Sponsor confirmed that she left Pakistan in 2008.
15. The Sponsor speaks of the Appellant being dependent upon her for his essential needs and claims that everything that was put forward was accepted by the ECO bar the issue of dependency. The Sponsor refers to payments having been made since November 2017, her brother’s accident and his circumstances, those of their father, and the purpose for which the monies are used. There is also reference to the Sponsor having a house in the village which was empty since she was living in the UK which she permitted her brother to live in.
16. The Sponsor speaks of a bond with her brother and the contact they maintain over the telephone and by other means and, again, repeats the fact that she provides for him and claims that without such support he would not be able to sustain his life on his own and would not survive.
17. It is not disputed that the Sponsor is making payments to the Appellant. It is well known that many living abroad send remittances to family members back home in Pakistan to enable them to be able to enjoy the benefit of the money that has been earned abroad.
18. There is, however, a material issue that is not addressed at all in the evidence provided to the Judge and which on its own is fatal to the application.
19. Directive 2004/38/EC/is more commonly referred to as the Free Movement Directive. It was recognised that it may be a barrier to an EU national exercising their right to free movement to live or work in another Member State, which may be hampered or even lost, if they have family members in their home state who would not be able to join them abroad. The Directive therefore provides guidance on who is entitled to exercise treaty rights to join or enter a host state with the EU national.
20. What the Directive did not provide for was those defined as other/dependant/extended family members. It did not, within the body of the document, grant this class of persons any right to enter or reside. It is settled law that whether a host state allows such persons, which includes the Appellant, to enter and reside in their territory is a matter for domestic law.
21. It must not be forgotten, however, that even if a host state created provisions which would enable an extended family member to join the EU national in the host state, the underlying foundation for that provision is based upon the free movement right of the EU national. The evidence provided, which was considered by the Judge, was that the Appellant had sustained an accident at work, could not meet his living costs as he had lost that source of income, and receive payments from his sister based in the UK to meet his needs. There is nothing in the evidence at all that ties the status of the brother in with the status of the Sponsor in terms of her exercise of treaty rights, and/or deals with the consequences of a refusal of his application.
22. That is a material fact because in the Secretary of State’s guidance relating to extended family members it is written “Extended family members are only entitled to a right to enter or reside where refusing them this right would deter the EEA national from exercising their treaty rights.” There was nothing to show that this was the case on the evidence.
23. The Judge was not satisfied the relevant nexus existed between Appellant and Sponsor as required under the 2016 regulations and Secretary of State’s guidance is made out. That is a sustainable finding.
24. The Judge also had concerns about the frequency and record of payments.
25. The Judge makes reference to the decision of the Upper Tribunal of Sohrab and Others v Secretary of State for the Home Department [2022] UKUT 00157 (incorrectly referred to in the determination as 00147). In that determination a Presidential panel considered a number of issues. The Panel found that there must not be a break in dependency or household membership from the country of origin to the UK, other than a de minimus interruption.
26. The Judge considered the remittance advices that had been provided, writing at [14 – 17]:
14. I accept that the sponsor has taken a decision to assist the appellant from 14 November 2017 following the accident. The financial assistance appears to have been interrupted between 10 June 2018 and 9 January 2019; appellant’s bundle pages 75 and 73 respectively.
15. The appellant relies upon remittance advices dated 2015 provided by Muhammad Nawaz, the sponsor’s spouse (“spouse”). As stated above the appellant claims that the dependency arose from July 2017. It is reasonable to conclude that remittances before this date are not relied upon to support the appeal. The reason for these remittances is unknown.
16. Other than the remittances dated 2015 most of the remittance advices in the respondent’s bundle are dated 2020 except for 3 remittance advices dated 8 June 2018, 25 November 2019 and 24 December 2019. A remittance advice dated 24 November 2020 is duplicated. The appellant opened a bank account on 1 April 2021; appellant’s bundle page 88.
17. Most of the remittance advices provided within the appellant’s bundle post-date the respondent’s decision though I recognise their probative value in matters appertaining to the date of decision. As stated above the remittances begin from 14 November 2017 though interrupted between 10 June 2018 and 9 January 2019.
27. The Sponsor was asked about the period from September to June 2018 to 9 January 2019 when there was no evidence of remittances being paid, in relation to which she claimed that when she travelled to Pakistan to visit her family she would take the money with her which she would hand to the Appellant. There was, however, no evidence before the Judge to support this claim. The finding of a break in payments and the claimed dependency is therefore sustainable on the basis of the evidence before the Judge.
28. As noted above, the Judge was not satisfied the relevant nexus existed between Appellant and Sponsor as required under the 2016 regulations and Secretary of State’s guidance. A challenge to the familial relationship between them or any feelings that they have for each other is not in issue, but a clear finding was made that it had not been established that material aspect of the Regulations had been proved.
29. As stated, there is nothing to prevent the Sponsor providing money for her brother. That is not the issue in this appeal. The issue before the Judge was whether the refusal of the application for a Family Permit was legally correct. The Judge examined the evidence made available but concluded that, even taking at its highest, there was not sufficient to demonstrate that the decision of the ECO was unlawful or irrational.
30. I have sat back and consider the Sponsor submissions, the determination, evidence available to the Judge, and had regard to the guidance provided by the Court of Appeal in Volpi v Volpi [2022] EWCA Civ 462 at [2], Ullah v Secretary of State for the Home Department [2024] EWAC Civ 201 at [26], and Hamilton v Barrow and Others [2024] EWCA Civ 888 at [30-31]. Having done so, I am not satisfied that the Appellant has established that the findings and ultimate decision of the Judge are rationally objectionable or outside the range of findings reasonably open to him on the evidence.

Notice of Decision

31. Appeal dismissed.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

12 May 2025