Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/03731/2012

THE IMMIGRATION ACTS

Heard at Bradford
Determination Promulgated
On 13th June 2013
On 21st June 2013

Before

UPPER TRIBUNAL JUDGE REEDS

Between

muhammad abubakkar bin khalid
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Rasheed (Sponsor in person)
For the Respondent: Ms R Petterson (Home Office Presenting Officer)

DETERMINATION AND REASONS

1. The Appellant is a national of Pakistan born on 12th September 1992. He made an application for entry clearance to the United Kingdom as a family visitor under paragraph 41 of the Immigration Rules HC 395 (as amended).
2. In that application form he set out that he wished to visit the United Kingdom and in particular, his sister and brother-in-law for a period of three weeks. In the form he set out his financial, social and family circumstances. He stated that since he left his education and from 1st October 2010 he worked with his father in a business entitled “KMC Government Contractors”. This is a business owned by his father in which his client is the Government who provides building contracts. The Appellant in his documentation confirms that he is not paid a salary but is paid from some money that his father obtains from the Government contracts. It is further stated in the form that the expenses for the visit in the United Kingdom will be covered by the Sponsor, Mr Rasheed from his employment as a taxi driver and that his father has 200,000 rupees available for the visit. He has provided copies of his father’s financial documentation including bank statements and evidence relating to his general financial position including tax documentation.
3. In a notice of an immigration decision dated 21st December 2011 the application was refused. In that refusal, the Entry Clearance Officer was satisfied that the Sponsor had demonstrated that he would be able to support the Appellant during his visit. The issue related to the Appellant’s personal circumstances and his intentions to return. The Entry Clearance Officer considered the evidence relating to his employment including the documentation provided but noted that it did not confirm that he was employed or that he had a job to return to. Furthermore, it was not clear where his father was therefore it was difficult to assess his overall financial position or confirm the Appellant’s personal circumstances. In addition, the Entry Clearance Officer stated that the Appellant appeared to have no income, assets or savings and had no one reliant on him. Thus he had failed to demonstrate that he had family, financial, and social ties to Pakistan to demonstrate that he would return to Pakistan at the conclusion of the visit. It was also noted that he had not shown any previous travel outside of Pakistan. Thus the application was refused.
4. The Appellant exercised his right to appeal and filed lengthy Grounds of Appeal explaining his financial, social and family circumstances in answer to the refusal decision.
5. The appeal came before the First-tier Tribunal (Judge Grant-Hutchinson) on 18th June 2012. In a determination promulgated on 25th June she dismissed the appeal. Permission to appeal that decision was made by the Appellant and initially permission was refused.
6. Upon renewal to the Upper Tribunal, Upper Tribunal Judge Chalkley on 15th November 2012 granted permission to appeal. The reasons are as follows:
“1. I believe that the First-tier Tribunal Judge Grant-Hutchinson has erred in here determination by not dealing with those parts of the Immigration Rules which the Entry Clearance Officer believed the Appellant had not met (paragraph 41(i) and 41(ii)) and instead dealing with parts of the Rule in respect of which the Entry Clearance Officer was satisfied. The Entry Clearance Officer was satisfied that the Sponsor would be able to support the Appellant during his trip.
2. As a result I believe that the Appellant has been deprived of a fair hearing of his appeal and subject to any observation that either party, would like to make on or before 10th January 2013, I am minded to remit this appeal under the provisions of paragraph 7.2 of the Senior President’s practice statement of the First-tier Tribunal for hearing afresh by a judge other than that of First-tier Tribunal Judge Grant-Hutchinson.”
Thus permission to appeal was granted.
7. In a determination (undated) Upper Tribunal Judge Chalkley decided the appeal without a hearing pursuant to Rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008. In that determination he noted that neither party had objected to the findings and proposed course of action that he has set out in the grant of permission of 15th November 2012. The judge stated as follows:-
“I am satisfied from the grounds that this error materially affected the presentation of the Appellant’s case, including the Sponsor’s ability to deal properly with the evidence. As a result, the Appellant was deprived of a fair hearing and I have decided, compatibly with the practice statements of February 2010, that the determination to be set aside and the appeal remitted to the First-tier Tribunal.”
Thus it appears that the determination was to be remitted to the First-tier Tribunal, in accordance with those directions. However, from a note on the file it appears that the direction was not sent out to the parties.
The appeal came before the Upper Tribunal on 13th June 2013. Rather than the appeal being remitted, it has been treated as if the appeal has been set aside to be remade by the Upper Tribunal on the basis that none of the findings of fact of the previous determination were to stand.
8. In those circumstances, I heard evidence from the Sponsor who appeared in person. The Respondent was represented by Ms Petterson (Home Office Presenting Officer). At the outset of the proceedings I ensured that the court interpreter and the Sponsor could understand each other through the medium of questions. Both confirmed they could understand each other and that the language was Urdu. The Sponsor confirmed that he had no further documentation to provide and further confirmed that the Appellant had sent further documentation along with the Grounds of Appeal to the Upper Tribunal but was referred to in the grounds. The Sponsor was cross-examined and there is a record of that evidence in the Record of Proceedings. I shall deal with that evidence in the course of my analysis of the appeal.
9. At the conclusion of the hearing I heard submissions from each of the parties. Ms Petterson relied upon the refusal letter. She confirmed that maintenance and accommodation was accepted as was the Sponsor’s circumstances but that the issue related to the Appellant’s circumstances. She submitted the case turned on the Appellant’s intention to return and whether he had any reasonable prospects. She referred the Tribunal to the bank account that had been produced noting that this is an account that fluctuated. In respect of the Sponsor’s evidence, she submitted that it was not entirely clear from his evidence whether the Appellant’s father had one account for business and family savings or whether there was one account that included all the monies. She further submitted that before the First-tier Tribunal, the Sponsor had said that the business appeared to slump at the end of 2011. In his evidence before this Tribunal, he did not say that either he misunderstood it or did not refer to it. In any event, at the date of decision the balance in the account does appear to be high but it is a fluctuating account. The Appellant does not receive a wage from the business and he has other children to support and therefore other calls on the family finance. He has not been in education since 2009 and does not appear to be recorded as an employee. Thus he has not demonstrated his personal circumstances in Pakistan. The Sponsor by way of reply stated that the Appellant’s father used the same account for personal and business expenditure and that he would spend money on projects and when it was reaching completion he would get payments in instalment which was why the balance in the account fluctuated. He said as to the Appellant’s intentions, he would guarantee that he would return and he had his family and his job to return to. He said that he was an important part of the business he is the eldest in the family and takes responsibility for them. He confirmed that the Appellant had no problems with any person within Pakistan, either from members of his family any other person from the authorities and that this was a genuine family visitor.
10. I reserved my determination.
11. As set out in the submissions of Ms Petterson, the issue of maintenance and accommodation was not a live issue before the Tribunal. The Sponsor had provided documentation concerning his financial circumstances and had demonstrated that he was able to maintain and accommodate the Appellant for the length of the visit which is said to be a short family visit of three weeks. The Appellant is to visit his sister and his brother-in-law, the Sponsor.
12. The issue relates to the Appellant’s personal circumstances and his intention to return. I have considered with care the evidence before me concerning the Appellant’s background and those circumstances. It is his case that he is self-employed but in effect works for, and with his father, who has a business as a building contractor relying upon Government contracts. There are a number of documents demonstrating that the Appellant’s father, Khalid Mehmood who works as a self-employed business contractor and specifically in the field of Government contracting. He has produced a national tax company certificate setting out his name and his type of employment, he has produced annual tax returns setting out the Government contracts. In addition there is a contract of renewal certificate issued by the chief engineer (B15 and B19 and 20). I have also been shown a statutory declaration from the Appellant’s father confirming the Appellant’s role in the business. It sets out his own circumstances namely that he is living with his family in Pakistan and that he has adequate funds available. There is a further statement at B2 confirming that he supports his son but does so through the business and that he himself has been a Government contractor since 2005. In addition he has produced a copy of his Allied Bank statement and at the date of decision there was over 400,000 rupees in that account.
13. I have considered that documentation in the light of the matters set out in the application form and the evidence of the Sponsor. Having done so I am satisfied that the Sponsor has told the truth to the Tribunal and that his evidence is supportive of that of the Appellant. In his evidence he confirmed the Appellant’s circumstances and that of the Appellant’s father. It appears that there is telephone contact between them and he was familiar with the type of Government contracts that the Appellant works upon with his father. He gave an example of developing dam sites and building small dams. In his evidence he said that their financial position was strong and that he would spend money on projects and when they were completed he would get payment by way of instalments. He explained that the bank account was a joint family account and business money came into that account in addition to their personal money. He confirmed that from that money the Appellant had his expenses paid. He said they worked on the basis of being a joint family as the Appellant had not been married yet and he was the eldest, all the money went into the family pot.
14. I am satisfied on the balance of probabilities that the evidence given by the Sponsor orally is consistent with the evidence of the Appellant and that in the documentation. Whilst the documentation does support the Appellant’s father being in business, I am satisfied that the Appellant himself works within that business. The Sponsor was cross-examined about the Appellant’s earlier life and was able to say in cross-examination the history of when he gave up his education, that is, the date that he did his matriculation which was consistent with the age that the Appellant claimed to have finished his education and had gone straight to work with his father. I do not find that there is anything that is incredible about a son working with his father, particularly in the lucrative field of Government contracting in which his father works. Thus I am satisfied on the balance of probabilities that he has demonstrated his personal circumstances and that he has employment with his father in Pakistan which appears to be a good business to be in.
15. The refusal letter noted that there was no evidence as to where the Appellant’s father was. It is clear from the documentation and from the evidence that I have heard, that the Appellant’s father resides in Pakistan. That evidence is supported by his own statutory declaration and I am satisfied on the balance of probabilities that his father lives in Pakistan, along with his wife and his other children. They live by way of a joint family system and I accept the evidence of the Sponsor that that is how the financial circumstances of the family work.
16. I have further considered the financial circumstances of the family as a whole. A number of documents were produced alongside the grounds to the Upper Tribunal. They included documents issued by the Federal Board of Revenue setting out business assets, including value of the business, value of vehicles and total assets. The business was said to be worth 30,00,000 rupees and the value of vehicles to be 1,232,000. He has also provided copies of his tax accounts. The bank account that has been produced is in the name of the Appellant’s father. Whilst there appear to be some uncertainty as to whether or not this was a business account or a personal account, it was clarified in my view by the Sponsor’s evidence that this was a business and personal account. I do not find that there is anything that is incredible about that. There are a number of deposits and withdrawals in the account. It is right as Ms Petterson has pointed out that this is account that does fluctuate from large amounts to small amounts. Again I do not find that that is indicative of this family living a poor existence. The evidence from the Sponsor, which seems perfectly reasonable, is that the fluctuations in the bank account are routine practice. As the Appellant has stated in his grounds, at the end of the year the Government postponed contracts waiting approval for the next budget and once they start again his father receives the contracts. That is the nature of self-employed. The balance at the date of decision was 409,994 rupees which demonstrates that he would be able to comfortably afford the cost of travel for the Appellant.
17. Having considered the evidence as a whole, I am satisfied that the Appellant has demonstrated that he has sufficiently strong financial, family and social ties to Pakistan. The Sponsor gave clear evidence which I accept, that this was a genuine family visit and that it was intended to be only for three weeks. He was required to return back to Pakistan so that he could work with his father in the contracting business. The Sponsor also stated clearly that the Appellant had no problems in Pakistan that would mean that he could not return there. He was on good terms with his friends, family and neighbours and had no problems with the authorities. In those circumstances, I am satisfied on the balance of probabilities that he has demonstrated those ties to Pakistan and has demonstrated that he intends to return at the conclusion of the visit.
18. For those reasons, I find that he has satisfied the requirements of paragraph 41 of HC 395. The appeal is allowed.
Decision
The First Tier Tribunal made an error of law. The decision is set aside and re-made as follows:
The appeal is allowed.

Signed Date:20/6/2013

Upper Tribunal Judge Reeds