Tanveer Hasan Tipu v Secretary of State for the Home Department

Hearing date: 27 February 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.

The Appellant is a citizen of Bangladesh born on 1 March 1986. He arrived in the UK in March 2010 with a Tier 4 student visa which he extended until September 2016. At this point he overstayed his leave to remain in the UK. The present case concerns an application for an EEA residence card which he made on 27 November 2019 as an extended family member of his cousin Mr Md Salim Ahmed. This was refused in a letter from the Home Office dated 30 November 2020. An appeal against this decision was dismissed by First-tier Tribunal Judge Gaskell after a hearing on 23 November 2022.

The Appellant was granted permission to appeal to the Upper Tribunal. An error of law hearing took place before UTJ Lindsley, who in a decision issued on 23 June 2023 found that the FTT decision had indeed involved the making of an error on a point of law. She set aside the FTT decision and adjourned the remaking of the appeal. She held the substantive hearing on 12 September 2023 and by a reserved decision issued on 1 October 2023 dismissed Mr Tipu's appeal from the Home Secretary's decision. It was not suggested by either party before us that we should examine the FTT decision or the error of law found by Judge Lindsley at the previous hearing.

There is no challenge to the findings of primary fact made by the judge. What follows is a summary of what appear to me to be the most significant evidence and findings.

The evidence of the Appellant and his sponsor as set out by the judge

Mr Tipu is the first cousin of his sponsor Mr Salim Ahmed, and was supported by his sponsor whilst living in Bangladesh prior to coming to the UK: this is evidenced by money transfer documentation from Western Union. The sponsor chose to do this as Mr Tipu was a “good and dedicated student” and his parents could not afford to support him continuing in education as they were very poor. Mr Salim Ahmed sent money from Portugal, where he was working. The money paid for education related costs which included the school fees, uniforms, books, stationery, travel costs, and tutoring fees. The Appellant continued his education, completing his secondary education and starting university in Bangladesh. It is his understanding that Mr Salim Ahmed became a Portuguese citizen in 2000 (thereby becoming a dual national of Bangladesh and Portugal).

After the Appellant started university in Bangladesh it was an option to travel abroad. He applied firstly for a working holiday maker visa to come to the UK in 2008 but this was refused. His sponsor visited the UK in 2009 and suggested that he should get a student visa for the UK, and said that he (the sponsor) intended to relocate there. The Appellant gave the address of his uncle, Mr Fuhad Ahmed, as the address for this application as Mr Fuhad Ahmed lived in the UK and it was agreed between them that he could do this: Mr Salim Ahmed was at that stage still in Portugal. The Appellant then applied to come to the UK as a student, and as already noted his entry clearance was granted in 2010.

The Appellant's evidence was that when he came to the UK for the first year Mr Salim Ahmed still sent him money for his education and other expenses such as travel, books, clothing and some food, the sums sent being about £250 every two to three months. Mr Fuhad Ahmed provided accommodation, paid the house bills and paid for some food.

The Appellant's evidence was that Mr Salim Ahmed also paid for his studies at the four colleges (London College of Accountancy, London North College, IMO Bedford College and Universal College) which he attended between 2010 and 2014. He accepted that he did not obtain any qualifications from these studies as the colleges all had their licences revoked and in the end he gave up trying to study. The Appellant gave no explanation for what he has done in the UK since 2014.

After Mr Salim Ahmed moved to the UK in March 2011 the Appellant lived with him. He has covered all of the Appellant's living expenses since 2011, and gave him £50 a week as pocket money throughout this period. The college fees were about £2000 per annum. In short, he has covered much of the Appellant's expenses since Mr Tipu was 14 years old.

The judge accepted that the Appellant had shown on the balance of probabilities that he lived with Mr Salim Ahmed from the time of the latter's entry to the UK in March 2011. She also found that the evidence of the witnesses called by the Appellant was credible “on the core aspects of the place of residence of the Appellant and the provision of financial support to the Appellant by Mr Salim Ahmed”. She noted, however, that there was no evidence of any significance called on what the Appellant had actually been doing since he stopped studying in 2014 and indeed “during significant periods of time from 2011–2014 when his colleges were closed down by way of withdrawal of their licences.” The evidence was that he had obtained no qualifications in the UK.

Conclusions reached by the judge

The judge held as follows:-

“27. As per Sohrab [ Sohrab (continued household membership) Pakistan [2022] UKUT 00157 (IAC)] a person seeking recognition as an “extended family member” (“EFM”) under regulation 8(2) of the Immigration (European Economic Area) Regulations 2016 must establish a relevant connection with their EEA sponsor in the country of origin, and in the UK. The relevant connection may be through being a dependent of the EEA national sponsor, or through being a member of the EEA national's household. The relevant connection may change between the country of origin and the UK, as held in Dauhoo (EEA Regulations — reg 8(2)) [2012] UKUT 79 (IAC). There must not be a break in dependence or household membership from the country of origin to the UK, other than a de minimis interruption. As per Jia v Migrationsverket [2007] CJEU Case C-1/05 the test for dependency is whether the sponsor has and does provide material support for the appellant's essential living needs. The Court of Appeal in Singh [ Singh v Secretary of State for the Home Department [2022] EWCA Civ 1054 [2022] Imm AR 1630] did not determine on the facts of that case whether education was an essential need, as that issue had not been raised before the First-Tier Tribunal, but found that it was in principle capable of being an essential need. It was indicated that it would need a wide ranging examination to determine whether education amounted to an essential living need in any particular case.

…

29. My first task is to consider whether the appellant was a dependent on the sponsor prior to entering the UK and for the first year whilst he lived in this country. It is not argued that he was part of the sponsor's household during this time. I find, based on credible witness evidence before me and some documentary receipts from Western Union, that from the year 2000 to 2011 the sponsor, Mr Salim Ahmed provided funds to the appellant which were to enable him to continue in education. I find that the appellant's family were very poor and otherwise the appellant would have had to leave school at the age of 14 years and start working on the land like his parents. Whilst Mr Mazunder [counsel then instructed by the Appellant] tried to persuade me that Mr Salim Ahmed had paid for primary education I do not find that this was the case. I find that it was at the point of the commencement of his secondary education that he paid for the appellant to continue, as this was point where he might otherwise have been permitted to stop his education. Mr Salim Ahmed wanted this bright child to have a better future, and so, I find, took responsibility for funding his education at private secondary schools with all the costs that entailed which included school fees, cost of materials such as books and paper, travel costs and uniform costs. He did not need to pay for accommodation costs or for food when the appellant lived with his parents in Bangladesh as they could provide these things. I find that when the appellant moved to the UK between March 2010 and March 2011 the sponsor also did not need to pay accommodation costs and bills as these were paid by Mr Fuhad Ahmed, the appellant's uncle. I find that the sponsor only paid a minimal amount for the appellant's food during this time (through occasional shopping out of support funds sent), and [the] majority was paid for by Mr Fuhad Ahmad.

30. The question arises as to whether this financial provision for education for the appellant by Mr Salim Ahmed was for an essential living need. I was not given any considered help by the representatives on this issue. No reference was made to any framework in which I should consider whether the education provided was an essential living need. I note that Article 28 of the Convention on the Rights of the Child recognises a child's right to education. Article 26 of the Universal Declaration of Human Rights gives a right to education which should be free in the elementary and fundamental stages. Article 13 of The International Covenant on Economic, Social and Cultural Rights recognises a right to free primary education. Article 2 of Protocol...