Upper Tribunal (Immigration and asylum chamber), 2015-11-09, OA/08854/2014 & Ors.
| Jurisdiction | UK Non-devolved |
| Date | 09 November 2015 |
| Published date | 03 June 2016 |
| Hearing Date | 20 August 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | OA/08854/2014 & Ors. |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/08854/2014
OA/05862/2014
OA/05864/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision Promulgated |
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On 20 August 2015 |
On 9 November 2015 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN
Between
Mrs Zubaida BIBI
Mr Jahangir RAMAY
Mr Muhammad Yasin RAMAY
(NO ANONYMITY DIRECTION MADE)
Appellants
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr P. Saini, counsel instructed by Mitchell & Co solicitors
For the Respondent: Mr S. Whitwell, Senior Home Office Presenting Officer
DECISION & REASONS
1. The hearing of this appeal first came before the Upper Tribunal for hearing on 22 July 2015. In a decision of the same date the Upper Tribunal found that First Tier Tribunal Judge Andonian had erred materially in law and adjourned the appeal for a resumed hearing on 20 August 2015. The error of law decision and reasons are appended to this decision.
Hearing
2. At the resumed hearing, Mr Saini produced a typed transcript of his handwritten notes of the hearing before the First Tier Tribunal, his handwritten notes having been sent to the Upper Tribunal in advance. The parties agreed that the finding of fact by the First Tier Tribunal that the Appellants were extended family members of an EEA national was preserved and the only question that arose was one of dependency cf Dauhoo for the 4 possibilities. Mr Saini handed up a money transfer receipt dated 12 March 2015. Mr Whitwell handed in a printout of SS postcodes for Southend on Sea which was potentially relevant to the landlord’s address on the tenancy agreement of SS17 0AN. Mr Saini was given time to take instructions on this document.
3. The Sponsor, Mr Muhammad Tayyab Ramay, was called to give evidence and confirmed his statement of 26 February 2015. He was asked about his landlord’s postcode on his tenancy agreement and stated that he had never been to his landlord’s address or had cause to write to him. He said that his property was rented indirectly through an agent, Lake Star property on Romford Road and that he met the landlord after he and his wife rented the property. The landlord lives outside London and owns 16 properties. The Sponsor did not know the landlord’s address. He stated that his parents and brother’s names were on the tenancy agreement to show they had permission to live there.
4. In respect of his father, the Sponsor confirmed that he has had diabetes for 15 years. In 2013, his father’s toe was removed due to gangrene. His father receives £35 a month in the form of a pension as he was a teacher. His mother is a housewife and has never worked. His brother is making efforts to get a job but has not got one. He completed a Degree in Banking & Commerce and wants to do a Masters in Commerce. In addition to the money transfer receipt dated 12 March 2015, the Sponsor said that he had sent three or four money transfers this year including that one, for differing sums of money, altogether for £3-4000. He sent the money to his brother because his father was ill.
5. In cross- examination, the Sponsor was asked what he and his wife would do if the appeal is unsuccessful and he stated that he did not know but he would possibly leave the United Kingdom. Last time his father was ill he travelled to see him even though his work did not give him holiday. He confirmed that his father owned his own property. In respect of his living expenses he said that the Doctor and medicine are not free; that his father calls him and he sends money for this. He said that on a monthly basis his parents’ and brother’s living expenses, including his brother’s university fees were £300-£400 excluding medical fees. His father gave up work three and a half years ago around the time that he came to the United Kingdom. Prior to that his father was earning 30,000 Pakistani rupees equivalent to approximately £300 per month and that he worked as a private tutor as well in the evenings at a private academy. The Sponsor confirmed that his father has a bank account but he does not have savings as he spent them [10,000 Pakistani rupees] on his sister’s wedding. He said that his sister is not working and her husband is in a low paid job and they are unable to support his parents.
6. The Sponsor’s wife, Aneta Ramay was then called to give evidence. She confirmed her statement and that she resided with the Sponsor at 6 Bronte Close. They married on 20 March 2012. When cross-examined by Mr Whitwell she was asked whether she knew anything about her father in law’s financial circumstances in Pakistan and she said that he is retired; he was a teacher and has been retired for 3 and a half years. He receives a pension of about £35 a month. She said that her mother-in-law does not work and is not educated. She said that they do not have enough money and depend on her and her husband as £35 a month is not enough to survive. In response to a question from the Tribunal the witness stated that she supported her family in Poland as her mother is disabled. She said that would go to Poland every 6 months and would take £400 with her when she went.
7. Mr Whitwell then made submissions. He stated that the test for dependency was set out in Lim. He submitted that the question that needed to be decided was one of fact and that was whether the Appellants are dependent on the Sponsor and his wife in the United Kingdom. He said that he had two observations to make: (i) despite the fact that quite detailed financial circumstances of the Sponsor and his wife had been provided in terms of their bank accounts and P60’s, there was very limited evidence in relation to Pakistan and this was essentially limited to the oral evidence; (ii) in the visa application form at question 66 when asked how much money was spent, the response was recorded as 7000 Pakistan rupees. Based on the evidence in respect of the money transfer receipts however and given that 150 Pakistan rupees is equivalent to £1, £300 = 45,000 Pakistani rupees. He submitted that the Sponsor’s evidence was more stark than the position as set out in the visa application form. He further submitted that, even on the evidence of the Sponsor his family were struggling financially before his father stopped working as he had taken a second job. He acknowledged that if the Appellants can show that their essential living needs are met by receipt of money sent by the Sponsor and his wife from the United Kingdom their appeal should be allowed.
8. Mr Saini submitted on behalf of the Appellants that essential living costs would not include University fees or medical expenses. He submitted that the visa application form had been completed by a non-professional or lay person who had not appreciated that it was important to give accurate evidence about costs and that if there was a discrepancy or fluctuation this was not due to fabrication. There was no inconsistency apart from this. He submitted that the question was one of pure fact: was there dependency or not. In respect of Lim he submitted that even if he was wrong about the figure of living costs, given the Sponsor’s father’s age and the fact that he is diabetic and unable to work, his mother has never worked and his brother has applied for work but cannot get work and is doing a Masters degree. He submitted that they fall within dependency by choice even if not dependency by necessity. He submitted that it is necessity as the Sponsor’s father requires medication. The amount that they need a month exceeds £35 as their living costs are £46 and this is sufficient for dependent standards and it is necessary for the Sponsor and his wife to supplement his father’s pension income. He submitted that on the pure factual question dependency is made out. In respect of the caselaw, Mr Saini relied on Dauhoo and submitted that the Sponsor’s brother is 8(1) or (a) seeking to join Sponsor here and that this only the first limb that needs to be met in terms of Dauhoo as it is an entry clearance application. He accepted that the “same household” requirement was not met as the Sponsor was not married to an EEA national at that time. In response to a question from the Upper Tribunal as to when dependency began, he stated that the marriage between the Sponsor and his wife took place on 20 March 2012 and so the possibility first arose at that date and that money was first sent on 3 April 2012 according to the itemized list dated February 2014. He also relied on the decision in Moneke at headnotes 1, 3 and 5.
The Relevant Law
9. Article 3(2)(a) of Directive 2004/38/EC and Regulation 8(2)(a) of the Immigration (EEA) Regulations 2006 make provision for the rights of movement and residence of other or extended family members of an EEA national.
10. The headnote in Moneke (EEA – OFMs) Nigeria [2011] UKUT 341 (IAC) provides:
“i. A person claiming to be an OFM under Article 3(2) of Directive 2004/38/EC may either be a dependant or a member of the household of the EEA national: they are alternative ways of qualifying as an OFM.
ii...
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