Upper Tribunal (Immigration and asylum chamber), 2020-06-17, EA/03768/2019

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: EA/03768/2019 (P)

THE IMMIGRATION ACTS

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

MOHAMMED AWAIS

(ANONYMITY ORDER NOT MADE)

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

DECISION AND REASONS

Introduction

1. The appellant is a citizen of Pakistan born in December 1983. He applied for a residence card as an extended family member of an EEA national, namely his brother, in August 2017. His application was refused on 19^th December 2017, it was reconsidered by the respondent, but refused again on 15^th July 2019. His appeal against the decision to refuse to grant him a residence card was dismissed by First-tier Tribunal Judge Rea in a determination promulgated on the 1^st November 2019.

2. Permission to appeal was granted by First-tier Tribunal Judge JK Swaney on all grounds on 5^th March 2020 on the basis that it was arguable that the First-tier Judge had erred in law in requiring that the appellant continue to be a member of the household which was arguably not a requirement of Regulation 8(2)(b)(ii) of the Immigration (EEA) Regulations 2016, and arguably was not consistent with Dauhoo (EEA Regulations – reg 8(2)) Mauritius[2012] UKUT 79 (IAC).

3. In light of the need to take precautions against the spread of COVID-19 and with regard to the overriding object set out in the Upper Tribunal Procedure Rules to decide matters fairly and justly directions were sent out by the Vice President of the Upper Tribunal by email on 7^th April 2020 seeking written submissions on the assertion of an error of law from both parties with a view to determining that issue on the papers, and giving an opportunity for any party who felt that a hearing was necessary in the interests of justice to make submissions on that issue too. Submissions were received from the appellant and respondent, but no reply (as permitted by the directions) was received from the appellant to the respondent’s submissions.

4. The matter came before me to determine whether it is in the interests of justice to decide this matter without a hearing and if so to determine whether the First-tier Tribunal has erred in law.

Submissions – Error of Law

5. The error of law submissions from Western Solicitors for the appellant rely upon the grounds of appeal, and the summary of the error as set out in the grant of permission to appeal. In brief it is argued that it is clear from both the Regulation 8(2) of the Immigration (EEA) Regulations 2016 and Dauhoo that the possibilities to qualify as an extended family member are via showing that either you were previously a member of the household or dependent on the EEA national and either that you are currently a member of the household or dependent. It is argued that the First-tier Tribunal erred in law because the First-tier Judge found at paragraphs 18 and 19 that the appellant is currently a member of his brother’s household and financially dependent on him, and also that he was part of his brother’s household in the past up until 1996, and that thus, in accordance with Dauhoo, this qualifies him under Regulation 8(2) of the EEA Regulations.

6. It is argued that there is a factual error or an insufficiently reasoned finding at paragraph 20 which states that the appellant was financially dependent on his parents and not exclusively on his brother in the period 1996 to 2004, when his brother went to work in Spain, as it is clear from the evidence that his brother was sending the family funds to support them. Further the evidence of the appellant’s sister which supports this continuing financial dependency was not considered. It is also argued that there was procedural unfairness as the sponsor was not given an opportunity to address any specific concerns of the judge over financial matters and this was not properly explored in the hearing.

7. In any case, it is argued, there is no requirement under the Regulations as outlined in Dauhoo that the appellant has to be continuously part of the household, and it is clear that past membership of a household and currently membership suffices to make the appellant an extended family member. This is particularly the case given what is said in Aladeselu and Others (2006 Regs – Reg 8) Nigeria[2011] UKUT 253 (IAC) that no restrictions should be applied to the Regulations other than those that appear in the ordinary language.

8. It is submitted that the appeal should be remade and allowed unless the Upper Tribunal requires further evidence, in which case an oral hearing would be needed.

9. The Secretary of State, through submissions from Mr C Bates dated 21^st April 2020, accepts that the First-tier Tribunal found that potentially the requirements of the Regulations at 8(2)(b) and Dauhoo were met due to the appellant having satisfied the test to be currently dependent and a member of the EEA national’s household, and having been a member of the same household in Pakistan prior to 1996, albeit that the household was headed by their parents.

10. The First-tier Tribunal found however that there was limited evidence of prior dependency and had to consider whether the gap of 18 years was significant. The fact that the sponsor was not an EEA national in 1996 (because he only became an EEA national after he lived in Spain in or around 2014) meant that the Regulations were not met, see Moneke (EEA – OFMs) Nigeria[2011] UKUT 341 (IAC), which finds that the EEA national must be such a national at the time of the past household membership. There can be no material error of law therefore with respect to the issue of the past shared household as the sponsor was not an EEA national in 1996.

11. It is argued that the First-tier Tribunal followed the guidance in Reyes (EEA Reg: dependency)...