Upper Tribunal (Immigration and asylum chamber), 2020-07-27, EA/08267/2016
| Jurisdiction | UK Non-devolved |
| Date | 27 July 2020 |
| Published date | 10 August 2020 |
| Hearing Date | 13 July 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | EA/08267/2016 |
Appeal Number: EA/08267/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/08267/2016 (V)
THE IMMIGRATION ACTS
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Heard at Field House via Skype for Business |
Decision & Reasons Promulgated |
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On 13 July 2020 |
On 27 July 2020 |
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Before
UPPER TRIBUNAL JUDGE O’CALLAGHAN
Between
MUHAMMAD QASIM GULRAIZ
(ANONYMITY DIRECTION NOT MADE)
Appellant
And
ENTRY CLEARANCE OFFICER, UKVS SHEFFIELD
Respondent
DECISION AND REASONS
Representation:
For the Appellant: Mr. A Badar, Counsel, instructed by Ashton Rose Law Solicitors
For the Respondent: Mr. D Clarke, Senior Presenting Officer
Introduction
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This is an appeal against the decision of Judge of the First-tier Tribunal Stedman (‘the Judge’) sent to the parties on 16 October 2019 by which the appellant’s appeal against the decision of the respondent to refuse to grant him an EEA Family Permit was refused. The respondent’s decision is now of some age, having been issued on 21 June 2016.
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Upper Tribunal Judge Blum granted the appellant permission to appeal on all grounds.
Remote hearing
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The hearing before me was a Skype for Business video conference hearing during the Covid-19 pandemic. I was present in a hearing room at Field House. The hearing room and the building were open to the public. The hearing and its start time were listed in the cause list. I was addressed by the representatives in exactly the same way as if we were together in the hearing room. I am satisfied: that this constituted a hearing in open court; that the open justice principle has been secured; that no party has been prejudiced; and that, insofar as there has been any restriction on a right or interest, it is justified as necessary and proportionate.
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The parties agreed that all relevant documents were before the Tribunal. The video and audio link to Mr. Badar was connected continuously throughout the hearing. Mr. Clarke only enjoyed access to the hearing via an audio link but was content to proceed with the hearing. Both representatives confirmed at the conclusion of the hearing that it had been completed fairly and they were content with the process.
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The appellant did not attend the hearing. The sponsor, Mrs. Nasir, attended remotely.
Anonymity
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The Judge did not issue an anonymity direction and no request was made by either party for such direction to be issued.
Background
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The appellant is a national of Pakistan who was born in 1989 and is now aged 31. He applied for entry clearance as an extended family member under the Immigration (European Economic Area) Regulations 2006 seeking to join his sponsor, his sister-in-law, in this country. His sister-in-law is a Romanian national who resides with her husband, the appellant’s brother, in this country.
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The respondent refused the application for an EEA Family Permit on two grounds: (i) the appellant had failed to provide sufficient evidence that he is the brother of the sponsor’s wife; and (ii) he failed to establish that he was wholly or mainly financially dependent on the sponsor. Upon providing DNA evidence the first issue is no longer pursued by the respondent.
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The appellant’s appeal first came before Judge of the First-tier Tribunal Davidson, who dismissed the appeal by means of a decision dated 12 February 2019. The appellant was granted permission to appeal to the Tribunal and the First-tier Tribunal’s decision was set aside, with no findings of fact preserved, consequent to a decision of UTJ Pickup dated 8 May 2019.
Hearing Before the FtT
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The appeal came before the Judge sitting at Hatton Cross on 30 September 2019. The sponsor attended with her husband and both gave oral evidence.
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The Judge raised concerns with the witnesses, and counsel for the appellant, as to issues he perceived as arising from the evidence before him. The new issues were not identified within the respondent’s decision letter. The Judge concluded that the family circumstances he was presented with were a façade and false. He further concluded as to the purported dependency, at [24]:
24. The refusal of a family permit in this case is justified on the evidence because, as I have analyzed it, I am unable to find that the appellant is dependent on the sponsor. There is wholly insufficient evidence of that. There is some evidence that remittances have been sent by the sponsor to the appellant and I accept that, but these must be viewed in light of my findings, and thus take on a completely different meaning – namely the sponsor simply seeking to enhance the appellant’s standard of living. The evidence that the appellant was in any need of an income was lacking. There was no clear reason why he could not support himself and indeed whether he was deriving any income for his own use from his father’s land in [addition] to free accommodation.
Grounds of Appeal
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The appellant initially sought permission to appeal to this Tribunal from the First-tier Tribunal by means of grounds of appeal authored by Mr. Badar, dated 23 October 2019. Judge of the First-tier Tribunal Osborne refused the application by way of a decision dated 24 February 2020. Detailed grounds of appeal were subsequently drafted by the appellant’s solicitors, dated 5 March 2020, and filed with this Tribunal. The identification of the two separate grounds of appeal is relevant for reasons addressed below.
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The grounds advanced by the March 2020 document are discursive in nature and read as submissions rather than as carefully calibrated grounds of challenge. However, the four grounds advanced are interrelated, and primarily submit that the First-tier Tribunal went beyond the scope of the respondent’s decision in making adverse findings of fact. Additionally, it is asserted that the Judge applied the wrong standard of proof when considering the issue of dependency.
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In granting permission to appeal UTJ Blum reasoned, inter alia:
‘The grounds variously contend that the judge was not entitled to reach his conclusions and that he acted in a procedurally unfair manner. It is arguable that the judge developed his own theory of the case, one that was not advanced by the respondent and one that had not been identified in an earlier decision that had been overturned by the Upper Tribunal. Although it appears that the judge did make his concerns known to the parties, it is nevertheless arguable that the judge’s approach was procedurally unfair, that he went beyond the scope of the case advanced by the respondent, and that he reached conclusions not supported by the evidence.’
Decision on Error of Law
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Prior to the hearing Mr. Clarke filed and served a copy of a post-hearing note prepared by counsel who represented the respondent at the hearing, Mr. Graham, in relation to the hearing before the Judge. The note is dated 30 September 2019, the day of the hearing. Mr. Clark filed and served a judgment of the Court of Appeal in Lim v. Entry Clearance Officer, Manila [2015] EWCA Civ 1383; [2016] Imm. A.R. 421. He further relied upon two decisions of this Tribunal: JK (Conduct of hearing) Cote d’Ivoire [2004] UKAIT 00061 and XS (Kosovo – Adjudicator's conduct – psychiatric report) Serbia and Montenegro [2005] UKIAT 00093.
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At the outset of the hearing Mr. Clarke, with his usual candour, conceded on behalf of the respondent that the Judge had materially erred in law by failing to lawfully consider medical evidence filed on behalf of the appellant when reaching the following conclusions, at [10], [24]:
‘10. … The appellant is a fit and healthy 30-year old man and there was no reason why, being physically and mentally able, he could not simply get himself a job in Pakistan.
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24. … There was no clear reason why he could not support himself and indeed whether he was deriving any income for his own use from his father’s land in [addition] to free income.’
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Though the respondent’s position is that the medical evidence is insubstantial, Mr. Clarke accepted there was a material error in the clear failure by the Judge to expressly consider it when making such findings of fact that subsequently infected the dependency assessment.
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In making the concession, Mr. Clarke expressly acknowledged para. 10 of the October 2019 grounds of appeal:
‘10. … The applicant’s statement at paragraph 5 also sets out how he is unwell and is unable to work. It is also submitted that the applicant’s medical treatment, which the sponsor has paid for, was part of the applicant’s claim and evidence, which clearly does not materialise in the judgment.’
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This ground of appeal was not advanced by means of the March 2020 grounds and so permission was not granted upon it. As Mr. Clarke observed it is an ‘obvious’ point. I note that it is reasonable to expect professional representatives to set out appeal grounds with an appropriate degree of particularity and legibility and a Tribunal should be hesitant in forensically examining the decision to identify grounds beyond those advanced by a professional representative. This is particularly so when a...
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