Upper Tribunal (Immigration and asylum chamber), 2021-01-21, EA/04624/2019
| Jurisdiction | UK Non-devolved |
| Date | 21 January 2021 |
| Published date | 04 February 2021 |
| Hearing Date | 23 November 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | EA/04624/2019 |
Appeal Number: EA/04624/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/04624/2019 (v)
THE IMMIGRATION ACTS
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Heard at Field House via Skype |
Decision & Reasons Promulgated |
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On 23rd November 2020 |
On 21st January 2021 |
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Before
UPPER TRIBUNAL JUDGE RIMINGTON
Between
Mr ndue gjoni
(anonymity direction NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr P Collins, Counsel, Zoi Bilderberg Law Practice
For the Respondent: Ms Julie Isherwood, Home Office Presenting Officer
DECISION AND REASONS
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The appellant appeals, with permission, against the decision of the First-tier Tribunal dated 14th January 2020 dismissing the appellant’s appeal against the Secretary of State’s decision. The appellant’s application for a residence card as an extended family member based on his EEA rights under Regulation 8 of the Immigration (European Economic Area) Regulations 2016 was refused by the Secretary of State on 20th August 2019.
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The appellant appealed on the following grounds:-
Ground 1
First-tier Tribunal Judge Clark failed to direct her mind and apply the burden and standard of proof relevant to the EEA appeal.
At paragraph 21 of the decision the judge stated, “I do not find the appellant has substantiated his claim on a balance of probabilities and I dismiss it.”
It was contended that this paragraph was merely a closing paragraph and it is normally expected that the judge should set out at the beginning of the decision that he/she had expressly directed his or her mind to the burden and standard of proof before going on to consider the facts in conjunction with the applicable law and this was a fundamental error. It was further contended that the judge had materially erred in law in failing to set out the legal test in terms of Regulation 8 of the 2016 Regulations and it is unclear which parts of Regulation 8 Judge Clarke referred her mind to.
Ground 2
Judge Clarke had criticised the fact that the date of the tenancy agreement (15th November 2015) had been written on the tenancy agreement by hand by the signature of the property manager. It was entirely in the hands of the property manager as to what was written on the document. It was contended that the judge’s criticism of the evidence was unjustified and amounted to a material error of law.
Ground 3
At paragraph 8 of the decision the judge stated that the evidence of the payment of rent was contradictory in that the bank statements of the sponsor, the appellant’s sister-in-law, recorded rent payments whereas the appellant’s brother stated in evidence that he paid the rent. It was contended that the judge’s criticism was without justification and failed to understand the evidence given at the hearing that the payment of the rent was paid by the sponsor and by the appellant’s brother. It was contended that the payment of the rent could have been made in cash as per the appellant’s brother and also by bank transfer as by the sponsor and the judge was wrong to fail to address that payments for rent in cash could have been and were paid as well as by bank transfer.
Ground 4
The judge stated at paragraph 11 that what was missing was documentary evidence to place the appellant at the address given the gaps in rent being paid.
It was contended, however that the judge failed to address her mind to the fact that the person had no status in the United Kingdom and would have no documentary evidence to show him at that address. For the judge to make a finding that there was a requirement of documentary evidence of the appellant living at the address has placed too high an evidential burden on the Appellant and unrealistic burden.
Ground 5
The judge stated at paragraph 13,
“I find it implausible that a landlord would accept another adult to live in the property and not be named as a tenant and there is no letter from the landlord to confirm such permission and the explanation is implausible because the purpose of the tenancy agreement amongst other things is for the landlord to lawfully evict the adults residing in the property.”
However, the judge failed to understand basic immigration law that the appellant had no status in order to hold a tenancy agreement and was forbidden in law to do so under Section 21(1) and (2) of the 2014 Act from holding any residential tenancy. Secondly, the judge failed to understand the legal consequences of a landlord giving a tenancy to such a person who had no legal status in the United Kingdom. The landlord could be served with a penalty notice of up £3,000 under Section 23 of the 2014 Act. Hence it was an error for the judge to find that the explanation by the appellant was implausible because he had no documents and because there was no letter from the landlord to confirm his residence. Contrary to the views expressed by the judge it was contended that the explanation by the appellant was entirely and fundamentally sound.
Ground 6
The judge found at paragraph 15,
“I do not find the appellant has shown he has ever lived in the same household as the sponsor. The godfather has told me that he has provided money for the appellant and I find he has not shown there are not alternatives for him to reside in, either with family or friends or alone elsewhere.”
The judge had materially erred in law in finding “I do not find the appellant has shown he has ever lived in the same household as the sponsor.” Such a finding was contrary to the evidence provided and the weight of the evidence provided by the appellant and his witnesses. It was considered it was not for the appellant to show that there are alternatives for him to reside either with family or friends or alone elsewhere and such an issue had not been raised by the appellant in his evidence.
Ground 7
Further or in the alternative at paragraph 19 of the decision the judge made the following finding,
“I find the sponsor has very occasionally given a small sum of money, and not enough to show that she has been maintaining him. The brother has assisted the appellant financially, and the godfather and uncle may also have assisted but the appellant has not shown how else he has been maintaining himself.”
It was contended that the judge had materially erred in that he had failed to show that she had directed herself properly or applied the law in respect of the issue of “maintenance” in accordance with the terms of Regulation 8.
Submissions
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At the start of the hearing Mr Collins had some difficulty in connecting to the Tribunal but managed to join using the Skype link. He relied on his written grounds of appeal and emphasised in relation to ground 4 that the appellant could not be on the tenancy agreement because of the penalties on landlords and the judge had relied on the points made under that ground. Grounds 4 and 5 were linked. Ground 1 was a minor point but in the overall reading the judge did not appear to have directed herself to the burden and standard of proof by setting out the same at the outset of the decision. In relation to ground 3 the judge did not consider the evidence given. At ground 6 he said that there was evidence that Mr Gjoni was living in the household of the brother and sister. This was not challenged in the reasons for refusal letter. At ground 7 it is clear that it is a dependency issue not maintenance. Some money was paid by the sponsor to the appellant although it was accepted that the sponsor and brother did not marry until 2017 however, there was no definition of what relative was under Regulation 8.
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Ms Isherwood maintained there was no error of law. The judge applied the correct standard of proof. There was no legal basis to say that the brother of a boyfriend and girlfriend were family members. This brother married an EEA national after the appellant came to the UK and there was no evidence of prior dependency and therefore the appellant could not meet the Regulations.
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The judge did not simply rely on the tenancy agreement. The judge noted the travel history of the sponsor, that the appellant never formed part of the household out of the UK and looking at the dates they could not succeed. At paragraph 8 the judge was looking at the bank statements and rejected that the rent was paid for the appellant. There were contradictions in the evidence identified at paragraph 8. At paragraph 9 the judge looked at the evidence and found it did not support the claim that the appellant had met the EEA Regulations; simply the judge had found that the rent had not been paid consistently. There was missing evidence, gaps in the rent and no name on the tenancy agreement.
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Mr Collins rejoindered that the relevant test was a dependency not maintenance and that the EEA national contributed to money sent to the appellant in Albania cited at paragraphs 16 and 17. There was no finding under Regulation 8(2)(a) but that was not challenged. There was no concern about being a relative of the appellant.
Analysis
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The Immigration (European Economic Area) Regulations 2016 have now been revoked by The Immigration and Social Security Co-ordination (EU Withdrawal)...
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