Upper Tribunal (Immigration and asylum chamber), 2021-10-12, EA/05767/2019

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: EA/05767/2019 (v)

THE IMMIGRATION ACTS

Heard at Field House via Teams	Decision & Reasons Promulgated
On 27th August 2021	On 12th October 2021

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

Mr Usman Afzal

(anonymity direction NOT MADE

Appellant

and

ENTRY CLEARANCE OFFICER – ukLPA (LIVERPOOL)

Respondent

Representation:

For the Appellant: Ms E Rutherford, instructed by Bond Adam LLP Solicitors

For the Respondent: Mr T Lindsay, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appeals against the decision of First-tier Tribunal Judge Bennett, who in a decision promulgated on 15^th February 2021 dismissed the appellant’s appeal against the Entry Clearance Officer’s refusal of an EEA family permit under the Immigration (European Economic Area) Regulations 2016.

2. That decision set out that the appellant had applied for an EEA family permit to accompany Zeeshan Afzal Ghazala into the United Kingdom as the extended family member of an EEA national. The decision set out that the appellant was claiming to be dependent upon his sponsor, who he stated entered the United Kingdom on 16^th March 2019, and that he had provided evidence of various money transfers made from the sponsor to him dated June to September 2019 with amounts ranging from £45 to £95, various undated money transfers of similar monetary value and three transfers in 2018 each of 600 euros. The Entry Clearance Officer was not satisfied that the money transfers were regular nor that he was dependent upon his sponsor as claimed.

3. The Entry Clearance Officer added that he would expect to see evidence which fully details

“yours and your family’s circumstances. Your income, expenditure and evidence of your financial position which would prove that without the financial support of your sponsor your essential living needs could not be met.

On the evidence submitted in support of your application and on the balance of probability I am not satisfied you are related as claimed; or dependent on your sponsor.”

4. The application was refused under Regulation 8(2) of the Immigration (European Economic Area) Regulations 2016. That decision was dated 7^th October 2019.

5. The appellant submitted an appeal and at section 3B of the appeal form the appellant listed further documents that he included with his appeal as medical documents and “detail of foreign remittance year 2018 and 2019 and detailed expenditure”, “bank letter for home remittance” dated 22^nd October 2019 and “letter from EEA national to explain money transfer and financial position” dated 22^nd October 2019 and “latest foreign remittance receipts” dated 17^th October 2019, 9^th October 2019 and 2^nd October 2019.

6. In his appeal the appellant stated:

“I provided ample evidence with my application to support my claim that I am an extended family member of an EEA national and I solely depend upon my sponsor for my day-to-day needs. For this purpose I had provided money transfers and money receipts bank letter showing received home remittance.”

7. On 5^th March 2020 the First-tier Tribunal issued a notice to the appellant and respondent notifying the appellant that the respondent had failed to file an appeal bundle in accordance with directions together with a direction that the respondent should file an appeal bundle. On 5^th March 2020 additionally a notice of hearing of 17^th April 2020 was issued.

8. Nonetheless, because of the pandemic the appellant agreed to have the matter considered on the papers and the matter was determined on the papers on 15^th February 2021. At no point was the appellant represented until a decision to appeal the First-tier Tribunal decision.

9. The application for permission to appeal set out that:

1. The judge made a material misdirection in law in that the judge found he had considered the respondent’s discretion under Regulation 12(4) because there is no longer a ground of appeal that the decision was not in accordance with the law as per Ihemedu (OFMs - meaning) Nigeria [2011] UKUT 340 (IAC). The judge should have determined the issues raised in the refusal and erred in considering the respondent’s discretion.

2. The judge failed to consider material matters. The respondent’s decision was primarily directed to the question of dependency and at paragraph 16 the judge states “no documentary evidence has been submitted to demonstrate that Mr A and Mr ZAG are either brothers or otherwise related, one to the other”. That was wrong because the appellant and sponsor’s birth certificate were submitted as part of the original application to the Entry Clearance Officer together with other identity documents. The judge had erred as to whether there was evidence of a relationship which was submitted as part of the claim. If the judge was of the view the appellant had not appreciated that relationship was at issue he should have given the appellant an opportunity to provide it or remit the matter for an oral hearing further to Shen (Paper appeals; proving dishonesty) [2014] UKUT 00236.

3. Thirdly, the judge held as a discrepancy in his evidence was that the appellant stated in his application he was “supported by spouse/partner/other” at paragraph 1(f) and paragraphs 21(d). The judge states at paragraph 21(d) that plainly this indicates the applicant was being supported by his wife, but this was an irrational finding as the answer is in a dropdown menu on the form and the only way the appellant could indicate he was supported by an “other”, in this case his brother, was by that box. The finding was material to the question of dependency and vitiates his finding.

4. Fourthly, the finding at paragraph 18 was unfair when the judge recorded he has no evidence of remittances after October 2020 and he cannot assume that the sponsor is still employed or that the remittances had continued. This was a hearing on the papers and the appellant had submitted documentary evidence in support thereof. If there was a delay in the Tribunal determining the case on the papers it should not prejudice the appellant and if he had concerns he should have given directions that further evidence should be submitted and paragraph 27 of Shen was cited.

10. At the hearing itself Ms Rutherford submitted that a further raft of documentation was submitted under cover of letter dated 13^th August 2021 in support of the appeal. I refused to admit the documentation that was not before the First-tier Tribunal. There was a clear direction to the appellants dated 5^th March 2020 to the effect that should the appellants wished to rely on further documentation it should be submitted within 28 days.

11. Ms Rutherford submitted that there were four issues which were not raised by the Secretary of State which the judge addressed unfairly, first that the appellant was not related as claimed, secondly, that the sponsor was not exercising treaty rights, thirdly, that the exercise of discretion was not raised and fourthly, there was no evidence post the October 2020.

12. Ms Rutherford submitted that the appellant had supplied, with the visa application, documents in relation to the relationship and it was the appellant’s understanding that these would be put before the Tribunal. The judge had considered the application on the papers, which the appellant had consented to, but the appellant did not appreciate that the documents were not before him. The judge should have considered whether to direct an oral hearing when dealing with a litigant in person.

13. In terms of the dependency, the appellant did not assert that he was unable to work as indicated at paragraph 21(a) of the decision and this was irrelevant. The appellant had filled out the application form without legal assistance and there was a misunderstanding as to whether he had children or not and it was clear at question 62 of the application that he stated he had no dependent children when in fact he did.

14. Ms Rutherford accepted that there were no bank statements regarding credit or debit entries. At paragraph 21(d) the dropdown menu only permitted the response in relation to sponsor/partner/other and the appellant should not be criticised for that.

15. Further, the appellant explained the position with regard to the loan as addressed by the judge at paragraph 21(e). The appellant’s sponsor had moved and could not fund the appellant for a while and therefore he took a loan and the sponsor was sending money to reimburse the lender. The facts of the loan were set out by the appellant and sponsor.

16. Ms Rutherford accepted that the overall credibility was challenged at paragraph 21(h) but that did not undermine the fact of dependency. It was clear that the remittance receipts were accepted.

17. Mr Lindsay confirmed that the appeal was resisted. The additional bundle should not be admitted because it constituted further evidence which was not before the First-tier Tribunal Judge. It was not clear at all how the new evidence would show that the First-tier Tribunal erred in law or fact. The judge had thoroughly considered the documentation and there...