Upper Tribunal (Immigration and asylum chamber), 2022-05-05, [2022] UKUT 00157 (IAC) (Sohrab and Others (continued household membership))
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Stephen Smith, Upper Tribunal Judge Sheridan |
| Status | Reported |
| Published date | 20 June 2022 |
| Date | 05 May 2022 |
| Hearing Date | 28 March 2022 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | continued household membership |
| Appeal Number | [2022] UKUT 00157 (IAC) |
UT Neutral citation number: [2022] UKUT 00157 (IAC)
Sohrab and Others (continued household membership) Pakistan
Upper Tribunal
(Immigration and Asylum Chamber)
Heard at Field House
THE IMMIGRATION ACTS
Heard on 28 March 2022
Promulgated on 5 May 2022
Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE STEPHEN SMITH
UPPER TRIBUNAL JUDGE SHERIDAN
Between
Mr Jahanzeb Sohrab
Mrs salaiha khalid
mr arhaan khan
(ANONYMITY DIRECTION not made)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr J. Jegede, Solicitor, Ashton Ross Law
For the Respondent: Mr S. Whitwell, Senior Home Office Presenting Officer
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A person seeking recognition as an “extended family member” (“EFM”) under regulation 8(2) of the Immigration (European Economic Area) Regulations 2016 must establish a relevant connection with their EEA sponsor in the country of origin, and in the UK.
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The relevant connection may be through being a dependent of the EEA national sponsor, or through being a member of the EEA national’s household. The relevant connection may change between the country of origin and the UK, as held in Dauhoo (EEA Regulations – reg 8(2)) [2012] UKUT 79 (IAC).
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There must not be a break in dependence or household membership from the country of origin to the UK, other than a de minimis interruption.
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To be a member of an EEA national’s household requires a sufficient degree of physical and relational proximity to the EEA national through living in the household of which the EEA national is the head, living together as a unit, with a common sense of belonging. There should be a genuine assumption of responsibility by the EEA national for the EFM. Questions of the commencement of the assumption of responsibility and the duration of dependency or household membership are relevant.
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An applicant may, in principle, establish a relevant connection to an EEA national in the UK through being a member of the EEA national’s household in the UK before the EEA national has arrived here themselves. Such cases are likely to involve putative EFMs who were already members of the EEA sponsor’s household in the country of origin.
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It will be a question of fact and degree as to whether a person living away from the EEA sponsor’s household is to be regarded as having left that household. Relevant factors are likely to include:
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the duration of the separation;
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the nature and the quality of the links maintained with the household during the extended family member’s time living away;
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whether there was an intention to continue life together as a household, with the EEA national as the head, at the time the putative EFM left;
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the extent to which the departing members of the household have established their own distinct household elsewhere;
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the extent to which there remains a genuine assumption of responsibility (including financial responsibility) by the EEA sponsor for the putative EFMs during the period of physical separation, and any corresponding dependence (including financial dependence) on the part of the EFM;
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the immigration capacity in which the EFM has resided in the UK ahead of the EEA sponsor’s arrival.
DECISION AND REASONS
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This appeal concerns the construction of regulation 8(2)(b)(ii) of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”), in particular what is meant by the words “and continues… to be a member of the EEA national’s household”. This criterion lies at the heart of whether the appellants in these proceedings fall into the definition of “extended family members” contained in regulation 8(2)(b)(ii), and, accordingly, whether they have the potential to enjoy the relatively preferential rights conferred on extended family members of an EEA national by the 2016 Regulations.
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Although the UK has now left the EU and the implementation period came to an end at 11PM on 31 December 2020, this appeal was commenced before then. Pursuant to paragraph 5 of Schedule 3 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020, the 2016 Regulations continue to apply to these proceedings.
Factual background
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This is an appeal against a decision of First-tier Tribunal Judge Plowright (“the judge”) promulgated on 10 June 2021. The judge dismissed the appellants’ appeals against a decision of the respondent dated 2 September 2020 to refuse their applications for residence cards as family members of an EEA national under the 2016 Regulations submitted on 10 July 2020.
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The appellants are citizens of Pakistan. Their case begins with the first appellant’s childhood in Pakistan. He was born in 1984 and lived with his parents, and his aunt, Fosta Ahmed, in a shared family home. Sadly his father died in 1987. His mother continued to live in the family home until she left to remarry in 1989, but he remained with his aunt in the family home, and she raised him as her own son. He continued to be a part of his aunt’s household, and she supported him financially throughout much of his adulthood in Pakistan. There is a disputed issue as to whether he was adopted by the aunt, to which we will return, but it is his case that he is her adopted son. In 2017, the first appellant married the second appellant. They lived together as man and wife, in his aunt’s house, with her as a single household until July 2018 when the second appellant came to the United Kingdom on a Tier 4 student visa. The first appellant joined her as her dependent (for the purposes of the Immigration Rules) in late October 2018, and in January 2019, their son, the third appellant, was born.
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In 2005, the aunt had become an Italian citizen. Relying on her free movement rights under EU law, she moved to the United Kingdom in May 2019, and again lives in a single household with the appellants. She is self-employed as a seamstress, in the capacity, it seems, of a sole trader. In the 2019/20 tax year, her profit declared to HMRC was £3,482.
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On 10 July 2020, the appellants applied for residence cards under the 2016 Regulations, as “family members” of Ms Ahmed, to whom we will refer to as “the sponsor”.
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The Secretary of State refused the applications on three bases. First, she was not satisfied that the first appellant was a “family member” of the sponsor. That was because the appellants had provided only copies of the relevant documents, and not the original documents. Secondly, she was not satisfied that the appellants were dependent upon the sponsor. Finally, the evidence that the sponsor was self-employed was insufficient.
The decision of the First-tier Tribunal
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The judge found that the sponsor’s income was too low, at £3,482 in 2019/20, to be “genuine and effective”. It was difficult to see how she could support the entire household on that low income, and she appeared to be receiving third party financial support from another person. She was not a “qualified person” for the purposes of regulation 6 of the 2016 Regulations: [18] to [22].
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As to the first appellant’s status as a “family member of an EEA national”, the judge found that there was insufficient evidence that the first appellant had been adopted by the sponsor. He considered the timing of the purported adoption, said to have taken place in 1987, to be odd, as it suggested that the first appellant was formally adopted by the sponsor before his biological mother left the shared family home: [36].
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The judge went on to consider the appeal under regulation 8 of the 2016 Regulations, concerning “extended family members”, as he found the first appellant to be the nephew of the sponsor. The judge accepted that the first and second appellants were members of the sponsor’s household in Pakistan, and that they were financially dependent upon her there: [42].
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The judge said at [45] that, pursuant to Aladeselu v Secretary of State for the Home Department [2011] UKUT 253 (IAC); [2011] Imm AR 765, there was no issue with the first two appellants arriving in the United Kingdom prior to the sponsor. At [46], he identified the operative question for resolution as being whether “the first two appellants continued to be financially dependent upon the sponsor after they came to the United Kingdom and prior to the sponsor coming to the United Kingdom.” Pursuant to Chowdhury v Secretary of State for the Home Department [2020] UKUT 188 (IAC) it was necessary, said the judge, to determine whether there had been a “break in [the appellants’] dependency on the EEA national sponsor”.
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At [48], the judge made findings of fact that he did not accept:
“…the unsupported assertions of the witnesses that either the first appellant or the second appellant were financially dependent upon the sponsor after they came to the UK, bearing in mind that the first appellant came to the UK as the dependent of the second appellant.”
The judge then found that, while the first and second appellants were financially dependent upon the sponsor in Pakistan, and had been members of her household there, he was not...
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