Upper Tribunal (Immigration and asylum chamber), 2022-11-10, EA/03229/2021 & Ors.
| Appeal Number | EA/03229/2021 & Ors. |
| Hearing Date | 26 September 2022 |
| Published date | 29 November 2022 |
| Date | 10 November 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Numbers: UI-2022-002946, UI-2022-002947, and UI-2022-002948
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: UI-2022-002946 (EA/03229/2021)
UI-2022-002947 (EA/03231/2021)
UI-2022-002948 (EA/03335/2021)
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 26 September 2022 |
On 10 November 2022 |
|
|
|
Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
Between
UBA HELMI abdi (first appellant)
mahrez sharif hassan (second appellant)
dahir elmi abdi (third appellant)
(anonymity directioN NOT MADE)
Appellants
and
ENTRY CLEARANCE OFFICER
Respondent
Representation:
For the appellant: Ms U Dirie, Counsel, instructed by Wilson Solicitors LLP
For the respondent: Ms N Willocks-Briscoe, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
-
This is an appeal against the decision of First-tier Tribunal Judge J Bartlett (“the judge”), promulgated on 25 February 2022 following a hearing on 21 February 2022. By that decision, the judge dismissed the appellants’ appeals against the respondent’s decisions, dated 25 February 2021 (in respect of the first appellant) and 5 December 2020 (in respect of the second and third appellants), refusing their applications for family permits under the Immigration (European Economic Area) Regulations 2016 ("the Regulations").
-
The appellants are all citizens of Somalia who have been residing in Kenya at all material times. The first appellant was born in 2002, the second in 2001, and the third in 2020. They applied for family permits under the Regulations in order to join Mr Ashkir Abdi Elmi, a Dutch citizen and the brother of the appellants (hereafter, “the sponsor”). It was asserted that the appellants were dependent on the sponsor for financial support in order to meet their essential living needs.
-
In refusing the applications, the respondent concluded that the appellants had failed to demonstrate that they were in fact dependent on the sponsor. It was said that the evidence of remittances from the sponsor was sporadic and that insufficient evidence had been provided as to the family’s circumstances.
-
The appellants appealed under the Regulations.
The decision of the First-tier Tribunal
-
The respondent was not represented at the hearing which, in this case as in many in which this situation arises, was unhelpful and, at least in part, led to one of the grounds of challenge against the judge’s decision.
-
Having summarised the evidence and submissions made on the appellants’ behalf, both oral and contained in a skeleton argument, the judge began his analysis at [10] with the finding that he was not satisfied that the sponsor had been the source of remitted funds. This finding was effectively repeated at [20].
-
The basis of that finding related to an analysis of figures on the sponsor’s income and the amounts of money apparently sent to the appellants between March 2020 and April 2021: [11]-[15]. At [18], the judge calculated that the total amount of remittances for the period in question was £5500, whilst the sponsor’s total business profit (from work as a taxi driver) amounted to £5627. On those figures, the judge found that the sponsor would have been left with only £127 for the year 2020/2021. At [19], the judge stated that the sponsor would have had “virtually nothing to live on.” At [20], the judge noted the existence of other family members who were employed, specifically relatives in the Netherlands and a sister in the United Kingdom. Ultimately, the judge concluded that, “… I am not satisfied that the funds which allegedly come from the sponsor actually do come from the sponsor. In the circumstances, I am not satisfied that the appellants are financially dependent on the sponsor.” The appeal was accordingly dismissed.
The grounds of appeal and grant of permission
-
Three grounds of appeal were put forward. First, the judge acted unfairly by finding that the remitted funds had not come from the sponsor, when this issue had not been raised in the respondent’s decision letters and, in the absence of a Presenting Officer and any indication/questions from the judge, the concern had not been put to the sponsor at the hearing. Second, the judge failed to have regard to material considerations, specifically the fact that sponsor did not have to pay for his accommodation and that he had previously sponsored his mother and her financial dependency on him had been accepted. Third, the judge failed to make necessary findings relating to whether the appellants were, at least in part, dependent on the sponsor for their essential living needs.
-
Permission to appeal was granted by the First-tier Tribunal on all grounds.
The hearing
-
Ms Dirie relied on the grounds of appeal and expanded on them in an appropriate manner. She submitted that, in the absence of a Presenting Officer, the judge should have at least raised a concern about the sponsor’s ability to have sent funds to the appellant’s at the hearing itself before reaching an adverse finding on the issue. As to the second ground, the judge had noted the evidence relating to accommodation costs, but had not seemingly taken this into account. On the issue of dependency and essential living needs, the judge had failed to assess whether the appellants needed the remitted funds for their essential living needs. The question was not whether they were entirely reliant on those funds.
-
Ms Willocks-Briscoe submitted that the judge’s decision was sustainable. He had undertaken an assessment of the evidence as a whole, including the figures relied on by the appellants themselves. Having carried out relevant calculations based on those figures, the judge had been entitled to find that the sponsor was not source of any remitted funds. It followed, she submitted, that any funds received by the appellants did not emanate from the EEA national and so there was no relevant dependency for the purposes of the Regulations.
-
In reply to Ms Willocks-Briscoe’s submissions and responding to some queries of my own, Ms Dirie acted with commendable professionalism in acknowledging the existence or otherwise of certain evidential matters. She accepted that there was no evidence before the judge of any other sources of income available to the sponsor. She accepted that there had in fact been no other sources of income for him at the relevant time. She also accepted that the judge had not taken it upon herself to factor in accommodation costs to her calculations where none had applied to the sponsor. Finally, Ms Dirie made the point that the remittance receipts were in the sponsor’s name, that none of these documents were said to be forgeries, and it was very unlikely that there would have been a family conspiracy relating to the transfer of funds to the appellants.
-
At the end of the hearing I reserved my decision.
Conclusions on error of law
-
Before turning to my analysis of this case I remind myself of the need to show appropriate restraint before interfering with a decision of the First-tier Tribunal, having regard to numerous exhortations to this effect emanating from the Court of Appeal in recent years: see, for example, Lowe [2021] EWCA Civ 62, at paragraphs 29-31, AA (Nigeria) [2020] EWCA Civ 1296; [2020] 4 WLR 145, at paragraph 41, and UT (Sri Lanka) [2019] EWCA Civ 1095, paragraph 19 of which states as follows:
“19. I start with two preliminary observations about the nature of, and approach to, an appeal to the UT. First, the right of appeal to the UT is "on any point of law arising from a decision made by the [FTT] other than an excluded decision": Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act"), section 11(1) and (2). If the UT finds an error of law, the UT may set aside the decision of the FTT and remake the decision: section 12(1) and (2) of the 2007 Act. If there is no error of law in the FTT's decision, the decision will stand. Secondly, although "error of law" is widely defined, it is not the case that the UT is entitled to remake the decision of the FTT simply because it does not agree with it, or because it thinks it can produce a better one. Thus, the reasons given for considering there to be an error of law really matter. Baroness Hale put it in this way in AH (Sudan) v Secretary of State for the Home Department at [30]:
"Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently."
-
Following from this, I bear in mind the uncontroversial propositions that the judge’s decision must be read sensibly and holistically and that I am neither requiring every aspect of the evidence to have been addressed, nor that there be reasons for reasons. Finally, should the need arise, it may be appropriate to consider the underlying materials before the judge in order to better understand his/her reasoning: see, for example, English v Emery Reimbold and Strick Ltd. [2002] EWCA Civ 605; [2002] 1 WLR 2409, at paragraphs 11 and 89.
Ground 1
My provisional view had been that the fairness challenge had some merit to it. I accept that the...
To continue reading
Request your trial