Upper Tribunal (Immigration and asylum chamber), 2022-09-22, EA/03820/2019
| Appeal Number | EA/03820/2019 |
| Hearing Date | 25 August 2022 |
| Published date | 07 October 2022 |
| Date | 22 September 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: EA/03820/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/03820/2019
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 25th August 2022 |
On 22 September 2022 |
|
|
|
Before
UPPER TRIBUNAL JUDGE KEITH
Between
Mrs Sarmin akter
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr A Maqsood, instructed by direct access.
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer
DECISION AND REASONS
-
This is the remaking of the decision in the appellant’s appeal against the respondent’s refusal of her application for an EEA Residence Card under the Immigration (EEA) Regulation 2016 as the extended family member of her cousin, an EEA (Italian) National, Mr Jwell Raj.
-
The appellant, a citizen of Bangladesh, entered the UK on 12th February 2014, as the dependent of her husband, Mr N Basher, who was present in the UK on a student visa and had himself entered the UK on 26th February 2009. The couple had married on 7th November 2013. Mr Raj entered the UK on 18th March 2014 after her, having acquired Italian citizenship, on a date which is disputed. The respondent’s subsequent refusal letter dated 17th July 2019 refers to an earlier application, first refused by the respondent on 8th September 2016 and an appeal to the First-Tier Tribunal (Judge Henderson). Judge Henderson had dismissed the appellant’s early appeal. Judge Henderson did not accept the appellant’s dependency on Mr Raj prior to her entry to the UK. I say more about Judge Henderson’s decision later in my reasons.
-
The July 2019 refusal (the decision under challenge) also noted the respondent’s concern that Mr Raj was not an EEA national during the periods when the appellant claimed pre-entry dependency. In the July 2019 decision, the respondent also rejected any post-entry dependency, noting an enforcement visit in July 2019 in which witnesses suggested that Mr Basher collected rent from other tenants in a multi-occupation property, and, whom it was alleged, was apparently unaware of the relationship between Mr Raj and the appellant.
-
The appellant appealed the July 2019 refusal of her application. Her appeal was heard by FtT Judge Andonian who, in a decision dated 25th November 2019, dismissed the appeal, not only because of the absence of pre- and post-entry dependency, but also on the basis that he did not accept that it had been shown that Mr Raj was exercising treaty rights. The appellant appealed against that decision, principally on the basis that she had been unable to attend the hearing because she had become unwell and had had to attend hospital for treatment at short notice.
-
I previously set aside the Judge Andonian’s decision, allowing the appellant’s appeal, because the FtT ought to have considered the impracticality of obtaining documentary evidence of being unwell on the same day of the hearing (which was in fact later provided). There were no preserved findings of fact, but bearing in mind the narrow issues, I regarded it as appropriate to retain remaking in the Upper Tribunal.
The issues in this appeal
-
The respondent accepts that the sponsor is now a qualifying person for the purpose of the 2016 Regulations. I identified the remaining issues in dispute:
-
Issue (1) the respondent does not accept that the appellant was an Italian national between the dates of 7th February 2014, when he claims he was naturalised; and 12th February 2014, when the appellant entered the UK from Bangladesh. That period of 5 days is relevant, as this is the claimed ‘pre-entry’ dependency. The first issue is therefore whether the sponsor was an Italian citizen during that time.
-
Issue (2) – was the appellant dependent on the sponsor, even if only in part, for her essential living needs, and regardless of whether this was out of choice (see Dauhoo (EEA Regulations – reg 8(2)) [2012] UKUT 00079 (IAC)), between 7th and 12th February 2014?
-
Issue (3) – was the appellant dependent on the sponsor from 12th February 2014 until the date of her application for an EEA Residence card on 8th March 2019? If so, was it continuous and without a ‘de minimis’ interruption (see §§23 and 47 of Sohrab and Others (continued household membership) Pakistan [2022] UKUT 00157 (IAC)). For the avoidance of doubt, Mr Maqsood specifically confirmed that household membership was not claimed, either pre or post-entry.
-
Issue (4) – to what extent where there grounds to depart from Judge Henderson’s previous findings in his decision of 11th October 2018, in respect of precisely the same issues? I bore in mind the authority of Devaseelan v SSHD [2002] UKIAT 00702, and in particular, taking Judge Henderson’s findings as my starting point (see §39(1)). There were no new facts but instead, I was asked to consider other evidence not before Judge Henderson. I was conscious that these findings were not a ‘straight-jacket’ (see: R (MW) v SSHD (Fast track appeal: Devaseelan guidelines) [2019] UKUT 00411 (IAC)).
-
Documents
-
The appellant relied on a main bundle, prepared for a previous adjourned hearing in July 2022, (hereinafter, “AB”) and a more supplementary bundle (“ASB”). The latter contained witness statements for the appellant and the sponsor. Mr Maqsood also provided a skeleton argument. I thank both Mr Maqsood and Ms Cunha for their relevant and helpful submissions.
-
I have not recited respective representatives’ legal submissions, nor the evidence of the appellant and her sponsor who adopted their brief witness statements and were subject of very limited cross-examination by Ms Cunha. Instead, I only refer to the submissions and evidence where it is necessary to discuss any conflict.
The Hearing
-
Mr Maqsood began by asking me to treat the appellant as a vulnerable witness for the purposes of the Joint Presidential Guidance (No. 2) of 2010. I discussed with him in the context of SB (vulnerable adult: credibility) Ghana [2019] UKUT 00398 (IAC) in what way there was a link between the appellant’s vulnerability and her evidence. Mr Maqsood referred to the appellant’s recent Parathyroidectomy surgery relating to her neck, and Hypercalcaemia. The practical effect of this was that there might be moments when the appellant found it difficult to concentrate and would need to pause to understand the question and to reflect on her answer. I discussed with Mr Maqsood, and discussed with the appellant, that if at any stage when she felt she needed a pause in the questions, she should let us know. Mr Maqsood said that having been given the opportunity to have these short breaks, I was entitled to rely upon the appellant’s answers as being unaffected by her conditions.
The Law
-
Regulation 8 of the EEA Regulations states:
8 “Extended family member”
(1) In these Regulations “extended family member” means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).
(2) A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and—
(a) the person is residing in [a country other than the United Kingdom] . . . and is dependent upon the EEA national or is a member of his household;
(b) the person satisfied the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or
(c) the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household.
(3) A person satisfies the condition in this paragraph if the person is a relative of an EEA national or his spouse or his civil partner and, on serious health grounds, strictly requires the personal care of the EEA national his spouse or his civil partner.
(4) A person satisfies the condition in this paragraph if the person is a relative of an EEA national and would meet the requirements in the immigration rules (other than those relating to entry clearance) for indefinite leave to enter or remain in the United Kingdom as a dependent relative of the EEA national were the EEA national a person present and settled in the United Kingdom.
(5) A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national.
(6) In these Regulations “relevant EEA national” means, in relation to an extended family member, the EEA national who is or whose spouse or civil partner is the relative of the extended family member for the purpose of paragraph (2), (3) or (4) or the EEA national who is the partner of the extended family member for the purpose of paragraph (5).”
-
The case of Dauhoo confirms that someone can meet the requirements of Regulation 8(2) in one of four ways, each requiring proving a relevant connection both prior...
To continue reading
Request your trial