Upper Tribunal (Immigration and asylum chamber), 2023-07-26, UI-2022-003535
| Appeal Number | UI-2022-003535 |
| Hearing Date | 11 July 2023 |
| Date | 26 July 2023 |
| Published date | 10 August 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-003535
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-003535 |
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First-tier Tribunal No: EA/10537/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 26 July 2023
Before
UPPER TRIBUNAL JUDGE JACKSON
Between
MUHAMMAD JUNAID ISHRAT
(NO ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M Karnik of counsel, instructed by Sabz Solicitors LLP
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer
Heard at Field House by remote video means on 11 July 2023
DECISION AND REASONS
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This has been a remote hearing which has not been objected to by the parties. The form of remote hearing was by video, using Teams. There were no technical difficulties for the hearing itself and the papers were all available electronically (some being provided during the course of the hearing).
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The Appellant appeals with permission against the decision of First-tier Tribunal Judge Herwald promulgated on 15 February 2022, in which the Appellant’s appeal against the decision to refuse his application for an EU Settlement Scheme (EUSS) Family Permit dated 28 May 2021 was dismissed.
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The Appellant is a national of Pakistan, born on 10 June 1990, who applied for an EUSS Family Permit on 27 December 2020 to join his father, an Italian national, (the Sponsor), in the United Kingdom.
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The Respondent refused the application the basis that to be eligible, the Appellant must demonstrate that the EEA citizen is resident in the United Kingdom but he failed to do so. The Appellant was contacted on 7 May 2021 to provide further information but nothing was received. It appears that the Appellant’s representatives did seek to reply with further evidence, but sent it to the wrong email address (not the one advised by the Respondent but instead to an unmonitored inbox which was for outgoing use only). Those documents were in any event before the First-tier Tribunal.
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Judge Herwald dismissed the appeal in a decision promulgated on 15 February 2022 on all grounds. On the basis that the Appellant’s claim was that the Sponsor was resident in the United Kingdom as at the date of his application on 27 December 2020 rather than at a future date within six months; the First-tier Tribunal dismissed the appeal as there was insufficient evidence to show that the Sponsor was resident at the date of application; even though there was evidence to establish that he had been resident and working in the United Kingdom since February 2021 and to the date of hearing.
The appeal
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The Appellant appeals on the sole ground that the First-tier Tribunal erred in law in failing to consider the alternative requirement under paragraph FP6 of Appendix EU that the EEA citizen will be travelling to the UK with the applicant within six months of the date of the application and the applicant will be accompanying the EEA citizen within six months of the date of application. The First-tier Tribunal erred in only considering whether the EEA citizen was already resident in the United Kingdom at the date of application.
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On behalf of the Appellant, Mr Karnik relied on the ground of appeal and grant of permission. He submitted that the Appellant’s case was advanced on both grounds under paragraph FP6 of Appendix EU, first that the Sponsor was already resident in the United Kingdom and in any event was so resident within six months of the date of application. This was identified in the Appellant’s Skeleton Argument before the First-tier Tribunal and the two options are set out in paragraph 11 of the First-tier Tribunal decision, with agreement in paragraph 16 of the decision of the two alternatives put. On the facts, the First-tier Tribunal found that the Sponsor was resident in the United Kingdom within six months of the date of application, from February 2021. Mr Karnik submitted that even if the Appellant’s alternative argument was only obliquely made, the Immigration Rules provide for a clear alternative which on the facts the Appellant could meet. The Court of Appeal have recently confirmed in Shyti v Secretary of State for the Home Department [2023] EWCA Civ 770 that where written arguments have been made, these must be addressed by the Tribunal if material.
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The Appellant also relies on the EU Withdrawal Agreement which does not require a person such as the Sponsor to be present in the United Kingdom at all times and nor do the Immigration Rules require continuous presence. The Sponsor has been granted pre-settled status and has shown residence from at least February 2021.
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On behalf of the Respondent, Mr Melvin relied on his skeleton argument. In essence, there was a single narrow issue before the First-tier Tribunal of whether the Sponsor was resident in the United Kingdom at the date of application by the Appellant. That sole issue was recognised and recorded by the First-tier Tribunal in its decision and as set out in paragraph 16, which included a rejection of the submission on behalf of the Appellant in the alternative that residence at the date of hearing was sufficient and that while there may be a possibility of the Sponsor not yet living in the United Kingdom, it was not the case put on behalf of the Appellant in this appeal.
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Whilst not directly in issue in the reasons for refusal letter or before the First-tier Tribunal, the Respondent would question whether dependency existed in this case given that the Appellant was now an adult in his 30’s, but Mr Melvin accepted that this was not raised by the Respondent previously.
Findings and reasons
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The sole issue in this appeal is whether the alternative basis of satisfying paragraph FP6, i.e within six months of the date of application rather than at the date of application itself was properly before the First-tier Tribunal to determine. Only if it was, would it be an error of law for the First-tier Tribunal to fail to make findings on it. For the reasons set out below, I do not find that it was and as such there is no error of law in the decision of the First-tier Tribunal who decided the sole issue before it which was whether the Sponsor was resident in the United Kingdom at the date of application. There is no challenge to the factual findings of the First-tier Tribunal on this point that the Sponsor was not resident until February 2021 from when there was evidence of employment and residence.
The Appellant’s application made on 27 December 2020 was on the basis that he planned to arrive in the United Kingdom on 20 January 2021 and that the Sponsor was already in the United Kingdom having arrived on 11 Ocober 2020. The Respondent’s refusal of the application was on the basis that the Appellant had not established that the Sponsor was resident in the United Kingdom at the time of the application and that a request for further evidence that the Sponsor was resident in the United Kingdom when the application...
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