Upper Tribunal (Immigration and asylum chamber), 2024-01-17, UI-2023-001763 & Ors.
| Appeal Number | UI-2023-001763 & Ors. |
| Hearing Date | 14 December 2023 |
| Date | 17 January 2024 |
| Published date | 01 February 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Numbers: UI-2023-001763, UI-2023-001764, UI-2023-001765
First-tier Tribunal Nos: EA/02322/2022,EA/02328/2022,EA/02325/2022
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case Nos: UI-2023-001763 UI-2023-001764 UI-2023-001765
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First-tier Tribunal Nos: EA/02322/2022 EA/02328/2022 EA/02325/2022 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 17th of January 2024
Before
DEPUTY UPPER TRIBUNAL JUDGE SHEPHERD
Between
MRS Syeda Zahra Tamkeen (1)
MISS SYEDA ZAIRA BATOOL (2)
MR SYED MUHAMMAD QASIM (3)
(NO ANONYMITY ORDER MADE)
Appellants
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr Broachwalla, counsel, Clarendon Park Chambers
For the Respondents: Ms Arif, Senior Home Office Presenting Officer
Heard at Birmingham Civil Justice Centre on 14 December 2023
DECISION AND REASONS
Background
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This is the remaking of the decision in the Appellants’ appeals against the Respondent’s refusals of their human rights claims.
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The Respondent’s decision letters of 4 December 2020 and 9 December 2020 refused the Appellants’ applications made on 15 October 2020. The First Appellant is the mother of the Second and Third Appellants.
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The First Appellant applied under the EU Settlement Scheme to join the Sponsor, Mr Syed Nigah Hussain, on the basis that he is her biological brother and she is dependent on him. The Second and Third Appellants applied under the EU Settlement Scheme to join the same Sponsor on the basis that he is their uncle and they are dependent on him.
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The Respondent refused the Appellants’ claims by letters dated 4 December 2020 (First Appellant) and 9 December 2020 (Second and Third Appellants).
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The First Appellant’s application was considered under Appendix EU (Family Permit) to the Immigration Rules on the basis she was a 'family member of a relevant EEA citizen'. It was refused on the basis that she had not provided sufficient evidence to prove that she was a 'family member' and her relationship to the Sponsor did not come within the definition of that term.
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The Second and Third Appellant’s applications were considered under regulation 8 of the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”). They were refused on substantially the same basis as each other. This was that the eleven money transfer receipts they had provided did not, in isolation, prove that they were financially dependent on the Sponsor. They had not provided any evidence regarding their own family’s financial situation. Whilst they had provided an affidavit declared by their mother, this was in effect a self-declaration and little weight was attached to it. It was not accepted that they were financially dependent on the Sponsor.
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The Appellants appealed the refusal decisions.
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Their appeals were heard together as linked appeals by First-tier Tribunal Judge Row (“the Judge”) at Nottingham on 2 March 2023. The Judge subsequently dismissed all of the appeals in a decision promulgated on 7 March 2023.
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The Appellants applied for permission to appeal to this Tribunal, which was granted by First-tier Tribunal Judge Lawrence on 11 May 2023.
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The Respondent filed a rule 24 response.
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Following a hearing on 12 September 2023, my error of law decision was promulgated on 5 October 2023. I found that the Judge’s findings concerning the First Appellant were sound such that I upheld his decision to dismiss the First Appellant’s appeal. However I found that the Judge’s findings concerning the Second and Third Appellant’s appeals were infected by material error of law and set them aside, for remaking in this Tribunal. The remaking is the subject of this decision.
The Hearing
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As the Second and Third Appellants are the only appellants concerned in this decision, I shall refer to them simply as ‘the Appellants’ and confirm that, unless stated otherwise, this term does not include the First Appellant whose appeal has already been dismissed.
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At the resumed hearing before me on 14 December 2023, the papers before me were as follows:
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The bundles as were previously before the Judge which are:
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Respondent’s bundles comprised of 29 pages for each of the Appellants;
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Appellants’ ‘stitched’ bundle 155 pages
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Appellants’ additional paginated bundle filed the day before the hearing.
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Mr Broachwalla apologised for the lateness of the additional bundle, which he said contains the same documents as previously plus a new skeleton argument, new Sponsor’s witness statement, and some additional money transfer receipts. He said the new bundle contained everything upon which the Appellants wished to rely. He did not have a particularly good explanation for the lateness, however Ms Arif did not object to the bundle being adduced and admitted that the Respondent had also not complied with the Tribunal’s directions to provide a skeleton argument. Although I expressed my disappointment and underlined the need for compliance with procedure, I permitted the additional bundle given the very limited amount of additional items, lack of objection from the Respondent, and for the sake of dealing with the matter in its entirety with a view to preventing any further litigation in accordance with the overriding objective.
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It was agreed that the sole issue was whether the Appellants are extended family members of the sponsor, their uncle, Mr Syed Nigah Hussain, pursuant to regulation 8 of the EEA Regulations, which required me to consider dependency.
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The Sponsor attended and gave oral evidence in Urdu via the interpreter who he confirmed he understood. There were no other witnesses.
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I have had regard to all the oral and documentary evidence and considered this and the submissions even where not specifically mentioned.
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Full notes of the oral evidence and submissions are set down in the record of proceedings. The main points arising from the oral evidence were as follows:
Oral evidence – Sponsor, Mr Syed Nigah Hussain
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The Sponsor confirmed his full name and address and that the contents of his witness statement dated 13 December 2023 were true and accurate to the best of his knowledge and could stand as his evidence in chief.
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He said the person other than him shown on the electricity bills provided is his father; electricity bills in Pakistan now mention the parentage of the bill payer; otherwise it shows the Sponsor’s name because the house belongs to him.
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He confirmed that the document appearing to show bank entries, commencing with an entry for Hatton service station, is from his bank statement. As regards the entry on 24 January 2020 to ‘Amran Haider’, he said this is money being received from his friend in Derby; he was short of money at the time and friends are there to help each other. The entry on 19 February 2020 showing money being paid in euros to ‘Taveer Hussain’, also concerned his friend; he has only sent such monies once or twice in the last years. The entry on 19 March 2020 showing money sent to ‘Hassan Askri’ in euros, concerned money sent to his nephew who was in need of money at the time. When asked why the money was in euros, he said because “he helped me in the past and I have to return that money back to him”. When asked again later, he said because the person lives in Europe.
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He confirmed that the letter dated 10 October 2020 from “the Educators” was in respect of his sister’s son’s education; it says his nephew is the son of Syed Ali Raza because the school always mention the father or parents’ names on documents. He said even though this document refers to the school as being a girl’s school, it is actually co-educational, he does not know why the name is like that, it has been like that for some time. He did not know whether the school had been informed that his nephew’s parents have separated; his sister is the one contacting the school.
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He said he pays the school fees for his nephew; the money he sends is used for the children’s expenses and admission fees which his sister manages.
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He confirmed the document headed “Bank al Habib” is a receipt from a bank for money sent by him using Moneygram; he did not send money into an account, his sister was able to pick it up at different branches of different banks; she does not have a bank account in Pakistan to his knowledge; he has not asked her if she has one, there was never a need to open one as it works quite well sending it through Moneygram.
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He said his mother, wife and children all came to the UK during Covid; his father remained in Pakistan as he was not willing to come over.
He said he does not send a fixed amount of money to his sister, but between £150 and £250, it depends on need and on his savings as well; she needs more but she manages to live within what he sends; he spends the money on the children, their education and grocery shopping; receipts were submitted with the application; they do not have to pay rent as it is his house; he has lived there himself so knows the...
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