Upper Tribunal (Immigration and asylum chamber), 2023-10-24, UI-2021-001579 & UI-2021-001581
| Appeal Number | UI-2021-001579 & UI-2021-001581 |
| Hearing Date | 28 September 2023 |
| Date | 24 October 2023 |
| Published date | 17 November 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
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Case No: UI-2021-001579 UI-2021-001581 |
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First-tier Tribunal No: EA/01656/2021 EA/01662/2021 |
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2021-001579 UI-2021-001581 |
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First-tier Tribunal No: EA/01656/2021 EA/01662/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 24 October 2023
Before
UPPER TRIBUNAL JUDGE HANSON
UPPER TRIBUNAL JUDGE BRUCE
Between
AZAD IZADEEN ANWAR
AHMED IZADEEN ANWAR
(NO ANONYMITY ORDER MADE)
Appellants
and
AN ENTRY CLEARANCE OFFICER
Respondent
Representation:
For the Appellant: Mr Akram on 7 March 2023 and Mr G Brown on 28 September 2023 instructed by Jiva Solicitors.
For the Respondent: Mr McVeety, a Senior Home Office Presenting Officer.
Heard at Manchester Civil Justice Centre on 7 March 2023 and 28 September 2023
DECISION AND REASONS
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The Appellants appeal with permission a decision of First-tier Tribunal Judge Birrell, (‘the Judge’), promulgated on 30 June 2021, in which the Judge dismissed their appeals against the refusal of their applications for EEA Family Permits to join Zeki Awar (‘the Sponsor’), a citizen of the Netherlands, in the UK, as Extended Family Members (‘EFM’).
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The refusal of the applications, which we set out in full as similar terminology is appearing in a number of refusals, reads:
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You state that your Brother is a Dutch national. You have provided evidence that your sponsor holds a Dutch passport.
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To evidence your relationship with your Brother, you have submitted a birth certificate for yourself. However, you have not submitted any historical documents available or issued at the time of your sponsor’s birth to evidence their parentage. Without further historical documentary evidence or other credible documentation evidencing their parentage, I am not satisfied that you have provided sufficient evidence that your relationship with your sponsor is as stated.
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Only those family members referred to under Article 2 of the Directive 2004/ 38/EC have an automatic right to join or accompany an EEA family member to another member state when that EEA national is exercising a Treaty right.
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Article 3 of Directive 2004/38/EC provides the basis for a member state other relatives, such as ‘extended family members’ and determine the terms of entry and residence to such ‘beneficiaries’ in accordance with their own domestic legislation. (Articles 3 (2)).
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The United Kingdom has transposed the terms of Article 3 into Regulation 8 of the Immigration (European Economic Area) Regulations 2016. As Regulation 8(4) makes clear, United Kingdom is allowed to set terms on when it will accept extended family members and allow them to reside in the United Kingdom as family members of an EEA national.
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To meet the relevant EEA Regulation 8, you must demonstrate that you are an ‘extended family member’ of your EEA sponsor and that your EEA sponsor is a qualified person. This means relatives of the EEA national must be dependent upon their sponsor. Financial dependents should be interpreted as meaning that you need the financial support of the EEA national or his or her spouse/civil partner to meet your essential needs in the country where you are present and that the sponsor will be able to support you once in the UK.
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On your application you state that your sponsor has resided in the UK since 22 August 2014 and that you are financially dependent on him. As evidence of this you have provided money transfer remittance receipts from your sponsor to you, however, it is noted that these transfers are dated immediately prior to your application (within the last 3 months). Unfortunately, this limited amount of evidence in isolation does not prove that you are financially dependent on your sponsor. I would expect to see substantial evidence of this over a prolonged period, considering the length of time your sponsor has been resident in the United Kingdom.
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I would also expect to see evidence which fully details yours and your family’s circumstances. Your income, expenditure and evidence of your financial position which would prove that without the financial support of your sponsor your essential living needs could not be met.
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Home Office records show that your sponsor has a wife and at least 5 dependent children. The submitted evidence shows that he earns a net income of approximately £689 per month, as stated on his latest HMRC tax return. Due to his low income, your sponsor also receives state benefits, namely, Universal Credit. I am therefore not satisfied that it is sustainable for your sponsor to financially support you, along with his own family in the UK. Therefore, after considering these factors, there is a risk that if you did arrive in the United Kingdom that you may become a burden on the public funds system of this country.
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On the evidence submitted in support of your application and on the balance of probability, I am not satisfied that you are related as claimed; or dependent on your sponsor. I am therefore not satisfied that you are a family member in accordance with regulation 8 of the Immigration (European Economic Area) Regulations 2016.
I therefore refuse your EEA Family Permit application because I am not satisfied that you meet all of the requirements of regulation 12 (se ECG’s EUN2.23) of the Immigration (European Economic Area) Regulations 2016.
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Having considered the evidence the Judge finds that the Appellants had produced sufficient evidence to establish the relationship was as claimed [9 – 11], that the Appellants are dependent upon the financial support of the Sponsor to meet their essential needs [17], but dismissed the appeals for the reason set out in that paragraph, which is in the following terms:
17. Looking at the evidence before me I accept that the Appellants have met the evidential burden of establishing that are related as claimed in that they are dependent on the financial support of the Sponsor to meet their essential needs. However given that the Sponsor’s own means are limited and his earnings are such that the state acknowledges that he is entitled to receive support I find that there is a real risk of the parties becoming an unreasonable burden on the social assistance system in the UK as there is no satisfactory evidence that the Appellants will be able to find employment within a reasonable time or afford the costs of accommodation in the UK.
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The Appellants sought permission to appeal asserting:
The Judge has erred in:
a. Taking in account irrelevant factors and not allowing the appeal on the basis the positive findings of fact made.
b. Misdirecting herself in law on the issue of how the discretion under Regulation 12(4) operates.
Ground 1- Taking in account irrelevant factors and not allowing the appeal on the basis the positive findings of fact made.
3. Both refusal decisions raised the issue as to whether the requirements of Regulation 12 of the EEA regulations were met and in each of the decisions the refusals were on the basis that the respondent was not satisfied as to the relationship as claimed, nor that each of the A’s were dependent on the sponsor.
4. Notably the R had not refused the case under Regulation 13 of the EEA regulations, this regulation only arose at the hearing in discussions as to whether there was interplay, between the regulations when looking at the issue of the exercise of discretion conferred by Regulation 12(4) of the Regulations. Article 13 is concerned with the initial right of residence and it only relevance potentially was whether the issue on “unreasonable burden on the social assistance system” was established on the facts and whether this impacted on the issue of dependency being established.
5. The sponsor had given evidence that he only had to resort to Universal credit as a result of the Covid 19 pandemic and in any event his evidence was that the household income was sufficient for him to be able to support both his brothers.
6. The Judge found at paragraphs 10 -11 that the A’s had satisfied her that each of them were related as claimed.
7. Further with regard to the issue of dependency the Judge finds at paragraph 17 that, “Looking at the evidence before me I accept that the Appellant’s have met the evidential burden of establishing, they are related as claimed and that they are dependent on the financial support of the Sponsor to meet their essential living needs.”
8. The A’s contend that arguably given these findings the appeals of both appellants should have been allowed. Once the Judge had accepted this, notwithstanding, that it was on the basis of the Sponsor being in receipt of income that...
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