United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case Nos: UI- 2023-000305 & UI-2023-000306
	First-tier Tribunal Nos: EA /02171/2022 & EA/02374/2022

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 19 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE RINTOUL

 

Between

 

Abdul Jabbar (First Appellant)

Muhammad Tayyab Iqbal (Second Appellant)

(NO ANONYMITY ORDER MADE)

Appellants

and

 

Entry Clearance Officer

Respondent

Representation :

For the Appellants: No appearance

For the Respondent: Ms E Blackburn, Senior Home Office Presenting Officer

 

Heard at Edinburgh on 10 October 2024

 

DECISION AND REASONS

1.              The appellants appeal with permission against the decision of First-tier Tribunal ("FtT") promulgated on 28 October 2022, dismissing their appeals against the decisions of the Secretary of State made on 12 January 2022 to refuse to issue them with family permits under Appendix EU (Family Permit) to the Immigration Rules ("Appendix EU (FP)") on the basis that they are the children aged under 21 of a relevant EEA citizen, Mrs Nawida Iftikhar ("the sponsor").

2.              When the matter was called on for hearing, there was no appearance by the sponsor or on his behalf or of that of the appellant. I noted from the court file that the sponsor had sought expedition.

3.              I deferred consideration of the matter until later in the morning, by which point there was still no appearance by the appellant or the sponsor on their behalf. I am satisfied from the court file that due notice of the time, date and venue of the hearing had been given to the sponsor and to the appellants at the address given in the notices of appeal. In all the circumstances, in the absence of any explanation for a failure to attend I was satisfied that it would be fair and in the interests of justice to proceed to determine the appeal in the absence of any representation.

4.              I accept that there has been a delay in the promulgation of this appeal. This was as a result of matters which came to my attention following a hearing on 8 October 2024. On that occasion appeals were listed before me in which the sponsor did not attend. These were also appeals against the decision by an Entry Clearance Officer to refuse to issue family permits pursuant to Appendix EU-FP where, as here, there is a dispute as to the authenticity of birth certificates supplied and where, as here, documents were supplied from the court in Pakistan purporting to address the issues. On considering the court files, I became aware that in those cases all the sponsors appeared to live at the same address in Motherwell as the sponsor in these appeals. Further, in all these cases there was no appearance by the sponsor. On making further enquiries it transpired that there were a significant number of appeals of a similar nature in which the sponsors were all resident at the same address in Motherwell.

5.              The appellants' case is that they are the children of the sponsor, an EEA national exercising treaty rights in the United Kingdom and who has been granted leave to remain under Appendix EUSS. The Secretary of State refused the applications on the basis that the Pakistani Birth Certificates, marriage certificate for the sponsor and the death certificate for the appellant's father had been found not to be genuine as a result of checks which had been carried out. The respondent was satisfied that, as all the supporting evidence submitted to confirm your relationship had been confirmed to be fraudulent, she was not satisfied that the appellants met the eligibility requirements for entry clearance.

6.              The initial grounds of appeal to the FtT are pro forma. They do not add anything of substance.

7.              Subsequent to that, the appellants each submitted bundles containing additional grounds, court documents relating to cases brought by each of them against the local Union Council.

8.              In the additional grounds, it is submitted that no verification report has been provided by the respondent, and thus there was no proper basis to impugn the documents provided.

9.              The appellants did not request an oral hearing before the FtT and the appeals were determined on the papers.

10.          The FtT considered the explanations put forward and the court documents in detail at [5] to [7]. It was noted that although a paper hearing had been requested, there was little evidence from the sponsor who claimed to be their mother. It also observed that they could have proved their relationship by DNA evidence [9].

11.          The FtT concluded: -

"12. I am not satisfied that the appellants have established that they are the sons of the relevant EEA citizen. In the light of the none genuine documents which had been initially presented I do not accept that the further documents submitted with the notice of appeal are genuine and that any mistake had been in the local registry."

12.          The appellants sought permission to appeal on the basis the FtT had erred in failing to take into account DNA test results sent to it. These grounds were supported by a letter from the Union Council dated 23 November 2022, stating that DNA tests of the appellants and sponsor had been carried out before new certificates had been issued. The FtT refused permission, noting that the letter of explanation post-dated the FtT's decision dismissing the appeal, and that no evidence had been provided to show that the eDNA report dated 25 January 2022 had been sent to the FtT as claimed.

13.          Permission to appeal was granted on 25 February 2024 after a renewed application for permission. The grant made the following direction:

At least 14 days before the hearing, the appellants must submit a witness statement to the Upper Tribunal setting out when, by whom, and by what method, the report dated 25 January 2022 was sent to the First-tier Tribunal and to the respondent. The appellants must append to this statement all relevant documentary evidence (such as proof of sending and receipt).

14.          There has been no compliance with this direction, nor any explanation for not doing so.

15.          The grounds of challenge are narrow. There is no proper challenge to the FtT's findings of fact on the evidence before it; the challenge is primarily directed at a claimed failure to take into account relevant evidence. Having considered the decision carefully, and bearing in mind that the burden was on the appellants to show that they are related to the sponsor, I concluded that the FtT gave adequate and sustainable reasons for not accepting that the appellants are not related to the sponsor as claimed. The appellants accept that incorrect documents were sent, otherwise there would have been no need for the court proceedings in Pakistan.

16.          It is not an error of law for the FtT not to take into account evidence not before it. Despite being given the opportunity to demonstrate that the DNA evidence had been submitted to the FtT before it reached its decision, the appellants have not done so. This is not, contrary to the grounds, a failure to take into account post-decision evidence.

17.          In the circumstances, I am not satisfied that that FtT failed to take into account evidence that had been supplied to it. I am not satisfied that the DNA test evidence referred to was in fact submitted before the FtT's decision was promulgated. Accordingly, it has not been shown that it was an error for the judge not to take this into account.

18.          Accordingly, I am not satisfied that the decision of the First-tier Tribunal involved the making of an error of law, and I uphold it.

Notice of Decision

1.              The decision of the First-tier Tribunal did not involve the making of an error of law and I uphold it.

Signed Date: 14 February 2025

Jeremy K H Rintoul

Judge of the Upper Tribunal