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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case Nos: UI- 2023-002696 & UI-2023-002698
	First-tier Tribunal Nos: EA /00743/2023 & EA/00749/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 19 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE RINTOUL

 

Between

 

Hussain Ihsan (First Appellant)

Raja Ismail (Second Appellant)

(NO ANONYMITY ORDER MADE)

Appellants

and

 

Entry Clearance Officer

Respondent

Representation :

For the Appellants: No appearance

For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

 

Heard at Edinburgh on 8 October 2024

 

DECISION AND REASONS

1.              The appellants appeal with permission against the decision of the First-tier Tribunal ("FtT") promulgated on 16 May 2023, dismissing their appeals against the decisions of the Secretary of State made on 7 December 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, Mr Zahoor Elahi Awan ("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 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 was 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.

3.              As an aside, it is surprising that the appellant's father has made no attempt to pursue the appeal, given that it relates to his sons.

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 the hearing. On 10 October 2024, two sets of linked 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.

5.              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. Given also the allegations made in this case that documents had been served well before the decision of the FtT, it was necessary to undertake enquiries of the relevant HMCTS databases to determine what bundles were served and when.

6.              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 birth certificates issued to the appellants showed that he is a Spanish national, yet the Home Office records had shown that he had acquired a Spanish passport in 2020 and they would not expect his nationality to be shown as Spanish on the birth certificate issued in 2004 in respect of Raja Ismail and 2005 in respect of Hussain Ihsan. Accordingly, the Entry Clearance Officer was not satisfied that either appellant was related to the sponsor as claimed.

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

8.              In the additional grounds, said to have been submitted to the FtT with an appellants' bundle by email, it is stated that by the time the appellants' birth certificate were issued, their father had renounced his Pakistani nationality and obtained Spanish citizenship. It is stated also [4] that the birth certificates do not mention the CNIC number, which is typically used to identify a Pakistani national, because he no longer is. It is observed also that there was no document verification report [5] and that in any event, the appellants had brought a civil suit against the Union Council of Pakistan, the result of which is that it accepted that an error had been made and the sponsor's Spanish passport number had been added to the birth certificate.

9.              In those grounds there is a request that the papers relating to that civil suit should be taken into account. It is also submitted that there had been a breach of procedural fairness in that the appellants had not been given an opportunity to respond to the allegations put by the Entry Clearance Officer before a decision was made. It is also averred there is breaches of Article 8 of the European Convention on Human Rights in terms of interference with their right to respect for family life, breach of Regulation 7 of the Immigration (European Economic Area) Regulations 2016 and an incorrect application on burden and standard of proof.

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

11.          The FtT found that it was not surprising that the sponsor's nationality is shown as Spanish on the document [15] but noted that neither birth certificate was issued at the time when either appellant was born in 2004/2005 and that what were provided was simply copies. It is observed also [17] there is no explanation for this and that the certificates were issued after a significant period of time had elapsed after their births and these were the only documentation purporting to show any link with the sponsor. The judge concluded:-

"23. The fact that the birth registration certificates adduced are not original documents and they were produced so many years after the birth of the Appellants, without further explanation, in addition to the generic grounds of appeal, lead me to conclude that the birth registration certificates are not genuine."

12.          The appellants sought permission to appeal on the basis the judge had erred in considering an irrelevant issue - the date of which the birth certificates were issued - which had not been raised by the Home Office, it not being a requirement in Pakistan to register a birth immediately after the birth in Pakistan. It is also averred that the FtT had erred in failing to mention the bundle sent on 15 May 2023 by email (see [6] above), which contained detailed grounds of appeal and documents relating to Civil Court cases demonstrating that genuine birth certificates had been submitted.

13.          It is averred that to refuse an application on the basis of deception, the underlying facts must be established to the civil standard, which had not been done and that no false document had been submitted. It is also averred that they should have been given an opportunity to answer any questions beforehand and that there was no document verification report.

14.          On 27 June 2023, the FtT granted permission but noted:

"5. I am not convinced that the documents in the bundle show what it is claimed however the appellants are entitled to an explanation as to those documents and their place in the decision."

15.          On 19 July 2023 the Secretary of State replied to the grant pursuant to Rule 24 of the Tribunals Procedure (Upper Tribunal) Rules 2008, stating that the FtT's finding at [16] and [17] with respect to the birth certificates is simply a logical progression of the issue raised by the Entry Clearance Officer on the findings open to him. It is also observed that the two screenshots of the email records provided with the grounds did not establish that a bundle had been sent on 15 May 2023 as claimed.

16.          I have considered carefully the screenshots. They do not indicate when they were taken which makes it difficult to ascertain when some of the entries were made as they are dated by reference to day of the week, not a fixed date . The most recent entry in the inbox with a date is "16/05/2023 OOC Pakistan EA/00749/2023 plus EA/00743/2023" from Edets Birmingham AIT Tuesday 9.28. I conclude that 16 May 2023 is the date when the edecision was received after promulgation. But, without knowing what date of the screenshot, it is not possible to ascertain on which "Tuesday" date the decision was received and whilst there is an entry in the screenshot of the "sent" inbox relating to the two appeals the date on which this email and its attachments cannot be ascertained as the date give is simply "Monday 22.46."

17.          In the circumstances, I cannot be satisfied that the bundle said to have been sent on 15 May 2023 was in fact submitted before the FtT's decision was promulgated. Accordingly, it has not been shown that it was an error for the FtT not to take this into account. Further, I am satisfied that in the circumstances of this case, where the issue was whether the appellants were related to the sponsor, that the FtT was entitled to take note of the fact that the birth certificates were issued substantially after the children were born and to attach little weight thereto The documents in the bundle simply do not address that or provide adequate evidence of the claimed relationship between the appellants and the sponsor.

18.          Further, and insofar as it is argued that it is common in Pakistan for births to be registered long after the birth, this is simply an assertion in the grounds; there is no evidence put forward to support this. The FtT was manifestly entitled to note that the certificates were issued many years after the children's birth and to doubt them not least as they were not the originals. That they are not the originals is not a matter which has been addressed.

19.          Contrary to what is said in the grounds, there is no suggestion that there has been any allegation of any forgery or deception by the respondent. All that the FtT found, and indeed what the respondent concluded, was that the documents provided with the application, including the birth certificates, were not sufficient to demonstrate a paternal relationship between the appellants and the sponsor. That is not a finding of deception. Absent any finding of deception or dishonesty, it cannot be argued that this is a case which falls within the ambit of Balajigariv SSHD [2019] EWCA Civ 673.

20.          Accordingly, I am not satisfied that the decision of the FtT 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