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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-002458
	First-tier Tribunal No: EA/03584/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 20 ^th of February 2025

 

Before

 

UPPER TRIBUNAL JUDGE HANSON

DEPUTY UPPER TRIBUNAL JUDGE COLE

 

Between

 

AFZAAL AHMED

(ANONYMITY ORDER NOT MADE)

Appellant

and

 

ENTRY CLEARANCE OFFICER

Respondent

Representation :

For the Appellant: Mr S Islam, the Sponsor

For the Respondent: Ms C Newton, Senior Home Office Presenting Officer

 

Heard at Manchester Civil Justice Centre on 11 February 2025

DECISION AND REASONS

 

Background

1.              On 14 January 2020 the Appellant applied for leave to enter the United Kingdom as an extended family member (EFM) of Shahid Islam an Italian citizen (the Sponsor) under the Immigration (European Economic Area) Regulations 2016 (the 2016 Regulations).

2.              The Appellant's application was refused by the Respondent by decision dated 30 January. He appealed to the First-tier Tribunal.

 

3.              By decision dated 9 April 2024 Judge Fox dismissed the Appellant's appeal.

 

4.              The Appellant challenged the decision of Judge Fox and permission to appeal was granted by First-tier Tribunal Judge Hollings-Tennant.

 

5.              By decision dated 15 November 2024 Upper Tribunal Judge Hanson set aside the decision of Judge Fox. Judge Hanson found that there was no legal error in the Judge's finding that the Appellant had not been a member of the Sponsor's household. However, it was agreed that the Judge had failed to make findings as to whether the Appellant was financially dependent on the funds remitted by the Sponsor to meet his essential living needs.

 

6.              Thus, the Appellant's appeal came before us for remaking.

The Hearing

 

7.              The Sponsor attended the hearing in person. He was called to give any further evidence and was cross-examined by Ms Newton. The Sponsor confirmed that he understood the interpreter who was speaking Urdu.

8.              In his additional evidence, the Sponsor confirmed that the Appellant lives alone in Pakistan as he is separated from his wife. The Sponsor also confirmed that he lives alone as his children live separately from him. The Sponsor provides support for his children.

9.              Following the conclusion of the evidence, both parties made submissions.

 

Submissions

 

10.          Ms Newton submitted that a holistic approach to dependency must be taken. She submitted that several factors needed to be considered to assess whether dependency had been established as genuine. Ms Newton accepted that the Sponsor sent money to the Appellant, but she submitted that this was not sufficient to prove dependency. She highlighted that there were no accounts provided relating to the farm business before it ceased trading. Ms Newton submitted that little weight should be placed on the letters relating to job applications made by the Appellant as they made no sense. She also stated that this evidence was contrived to try to show that the Appellant cannot work. Ms Newton submitted that there was insufficient evidence regarding the Sponsor's income and expenditure and that this brings into question the genuineness of the dependency.

11.          In response to our questions, Ms Newton once again confirmed that the Respondent accepted that the Sponsor transferred funds to the Appellant. She also confirmed that that Respondent accepted that the Appellant lives in a house owned by the Sponsor.

 

12.          The Sponsor made generic submissions stating that he has been supporting the Appellant and that he has sufficient income to support the Appellant.

 

Law

 

13.          The relevant parts of the 2016 Regulations state:

 

"Extended family member"

8.-”(1) In these Regulations "extended family member" means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies a condition in paragraph (1A), (2), (3), (4) or (5).

...

(2) The condition in this paragraph is that the person is-”

(a) a relative of an EEA national; and

(b) residing in a country other than the United Kingdom and is dependent upon the EEA national or is a member of the EEA national's household; and either-”

(i) is accompanying the EEA national to the United Kingdom or wants to join the EEA national in the United Kingdom; or

(ii) has joined the EEA national in the United Kingdom and continues to be dependent upon the EEA national, or to be a member of the EEA national's household.

 

14.          We have had regard to Court of Justice of the European Union (CJEU) case of Yunying Jia v Migrationsverket, Case C-1/05 where the European Court considered "dependence" under Article 1(1)(d) of Directive 73/148/EEC and said this was to be interpreted to the effect that "dependent on them" meant that members of the family of an EU national established in another member state within the meaning of Article 43 of the EC Treaty, needed the material support of that EU national, or his or her spouse, in order to meet their essential needs in the state of origin of those family members or the state from which they had come at the time when they applied to join the EU national. The Court said that Article 6(b) of the Directive was to be interpreted as meaning that proof of the need for material support might be adduced by any appropriate means, while a mere undertaking by the EU national or his or her spouse to support the family members concerned need not be regarded as establishing the existence of the family member's situation of real dependence.

 

15.          We have also considered the case of Reyes v Migrationsverket (Directive 2004/38/EC) Case C-423/12 where the CJEU held that the fact that a Union citizen, regularly and for a significant period, paid a sum of money to the descendant, necessary in order to support her in the country of origin, was (on the facts of that case) enough to prove that the descendant was in a real situation of dependence. A Member State could not require the descendant to establish that she had tried without success to find work or obtain subsistence support from the authorities of the country of origin or otherwise support herself.

 

Analysis & Remaking

16.          In remaking the decision, the burden of proof is on the Appellant. It is for him to establish that any of the specific requirements of the 2016 Regulations are met. The standard of proof is the balance of probabilities which is the civil standard of proof.

 

17.          The sole issue is whether the Appellant is financially dependent on the Sponsor in that he needs the material support of the Sponsor to meet his essential needs.

 

18.          There is documentary evidence demonstrating that the Sponsor has been regularly sending money to the Appellant since December 2017 and the Respondent accepts this fact. However, we agree with the Respondent that the regular transfer of money from the Sponsor to the Appellant does not necessarily mean that the Appellant is dependent on the material support of the Sponsor for his essential needs.

 

19.          There was documentary evidence providing some detail about the Appellant's circumstances in Pakistan.

 

20.          There are receipts for groceries. There are electricity and gas bills. These provide some rather general support for the Appellant's claim.

 

21.          There are bank statements from Allied Bank in the Appellant's name covering the period from February 2020 to February 2024. These show that the only deposits are the money transfers from the Sponsor. These documents offer support for the Appellant's account of his circumstances in Pakistan.

 

22.          There is evidence of the Appellant's father's death in November 2016. There is evidence that the Appellant ran an agricultural business from 1 December 2016 to 30 November 2017 before it was closed. This supports the account given by the Appellant and the Sponsor.

 

23.          There is evidence that the Appellant lives in a property owned by the Sponsor, and the Respondent accepts this fact.

 

24.          As well as the documentary evidence, there was the Witness Statement of the Sponsor. This evidence was tested by cross-examination and was not significantly challenged by Ms Newton in her submissions. Thus, this evidence can be considered along with the documentary evidence.

 

25.          We agree with Ms Newton that the two letters regarding the failure of the Appellant to obtain employment do have the appearance of being contrived. We accept that the Appellant suffers from asthma and that this could inhibit his ability to find certain types of employment. However, it is unclear how having asthma would stop the Appellant working as an "office boy" making refreshments. It must be remembered, though, that the reasons for dependency are not necessarily relevant, and the Appellant is permitted to simply choose not to take up employment (see Lim (EEA -dependency) [2013] UKUT 437 (IAC)).

 

26.          Drawing all the threads together, we find that, on balance, the Appellant has proven his circumstances are as stated. The Appellant is a single man (he is separated from his wife) with no dependents. He has always struggled in Pakistan financially. He had to take over the family farming business after his father died. The business failed and it is said that it was at this stage that the Sponsor chose to start supporting the Appellant as he was concerned for his well-being. Since this time the Appellant has lived in a property owned by the Sponsor and the Sponsor has sent regular money to support the Appellant. The Appellant has no source of income other than the funds transmitted to him by the Sponsor.

 

27.          We find that this account is sufficiently reliable to be accepted. Also, it is supported by the documentary evidence.

 

28.          There is limited evidence regarding the Sponsor's personal circumstances in the UK. Bank statements have been provided by the Sponsor, and these provide some insight into his financial situation. It is also relevant that the Sponsor has been able to afford to send the Appellant money regularly for over seven years and he has been able to provide him with a home to live in. We find that the Sponsor has demonstrated that there is no issue of affordability and there is nothing to undermine the genuineness of the dependency.

 

29.          Overall, when considering all the evidence in the round, we find that there is sufficient evidence to conclude that the Appellant has proved to the civil standard of proof that he is dependent on the Sponsor. The Sponsor provides financial support for the Appellant and provides him with a home.

 

30.          We find that the Appellant has established that he requires the material support of the Sponsor to be able to meet his essential needs. We find that the evidence of the Appellant's circumstances in Pakistan establishes the Appellant's dependency on the Sponsor. We therefore accept, on balance, that the Appellant requires the material support of the Sponsor to meet his essential needs.

 

31.          Therefore, we find on the balance of probabilities that the Appellant does satisfy the relevant requirements of Regulation 8 of the 2016 Regulations.

Notice of Decision

 

We remake the decision and allow the appeal.

 

C R Cole

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

17 February 2025