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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-003774
	First-tier Tribunal No: EA/03334/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

18 ^th February 2025

 

Before

 

UPPER TRIBUNAL JUDGE HANSON

 

Between

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

JUSTICE AMOAH

(NO ANONYMITY ORDER MADE)

Respondent

Representation :

For the Appellant: Mr McVeety, a Senior Home Office Presenting Officer.

For the Respondent: No appearance.

 

Heard at Manchester Civil Justice Centre on 14 February 2025

 

 

­ DECISION AND REASONS

 

1.        I am satisfied that Mr Amoah has been served with notice stating the time, date, and venue at this hearing, sent to the last known address provided by him for service of documents in this appeal. Despite that he failed to attend the hearing. No explanation has been provided, no application to adjourn has been made which had been granted, and there can be no expectation other than that the appeal will proceed. In considering whether this is in the interests of justice to do so, I find it is relevant that there is no explanation for his failure to attend, that valuable judicial and court resources have been made available, and the overriding objective. I find there is nothing to show that it is not in the interests of justice to proceed in Mr Amoah's absence.

2.        The Secretary of State appeals with permission a decision of the First-tier Tribunal promulgated on 28 June 2024, which allowed Mr Amoah's appeal against the refusal of his application for status under the EU Settlement Scheme (EUSS) as a close family member of an EEA national, his sponsor who is his mother Mrs Beatrice Agyemang ('the sponsor') a citizen of Italy.

3.        Mr Amoah is a citizen of Ghana who was born on 5 December 1988. The date of his application was 4 February 2023 which was refused on 29 August 2023 on the basis he could not qualify for settled status under the EUSS as it is stated that whilst there is evidence that he has resided in the UK periodically between January 2021 and April 2023, that is less than the five year period required to obtain settled status, and Mr Amoah had not provided sufficient evidence to confirm that he was resident in the UK and Islands prior to the specified date, 11 PM on 31 December 2020, and had therefore not demonstrated that he met the requirement for settled status on the basis of a continuous qualifying period of five years.

4.        The decision-makers went on to consider whether Mr Amoah was entitled to pre-settled status under the EUSS on the basis of completing a continuous qualifying period of less than five years residence in the UK and Islands, but found he did not qualify for pre-settled status as he had not provided sufficient evidence confirm that he was currently completing a continuous qualifying period of residence. It also noted Mr Amoah claimed to be over 21 and dependent on the relevant EEA citizen, but it was found he had not produced any evidence to demonstrate that he was dependent on the relevant EEA citizen or on their spouse or civil partner.

5.        The First-tier allowed the appeal, finding at [19]-[20] of the determination:

 

19. The Respondent did not query Ms Agyemang ability to support her son in his refusal. Clearly if he is unemployed as claimed he has to rely on others for financial support and there is no reason to suppose that this support would not come from his mother. If he is here without permission he cannot work.

 

20. He has to prove his case on the balance of probabilities and I consider that he is able to establish dependency. However he is not entitled to be treated as a family member as the evidence is not there to establish the relevant residency requirements and in particular that he was here before the specified date. At best he is entitled to pre-settled status as a joining family member. I therefore allow this appeal but make no fee award as the Appellants clearly provided insufficient evidence with his application.

 

6.        The Secretary of State sought permission to appeal asserting the Judge had materially erred in law having found at [20] that Mr Amoah was not entitled to be treated as a family member but in going on to allow the appeal on the basis he was to be treated as a join a family member. The Grounds assert it was unclear how Mr Amoah could be said to satisfy the requirements of Annex 1 of Appendix EU as he could not meet the relationship requirements at the specified date and it was unclear how he could have been said to have evidenced it prior to that date, and the Judge accepted at [20] that Mr Amoah had failed to show dependency at the relevant date.

7.        Permission to appeal was granted by another judge of the First-tier Tribunal the operative part of the grant being in the following terms:

 

2. The grounds assert that the Judge erred in materially misdirecting in law. It is argued that the IJ made inconsistent findings and reached inconsistent conclusions with reference to the relevant statutory framework. Noting paragraph 20 of the determination, I accept that this is arguable.

3. I found the concluding remarks at paragraph 20 to be difficult to reconcile and understand. The determination must set out clearly the basis for the decision reached which I do not find that it does, in this case.

4. The Respondent has identified an arguable error in law and permission to appeal is granted.

Discussion and analysis

 

8.        Appendix EU to the Immigration Rules is prescriptive. It sets out various classes of individuals who are entitled to settled or pre-settled status if they satisfy the relevant criteria.

9.        Mr McVeety accepted on behalf of the Secretary of State that it was difficult to understand how it had been said Mr Amoah was not a family member when he is the son of the EU national, although that per se was not sufficient to enable him to succeed.

10.    There is no appeal against the First-tier judge's rejection of part of the claim by Mr Amoah.

11.    In relation to the finding of the First-tier that the appeal should be allowed as Mr Amoah appears to have satisfied Appendix EU, as he met the requirements of dependency, Mr McVeety referred to Appendix EU, paragraph 14, entitled Persons eligible for limited leave to enter or remain as a relevant EEA citizen or their family member, as a person with a derivative right to reside or with a Zambrano right to reside or as a family member of a qualifying British citizen. That provision states an applicant will meet the eligibility requirements for limited leave to enter or remain where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application, condition 1 or 2 set out in the following table is met.

12.    Specific reference was made to Appendix 1 (b) (i) (aa) which reads:

 

(a)(i) the direct descendant under the age of 21 years (or who has turned 21 years of age since the specified date) of a relevant EEA citizen or of their spouse or civil partner; or

 

(ii) the direct descendant under the age of 21 years of a qualifying British citizen (or, as the case may be, of a relevant sponsor) or of their spouse or civil partner; or

 

(b)(i) (where sub-paragraph (a)(i) above does not apply) the direct descendant aged 21 years or over of a relevant EEA citizen (or, as the case may be, of a qualifying British citizen or of a relevant sponsor) or of their spouse or civil partner; and

 

(ii) (unless the applicant was previously granted limited leave to enter or remain under paragraph EU3 or EU3A of this Appendix as a child on the basis that sub-paragraph (a) above applied or under its equivalent in the Islands on that basis) dependent on (as the case may be):

 

(aa) the relevant EEA citizen (or on their spouse or civil partner) at the date of application or, where the date of application is after the specified date, at the specified date.

 

13.    The specified date is 11 PM 31 December 2020. The application was made on the 4 February 2023 which therefore required Mr Amoah to establish that he was dependent upon EEA citizen at the specified date. The judge makes no specific finding on this point and appears to have allowed the appeal on the basis of the evidence of dependency for a much later period.

14.    I find the First-tier Tribunal judge therefore erred in law in a manner material to the decision which was only allowed on the basis of the judge's finding in relation to dependency.

15.    In relation to the question of how the Upper Tribunal should proceed at this point, although Mr Amoah is not present, the judge's factual findings in relation to his age, the relationship, and date of application, are not contentious. As submitted by Mr McVeety, the difficulty Mr Amoah faces is that on the basis of the evidence provided, even taking his case at its highest, he could not establish dependency at the relevant point in time. That submission is factually correct.

16.    In all the circumstances, therefore, I find it is appropriate for the Upper Tribunal to proceed to a substantive hearing which, on the basis of the identified material legal error, means there is only one decision available, namely that Mr Amoah has failed to establish the required element of dependency at the specified date. I therefore substitute a decision to dismiss the appeal.

 

Notice of Decision

 

17.    The First-tier Tribunal had materially erred in law. I set that decision aside.

18.    I substitute a decision to dismiss the appeal.

 

C J Hanson

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

14 February 2025