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

A black background with a black square Description automatically generated with medium confidence

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-004398 UI-2024-004399
	First-tier Tribunal No: EA/00131/2024 EA/00132/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 17 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE LANDES

DEPUTY UPPER TRIBUNAL JUDGE ATHWAL

 

Between

 

(1)            ASAD HASNAIN

(2)            ZAIN ALI

(NO ANONYMITY ORDER MADE)

Appellants

and

 

ENTRY CLEARANCE OFFICER

Respondent

Representation :

For the Appellants: No legal representation; Mr Iqbal (sponsor) present

For the Respondent: Ms Simbi, Senior Home Office Presenting Officer

 

Heard at Birmingham Civil Justice Centre on 7 February 2025

DECISION AND REASONS

 

1.          The appellants appeal, with permission granted by Judge Boyes, the decision of First-tier Tribunal Judge Young-Harry, promulgated on 30 July 2024 dismissing the appellants' appeals against the Respondent's refusals of 8 July 2019. The appellants' applications for family permits as the extended family members of an EEA national were made on 20 May 2019.

Error of Law

2.        The appellants are brothers. At the time of the application, the second appellant was under the age of 18 years old. It is their case that the Sponsor, Mr Safdar Iqbal, an Italian national, is their paternal first cousin, their parents are dead and that they are dependent upon him for their essential needs.

 

3.        Judge Young-Harry was not satisfied that the appellants were related to the Sponsor as claimed but was satisfied that they had demonstrated that they were dependent on the Sponsor to meet their essential needs.

 

4.        The Sponsor represented the appellants, they were not legally represented. The Sponsor confirmed that the appellants case was set out in the grounds for permission to appeal, and that he was relying on that document.

 

5.        Ms Simbi did not have a complete set of documents, and she was unable to read the birth certificates clearly in the copy documents she had. The Sponsor was unable to provide the missing documents so we emailed the consolidated bundle and the appellants' First-tier Tribunal bundle to her. Ms Simbi confirmed that she had sufficient time to consider the documents and was able to proceed with the hearing.

 

6.        The first ground asserts that there was a procedural error because the Judge failed to consider the DNA reports submitted by the appellants on 5 July 2024. We had a copy of the history report from the First-tier Tribunal's database, Aria. It did not record the receipt of the DNA bundle in July 2024 or at all, before it was submitted with the documents for this hearing. We informed the Sponsor of this and referred him to the appellants' bundle. We explained to him that the bundle did not contain evidence that the DNA report had been served as claimed. The email provided at page 38 of the Appellant's bundle recorded that the first appellant attempted to send the DNA report to the Tribunal on 27 August 2024, after the date of decision, but the address on the email was incorrect, the "e" was missing from "justice". The Sponsor was not able to assist further. He stated that he would need to call the appellants to clarify this matter. We informed the Sponsor that it was not necessary to do so at this stage.

 

7.        We turned to the remaining five grounds, which can be considered together. It was the appellants' case that the Judge erred in law by failing to consider all the appellants' evidence cumulatively. The family registration certificate should have been read against the corresponding birth certificates, national identity cards, and confirmation letter from the local government. The Judge had not adequately demonstrated that she considered the witness statements and the confirmation letter. The appellants argued that the Judge had not provided adequate reasons for why the birth certificates did not show the relationship between the appellants and the Sponsor.

 

8.        As the appellants were unrepresented, we discussed the appeal with Ms Simbi, explaining to the sponsor what we were doing. We pointed out that when considering whether the appellants had shown that they were related to the sponsor, the judge simply had not considered the witness statements at all. Those witness statements were detailed and explained the relationship. Of course, the judge was not bound to find the evidence in the witness statements credible, but if she did not find the evidence credible, she needed to explain why that was so. She had not. We noted the judge must have found that the appellants and the sponsor were credible on the issue of dependency. In addition, we did not understand why the judge said that the birth certificates did not clearly show the relationship. The judge had not explained what she meant. We had the same copies of the birth certificates as she had and on their face, they were clear.

 

9.        Following our discussions, Ms Simbi agreed that:

 

a.        The Judge had not provided adequate reasons for why the birth certificates did not establish the claimed relationships.

b.       The Judge had not demonstrated that she had taken into consideration the witness statements and the letter of confirmation.

c.        The Judge's findings were inconsistent. The fact that the Judge was satisfied that the appellants were dependent on the Sponsor, supported their assertion that they were related. The Judge failed to provide reasons for why her findings on dependency did not support the appellants claim about their relationship to the Sponsor.

 

10.    These material errors of law meant that Judge Young-Harry's decision had to be set aside. There was no error with respect to her findings on dependency. Those findings were preserved. Ms Simbi and the sponsor agreed that the remaking could take place straight away in front of us; there needed only to be limited fact finding.

Remaking

11.    Ms Simbi confirmed that she had considered the DNA reports. She was satisfied that the reports established that the appellants were related to the Sponsor's father, Muhammad Hayat and that the Sponsor was the biological child of Muhammad Hayat.

 

12.    Ms Simbi also accepted that birth certificates were provided for both appellants, the Sponsor, the appellants' father Khizer Hayat, and Muhammad Hayat. The birth certificates corroborated the evidence provided in the witness statements, and the letter of confirmation.

 

13.    The evidence when considered cumulatively established that Khizer Hayat and Muhammad Hayat were brothers and that the appellants and the Sponsor were first cousins.

 

14.    The letter of refusal states that the Sponsor receives assistance in meeting his own essential needs in the UK because he is receiving council tax support and would not therefore be able to continue to support the appellants financially in the UK. The sponsor had set out in detail in the evidence his and his wife's financial position and explained how he could provide for the appellants. We clarified with Ms Simbi whether this was a factor that the Home Office guidance stated should be considered when determining applications by extended family members under the 2016 Regulations. Ms Simbi confirmed that the only factors that were relevant were relationship, and dependency. She conceded that those requirements were met. We observe that approach (i.e. that as long as there is a genuine dependency the financial circumstances of the sponsor are not directly relevant) is consistent with the 2019 Home Office guidance on extended family members of EEA nationals.

 

15.    In light of the DNA reports and the birth certificates taken together with the witness statements we found that the appellants had conclusively established that they were related to the Sponsor. Judge Young-Harry's findings on dependency were preserved. Bearing in mind Ms Simbi's concession we had no need to consider the details of the sponsor and his family's finances. We are therefore satisfied that the appellants are the extended family members of the sponsor as defined in regulation 8 of the Immigration (European Economic Area) Regulations 2016 as preserved and were, at the date of application and decision entitled to family permits under regulation 12 of those regulations.

 

16.    On remaking we allowed the appeal under the Immigration (European Economic Area) Regulations 2016.

 

Notice of Decision

 

The judge's decision involved the making of an error of law and is set aside.

The decision is remade by allowing the appeal under the Immigration (European Economic Area) Regulations 2016.

 

Fee award

As the appellant has succeeded, we have considered making a fee award, but we make no fee award as further material was provided by the appellants.

 

 

H.Athwal

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

17 February 2025