IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005513
	First-tier Tribunal No: EA/00452/2022

 

 

THE IMMIGRATION ACTS

 

 

Decision & Reasons Issued:

 

21 ^st February 2025

 

 

Before

 

UPPER TRIBUNAL JUDGE LOUGHRAN

DEPUTY UPPER TRIBUNAL JUDGE BIBI

 

 

Between

 

ASIEDU PRECIOUS AFRIYIE

(ANONYMITY NOT ORDER MADE)

Appellant

And

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

 

For the Appellant: None

For the Respondent: Mr Madhi Parvar, Senior Home Office Presenting Officer

 

 

Heard at Field House on 7 February 2025

 

 

DECISION AND REASONS

1.              The Appellant appeals from the decision of First-tier Tribunal Judge S L Farmer ('the Judge') promulgated on 09 May 2022, dismissing the Appellant's appeal against the Respondent's decision refusing to grant her an EU Settlement Scheme (EUSS) family permit dated 18 November 2021

2.              Permission to appeal was granted by First-tier Tribunal Judge Austin on 29 November 2024. He notes that although the application was prepared on 30 May 2022 it was not put before him for a decision until 29 November 2024. Like First- tier Tribunal Judge Austin we were also not given a reason why there was such a delay and agree with him that it is a matter of regret.

3.              At the hearing we confirmed that we were satisfied that there was a material error of law in the decision of the First-tier Tribunal. Our reasons for that decision are set out below.

Background to the appeal

4.              The Appellant is a citizen of Ghana born on 15 June 2005. On 07 July 2021 the Appellant applied for an EUSS family permit to join her sponsor, in the UK. It is the Appellant's position that she mistakenly stated on the application form that her sponsor was her mother, Mrs Janet Adjei, however, her mother is a national of Ghana who has pre-settled status as the family member of Mr Bawa Ali, her husband who is an EU national. The Appellant states that the correct sponsor is the Appellant's step-father, Mr Ali. She provided a copy of Mr Ali's identity card confirming that he was a Spanish national, however, this was not considered by the Respondent, as he was not named as the sponsor in the application form.

5.              On 18 November 2021 the Appellant's application was refused under the provisions of Appendix EU. It is the Respondent's position that the evidence provided by the Appellant in support of the application shows that the sponsor is a national of Ghana, a country outside the European Economic Area and Switzerland. As the sponsor is not an EU national, she cannot be considered as a 'relevant EEA citizen' as stated in Appendix EU to the Immigration Rules. The Appellant is therefore not eligible to apply for an EUSS family permit. This was the sole basis upon which the application was refused.

6.              At the First-tier Tribunal hearing, there was no presenting officer on behalf of the Respondent. The Judge recorded that this was 'for administrative reasons' and noted that there had been no application to adjourn. The appeal proceeded in absence of the Respondent. The matter proceeded on submissions only.

7.              The Judge identified that the burden of proof was on the Appellant and the standard of proof was on the balance of probabilities i.e. whether it is more likely than not the sponsor is an EU or Swiss citizen.

8.              The Judge found that the Appellant's application had been to join her mother and that there was no mention of her step-father, although he accepted that the Appellant's step-father's identity card was provided with the application. The Judge considered the Appellant's argument that the Respondent ought to have considered the documents in the round and found that she was related as the step-daughter of an EEA national. The Judge considered that the Respondent could not be criticised for failing to consider whether the Appellant could succeed in joining her step-father as he was not named on the form. The Judge also found that the Respondent could not be criticised for failing to consider the link to her step-father when the appeal was lodged.

9.              The Judge considered the evidence that was submitted by the Appellant in the bundle. The Judge noted that there was DNA evidence linking the Appellant to her mother, but that there was no evidence linking the Appellant's mother to her step-father. The Judge noted that a marriage certificate had been produced, but considered that the Respondent had not had the opportunity to verify it as it had been sent at the last minute. The Judge considered that the Appellant had not discharged the burden that the Sponsor is an EU national.

10.          The Appellant's grounds of appeal to the Upper Tribunal asserted that the Judge had erred in law as firstly, there was procedural unfairness. The Judge failed to inform the Appellant's legal representatives that the Judge was concerned that the Respondent has not had the opportunity to verify the marriage certificate. This document was relied upon by the Appellant as proof that she is a family member of a relevant EU national. It is the Appellant's position that the failure to inform the Appellant's legal representative of a concern adverse to the Appellant's case, deprived the Appellant of the opportunity to address the concern. The Judge failed to consider the marriage certificate on the ground that it was filed on the day of the hearing.

11.          The grounds further assert, had the Judge asked the correct question, i.e. whether the Appellant is a family member of a an EU national residing in the UK under EUSS, the Judge should have considered the relevant facts and evidence and, the Judge was selective in the evidence he considered in reaching his decision.

12.          As outlined above, permission was granted by First-tier Tribunal Judge Austin on all grounds on 29 November 2024. There was no Rule 24 response filed by the Respondent.

The hearing

13.          There was no attendance by the Appellant at the hearing and no application had been made to adjourn. The Tribunal received an email dated 27 January 2025 confirming that those who were instructed have come off record and were no longer representing the Appellant. We noted that a notice of the hearing was sent to the Appellant to a PO Box in Ghana and were therefore satisfied there was no reason to adjourn the hearing and it was in the interest of justice to proceed.

14.          At the outset of the hearing, Mr Parvar informed us that he had not been provided with a copy of the Appellant's bundle that was before the First-tier Tribunal. We arranged for a copy to be provided to Mr Parvar and gave him time to consider it.

15.          After considering the Appellant's bundle Mr Parvar accepted that the Judge had materially erred in law by failing to make any findings himself in respect of the matter in issue i.e. whether it is more likely than not that the Appellant's Sponsor is an EU or Swiss citizen.

16.           Mr Parvar's concession was properly made. We are satisfied that the Judge limited his consideration to whether the Respondent could be criticised for failing to consider the Appellant's application on the basis that her mother was her sponsor and not her step-father. In doing so, the Judge failed to address the issue in the Appellant's appeal and failed to have regard to clearly relevant evidence, such as the marriage certificate.

17.           Accordingly, First-tier Tribunal Judge Farmer's decision has to be set aside in its entirety and the decision re-made. Mr Parvar agreed that there are no findings which are capable of being preserved. The appropriate course, in such circumstances, is for the matter to be decided afresh and for the case to be remitted to the First-tier Tribunal.

Notice of Decision

18.          The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

19.          We set aside the decision of the First-tier Tribunal and remit the case to the First- tier Tribunal to be heard by a different Judge, with no findings of fact preserved.

 

 

T Bibi

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

18 February 2025