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You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> UI2024003167 & Ors [2024] UKAITUR UI2024003167 (27 November 2024) URL: http://www.bailii.org/uk/cases/UKAITUR/2024/UI2024003167.html Cite as: [2024] UKAITUR UI2024003167 |
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI- 2024-003167 UI-2024-003168 UI-2024-003169 |
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FtT No: EU/54212/2023 LE/01253/2024 EU/54213/2023 LE/01255/2024 EU/54214/2023 LE/01254/2024 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 27 November 2024
Before
UPPER TRIBUNAL JUDGE PINDER
Between
(1) GIDEON OWUSU
(2) PRINCE YAMOAH
(3) EUNICE YAMOAH
(NO ANONYMITY ORDER MADE)
Appellants
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation :
For the Appellant: Mr A Malik, of Counsel instructed by RBN Solicitors.
For the Respondent: Ms LeCointe, Senior Presenting Officer.
Heard at Field House on 17 October 2024
DECISION AND REASONS
1. The Appellants appeal with the permission of First-tier Tribunal Judge Dempster against the decision of First-tier Tribunal Judge Sethi. By her decision of 10 th May 2024, Judge Sethi ('the Judge') dismissed the Appellants' appeals against the Respondent's decisions to refuse them family permits as family members of an EEA citizen resident in the UK, namely their father who holds pre-settled status in the UK as an Italian citizen.
Background
3. The Appellants, citizens of Ghana, are all over the age of 21 years old, being respectively 28, 27 and 23 years old at the time of the Respondent's decisions. The Appellants' applications were refused on 24 th April 2023 for the first Appellant and 13 th June 2023 for the second and third Appellants. In the decisions, the Respondent took issue with whether each of the Appellants was related as claimed, to their Sponsor, their father, and secondly, whether each of the Appellants was dependent upon the Sponsor with reference to the definition of dependent contained in Appendix EU (FP). The Appellants each appealed against those decisions.
The Decision of the First-tier Tribunal Judge
(i) The Sponsor's love, commitment and sense of duty towards the Appellants can be in no doubt and the evidence of contact in the form of WhatsApp communications discloses that the family members share a close emotional bond [21];
(ii) The Appellants have received financial remittances from the Sponsor as is demonstrated through the money transfer remittances and as acknowledged by the Respondent [21];
(iii) It was not disputed that the first Appellant is a student in China. The Judge also took note of the money transfer receipts showing funds sent by the Sponsor to China, including to two universities in payment of the first Appellant's course fees. The Judge acknowledged the Appellant's BA degree certificate completed in July 2022 in Medicine and Surgery and the Sponsor's oral evidence that the first Appellant's was currently studying for an Masters degree. Drawing that together, the Judge accepted that the documentary evidence demonstrated that the first Appellant received financial remittances from the Sponsor during his time in China and that the funds sent by the Sponsor during the period 2018 to early 2020 were used by him for the purposes of paying his rent, buying medications and for his general living expenses. The Judge also accepted that during the earlier years of the first Appellant's time in China, he was emotionally and financially dependent on the Sponsor to meet his essential living needs [27]-[28];
(iv) Having reminded herself that historic dependency alone does not establish dependency within the terms of Appendix EU (FP), the Judge went on to find that there was no further evidence of any WhatsApp communications or similar contact between the first Appellant and the Sponsor for the period after February 2020 until December 2022. Whilst noting that there was evidence of some financial remittances from the Sponsor, the Judge was concerned that there was no information before her after February 2020 as to the first Appellant's accommodation arrangements in China. The Judge found that the payment of course fees did not without more establish dependency. Whilst returning to the first Appellant's status as a student in China, the Judge found that that did not itself establish that he had no other sources of support or income [29]-[30];
(v) The Judge recorded the lack of information concerning the first Appellant's incomings and outgoings such that could shed light on his domestic circumstances and his essential living needs. The Judge concluded that, on the basis of limited evidence before her, she could not be satisfied that the first Appellant required the financial support of his father, in whole or in part, to meet his essential living needs in China at the specified date and continuing at the date of application in satisfaction of the requirements in Appendix EU (FP) [31].
(i) Whilst noting the evidence of some money transfers, their contact together and the Sponsor's visits to them, the Judge was not satisfied that the Sponsor had advanced a reliable account of the second and third Appellants' personal and domestic circumstances in Ghana [32];
(ii) The Judge noted the Sponsor's witness statement, which confirmed that the Appellants' biological mother had played no role in their lives and he alone had assumed responsibility for them. The Judge considered this together with the Sponsor's oral evidence that upon learning that the Sponsor sent funds to the Appellants' mother, she had effectively "reappeared". The Judge contrasted this with the first and second Appellants' respective witness statements, again stating that they did not know their mother's whereabouts and that she had played no role as a mother in their lives [33];
(iii) Having then considered the WhatsApp communications submitted in evidence, which made numerous references to the Appellants' mother (by both the Sponsor and each of the Appellants), the Judge found that this evidence was wholly inconsistent with the Appellants' claims to have been abandoned by their mother and that they knew nothing of their whereabouts. Similarly, that the Sponsor's evidence in this respect was unreliable. The Judge further noted that there was nothing in the evidence to demonstrate the extent of her role or provision in meeting the Appellants' essential living needs or as to her own circumstances in Ghana [35];
(iv) The Judge added that there was no evidence of communication between the Sponsor and the second and third Appellants or of any remittances sent to them directly by the Sponsor or via a third party for their benefit before 2021/2022. The Judge considered that it was concerning that there was no direct evidence from the person whom the Sponsor claimed to have assisted him with paying the utility bills and the second and third Appellants' rent with funds remitted from the Sponsor. Similarly, that neither the Sponsor nor the Appellants had made reference to this person in their respective witness statements. The Judge concluded that the evidence was insufficient to support the Sponsor's claim that the second and third Appellants lived in accommodation provided by him as establishing their dependency in whole or in part [36];
(v) The Judge found that there was a lack of information and evidence concerning the claimed financial support of the second and third Appellants since 2022 and concerning their circumstances as far as their studies or claimed apprenticeships were concerned.
The Appeal to the Upper Tribunal
8. Permission to appeal was granted by First-tier Tribunal Judge Dempster. Judge Dempster summarised that the Appellants asserted that the Judge failed to provide adequate reasons for her findings, had applied the wrong legal test to the issue of dependency and had had regard to immaterial matters. In respect of those grounds, Judge Dempster stated that these did not bear any scrutiny since the Judge had provided clear and cogent reasons for her findings and had clearly applied the correct legal tests.
9. Judge Dempster went on to consider the ground raised at paragraph 19 of the Appellants' grounds of appeal asserting that the Sponsor had not been afforded the opportunity to address the concerns of the Judge recorded at [32]-[37] of her decision, namely whether the second and third Appellants had retained contact with their mother, the involvement of a third party to assist the Sponsor in providing for the Appellants in Ghana and the absence of any evidence from the Appellants' uncle. Judge Dempster stated that it was apparent from the decision that the Judge had attached weight on these matters against the second and third Appellants and these issues had been material to the outcome of the appeal. Judge Dempster continued that if these matters had not been raised at the hearing, it was arguable that this amounted to a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings and permission to appeal was granted on that ground. Judge Dempster also set out that she expected the Appellants to substantiate those assertions at any hearing in the Upper Tribunal.
10. Importantly, for the reasons set out immediately below, Judge Dempster did not set out in her decision that permission to appeal was granted on limited grounds and her concerns were expressed as part of her reasons for granting permission.
11. At my request, Mr Malik first addressed me on the issue of whether the grant of permission was limited. Mr Malik developed the submissions contained in his skeleton argument, helpfully prepared for the hearing, and set out at §6 relying on Safi and others (permission to appeal decisions) [2018] UKUT 388 (IAC) and in particular, on the guidance summarised in the head-note. This was as follows:
(1)
It is essential for a judge who is granting permission to appeal only on limited grounds to say so, in terms, in the section of the standard form document that contains the decision, as opposed to the reasons for the decision.
(2) It is likely to be only in very exceptional circumstances that the Upper Tribunal will be persuaded to entertain a submission that a decision which, on its face, grants permission to appeal without express limitation is to be construed as anything other than a grant of permission on all of the grounds accompanying the application for permission, regardless of what might be said in the reasons for decision section of the document.
12. In light of the above cited guidance, I was persuaded that the grant of permission was not so limited despite Judge Dempster's observations made within her reasons. I considered that there were no good reason or exceptional circumstances to consider the grant of permission to appeal to the Appellants as having been limited. Accordingly, I permitted Mr Malik to address me on all of the grounds that he pursued on behalf of the Appellants.
13. Mr Malik addressed me in detail on the evidence that the Judge had considered and in particular on the WhatsApp communications. He submitted that the Judge's concerns in relation to the mother's role and the references to her in those communications had not been put to the Sponsor in questioning during the hearing for him to comment on and/or explain to the Judge. The same could be said of the Judge's concern that the Sponsor's evidence on the Appellants' mother had been inconsistent. Mr Malik submitted that clearly the Judge had placed significant weight on those communications and these formed part, at the very least, of her reasoning for not accepting the Appellants' claims as to dependency. Mr Malik reminded me that some of the WhatsApp evidence, if not all of it, had been adduced on the day of the hearing by those representing the Appellants and that there had been no objection from the Respondent to that evidence being admitted. He stated that there had not been an opportunity, in those circumstances, for the Appellants to address this evidence in their statements.
14. With regards to the grounds pursued asserting that the Judge had misdirected herself on the test of dependency, Mr Malik concentrated on the evidence that was before the Judge showing communications in 2022 and 2021. In answer to my queries, Mr Malik could not assist to address the Judge's concerns as to a lack of such evidence prior to 2021/2022, as recorded by her at [36].
15. The Respondent had filed and served a Reply to the grounds of appeal under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008. This Reply focused on the grounds addressed by Judge Dempster as having merit. In summary, the Respondent stated that the Judge had taken a holistic approach as to the core issue before her and that it was clear from a proper reading of the decision that the matters complained of had been raised during the hearing.
16. The Respondent invited the Tribunal to find that the Judge's findings were open to her with the burden of proof resting on the Appellants. The Respondent also invited the Tribunal to conclude that, if there had been any failure to raise any concerns at the hearing, any such error would not be material because it would have only played a small part in the Judge's reasons for finding against the Appellants. The Respondent concluded that the Judge had written a careful decision, which was legally sustainable and rational in its findings.
17. Before me, Ms LeCointe opposed the appeal responding to each of the grounds of appeal pursued by Mr Malik. Addressing the fairness issue first, Ms LeCointe noted that the WhatsApp evidence had been submitted on the day of the hearing in the FtT and that consent had been given for this to be admitted by the Respondent. She focused on the fact that the Appellants and the Sponsor should have expected there to be questions and concerns raised with regards to that evidence in light of its contents. The Sponsor and the Appellants' legal representatives would have been aware of the nature of the evidence and should have pre-empted any reasonable queries that arose from that evidence.
18. In relation to dependency and the relevant test, I was reminded of the guidance contained in the case of Volpi v Volpi [2022] EWCA Civ 464; [2022] 4 WLR 48 at [2] and that the Judge had undertaken a very careful and detailed assessment of the evidence before her. Ms LeCointe also submitted that the Judge was entitled to make adverse credibility findings given the lack of evidence. Her conclusions were open to her once she had drawn all of her findings and her assessment of the evidence, including the lacunae in the same.
19. Mr Malik did not make any further submissions in reply and I reserved my decision at the conclusion of the parties' respective submissions.
Analysis and Conclusions
20. Whilst the Appellants were not restricted from pursuing all of the grounds of appeal raised, as per my findings above, I agree with the concerns expressed by Judge Dempster as far as those grounds are concerned and Mr Malik's submissions on the issue of dependency.
21. It is clear that the Judge has given very detailed reasons for finding against all three Appellants on the issue of dependency, arising from a very comprehensive analysis of the evidence before her.
22. Specifically in relation to the first Appellant, Mr Malik focused on the Judge's findings accepting that the first Appellant was provided with funds by the Sponsor between 2018 and February 2020 for the purposes of paying his rent, buying medications and for his general living expenses ([28]). This was alongside other findings that the first Appellant was still a student at the relevant times, whose course fees had been paid by his father ([30]) and that during the earlier years of the first Appellant's time in China, he had been emotionally and financially dependent on the Sponsor to meet his essential living needs ([28]). In Mr Malik's submission, those findings supported a conclusion that the first Appellant met the definition of being dependent and that the Judge has materially erred in failing to give reasons for finding the opposite and/or had misdirected herself as to the relevant test of dependency.
23. It is correct that there was clear evidence of financial and emotional dependency before the Judge, as acknowledged by the Judge herself. I also acknowledge that the authority of Singh v SSHD [2022] EWCA Civ 1054, in which the Court of Appeal found at [23] of the judgment that the payment of course fees was, in principle, capable of being an essential need. Nevertheless, I am satisfied that the Judge was correct in reminded herself at [29] that the first Appellant needed to demonstrate dependency as at 31 st December 2020, continuing to the time of his application.
24. The first Appellant's application was submitted in March 2023 and I am satisfied therefore that the Judge has given sufficient reason for finding against the first Appellant, with her noting at [29] the absence of WhatsApp evidence after February 2020 until December 2022; at [30], the lack of information and/or evidence concerning his accommodation arrangements and any additional expenses after February 2020; and at [31], the lack of information and/or evidence more generally concerning his financial circumstances. Considering the issue of dependency, the relevant times for demonstrating dependency and the Respondent's concerns raised in the Respondent's decision, I consider that the Judge's concerns and reasons for finding against the first Appellant were reasonably open to her.
25. I also remind myself of the guidance from Green LJ in the Court of Appeal in Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at [26], which specifically provided as follows:
(i) the FTT is a specialist fact-finding tribunal. The UT should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49 [2008] 1 AC 678 at paragraph [30](...)
26. Similarly, the Judge's concerns on the gaps in the documentary evidence concerning any contact between the second and third Appellants and their father prior to 2021/2022, as identified by the Judge at [36], and concerning the second and third Appellant's circumstances more generally since 2022 (recorded at [37]).
27. I now turn to the Appellants' second ground arguing procedural unfairness in how the Judge approached the conflicts in the evidence before her concerning the presence and any role played by the Appellant's mother, the lack of evidence from the third party and the lack of the evidence from the Appellants' uncle for when the second and third Appellants lived with him.
28. Mr Malik first submitted that the contents of the WhatsApp evidence, which had been adduced on the morning of the hearing, had not been put to the Sponsor in questioning, nor had the Judge's concerns on this evidence. It is appropriate to note Judge Dempster's observation at [3] of her grant of permission, which put the Appellants on notice that they would be expected to substantiate the assertions made in the grounds of appeal on this issue. No such substantiation was before me, either prior to the hearing or on the day of the hearing.
29. Furthermore, it is plain from [33] that the Sponsor was questioned on the Appellants' mother and whether she was indeed present, in some way, in the Appellants' lives. The Judge recorded the Sponsor's oral evidence, which included that upon learning that the Sponsor sent funds to the Appellants, she had "reappeared". That he had then informed his children that she was their mother, that they should be respectful to her, albeit he considered she was only interested in their money. As the Judge noted herself, the Sponsor's oral evidence was in contrast to his written statement and that of each of the Appellants, as summarised above at §7(ii). From the Judge's record of the Sponsor's oral evidence, I am satisfied therefore that the Sponsor was questioned on the presence and any role played by the Appellants' mother.
30. Moreover, the concerns held by the Judge at [33]-[35], as summarised above, all stemmed from the evidence before her adduced by the Appellants. The burden of proof rests with the Appellants and the issue of dependency was clearly raised from the outset by the Respondent. Thus, I am satisfied that the Appellants had had ample notice of the issues that would need to be determined by the Judge. Similarly, that they had had ample opportunities to present the evidence that they wished to rely on in support of their claims. The Sponsor was then provided with a further opportunity as part of his oral evidence to provide further detail as to the mother's presence, which he did, as recorded by the Judge at [33].
31. In those circumstances, I reject the submission that the Judge was procedurally unfair. She was entitled at [35] to take into consideration the conflicts in the Appellants' own evidence, to reject the Sponsor's oral evidence recorded at [33] as unreliable and to note the lack of evidence to demonstrate the extent of the mother's role or the provision by her, if any, in meeting the second and third Appellants' needs in.
32. Mr Malik's submission that the Appellants had not had any opportunity to amend or provide supplementary statements to respond to the WhatsApp evidence, because this had been adduced on the morning of the hearing, is entirely without merit and misconceived. The WhatsApp evidence and the queries that this raised against the Appellants' statements was adduced by those representing the Appellants, both legally and on their behalf through the Sponsor. That was a matter therefore for those representing the Appellants and one which they should have anticipated. No application for an adjournment was made to the Judge on the day of the hearing.
33. Similarly, the Judge's concerns set out at [36] relating to a lack of evidence from the third party who was said to have assisted the Sponsor and from the Appellants' uncle, also arose from her assessment of the totality of the evidence before her and following correct self-directions that it is for the Appellants to demonstrate and support their claims. There can be no procedural irregularity when the Appellants were placed on notice that their domestic and financial circumstances were in issue.
34. For all of the reasons above, I find that the Judge's assessment of the Appellants' evidence which was before her, was correct and there was no procedural unfairness.
35. In the circumstances, I dismiss the Appellants' appeals and confirm that the decision of the Judge shall stand.
Notice of Decision
36. The Appellants' appeals are dismissed. The Judge's decision to dismiss the Appellants' appeals stands.
Sarah Pinder
Judge of the Upper Tribunal
Immigration and Asylum Chamber
20.11.2024