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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2024-000405, UI-2024-000406 UI-2024-000407, UI-2024-000408   First-tier Tribunal Nos: HU/56178/2023 LH/04383/2023 HU/56175/2023 LH/04382/2023 HU/56185/2022 LH/04385/2023 HU/56180/2023 LH/04384/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 20 March 2025

 

Before

 

UPPER TRIBUNAL JUDGE LANE

 

Between

 

FADI ALMAOUALDI, AFNAN KHANJAR,

YAHYA ALMAWALDI, YOUSSEF ALMAOUALDI

(NO ANONYMITY ORDER MADE)

Appellants

And

 

Entry Clearance Officer

Respondent

Representation:

 

For the Appellants: Ms Saifolahi

For the Respondent: Ms Newton, Senior Presenting Officer

 

Heard at Manchester Civil Justice Centre on 19 November 2024

 

 

DECISION AND REASONS

 

1.        The background to these appeals has been helpfully summarised by Upper Tribunal Judge Pickup (as he then was) when he adjourned the initial hearing on 26 April 2024:

 

1. The appellants, all nationals of Syria and resident in Saudi Arabia, comprise father, mother, and their two children.

 

2. By the decision of the First-tier Tribunal (Judge Pickering) dated 7.2.24, the appellants have been granted permission to appeal to the Upper Tribunal against the decision of the First-tier Tribunal (Judge Devlin) promulgated 13.11.23 dismissing their linked appeals against the respondent's decisions of 26.4.23 to refuse their applications made on 10.6.22 for family reunion to join the sponsor, Abdul Rahman Al-Mowldi, the son of the first two appellants and sibling of the two other appellants, who is in the UK with refugee status granted following his own entry to the UK in 2021 in company with his grandmother.

 

3. In summary, the grounds argue that the judge's criticism of the Appeal Skeleton Argument (ASA) and the respondent's Review and to redefine the issues was procedurally unfair and wrong in law in that the reasons given for finding that the third and fourth appellants could not succeed under Appendix Children

was mistaken.

 

4. The first ground argues that "despite the parties having agreed the issues in the ASA and review, the Judge's decision at [9-22] to ignore all of that and redefine for himself the issues in the appeal was both unfair and wrong in principle. Not only that, still worse, it was actually based on a mistaken interpretation of the applicable immigration rules so was wrong in any event."

 

5. The second ground argues that the judge erred in the approach taken to the appellants' status in Saudi Arabia and made multiple errors in his consideration of the appellants' "ability to lawfully remain in or enter another country," an issue that the judge allegedly defined for himself without reference or notice to the list of issues between the parties.

 

6. In relation to this second ground, the grounds state that the judge, "went beyond the issues as framed by the parties; he mis-recorded or overlooked parts of the evidence of one of the witnesses, which he then criticised for being vague and lacking in clarity; he made further wholly unwarranted (irrational) criticisms of the evidence; he criticised the appellants for failing to lead evidence of Saudi immigration law when the effect of Saudi immigration law was never in dispute between the parties, before himself speculating wildly about Saudi immigration law that the appellants could remain there permanently because three of them were born and had lived there their whole lives or because they were Syrian refugees (when Saudi Arabia is not a signatory to the Convention). Simply put, the Judge's failure to stick to the issues again led him to several errors which could have been avoided had the parties been put on notice."

 

7. In granting permission, Judge Pickering considered "Ground two is arguable in that the Judge appears to have failed to reconcile the temporary status of the appellants in Saudi Arabia and the significance of the sponsor's refugee status when considering family life continuing in Saudi Arabia. In relation to ground one it is arguable that there are matters of procedural fairness in the Judge exploring matters/making findings beyond the agreed issues without giving adequate opportunity for the parties to address these matters. Permission is granted.

 

2.        The adjourned initial hearing took place on 19 November 2024 at Manchester. The recording of the First-tier Tribunal hearing is in two parts and only the first part was available. Notwithstanding the absence of the second part of the recording, the parties agreed that the hearing should proceed. I heard the submissions of the parties and reserved my decision.

 

Ground 1

 

3.        The judge set out the appellant's schedule of issues at [9]. At [10], he then continued:

 

The Respondent did not propose any different issues in her Review. However, the references to paragraphs CNP.3.1(d) and CNP.3.2(c) of Appendix Child staying with or joining a Non-Parent Relative (Protection) of the Immigration Rules, seem to me to be misconceived. That Appendix - as its title suggests - sets out the requirements for a child to stay with or join a UK based non-parent relative with protection status.

 

4.        Over the following paragraphs, the judge discusses what he considers to be the issues in the appeal, concluding at [21]. Two of the issues identified by the judge (is Article 8 ECHR engaged?; Should entry clearance be granted on Article 8 ECHR grounds?) do not differ materially from the appellants' issues. The judge's list contains the question ' Do the first and second Appellants meet the requirements of paragraph GEN.3.2(2) of Appendix FM, for entry clearance on grounds of exceptional circumstances?'

 

5.        Ms Newton, for the Secretary of State, submitted that the redefining of issues by the judge did not constitute a procedural unfairness against the appellants because it had made no material difference to the outcome of the appeal. The judge had proceeded to find that the third and fourth appellants could not meet the requirements of the Appendix Children because the rules required that the appellants would live in 'in accommodation which the relative owns or occupies exclusively'; it was apparent that the sponsor was not old enough to own or lease property in the United Kingdom.' The appellants complain that this was a 'highly irregular procedural error and amounted to unfairness.' [grounds of appeal, [9]]. Ms Saifolahi, for the appellants, reiterated that submission at the initial hearing.

 

6.        I agree with Ms Newton. First, it is clear from record of proceedings taken by Mr Georget, counsel for the appellants at the First-tier Tribunal hearing, that the ability of the third and fourth appellants to meet the requirements of the Immigration Rules did not play a major part in the submissions made both representatives to the judge or (notwithstanding his exhaustive discussion of the issue) the Tribunal's decision. The appeal was, of course, brought on human rights grounds; the ability of the appellants to meet the Immigration Rules may have been a significant factor operating in their favour in the appeal but the ability of some of the appellants to meet the rule does not appear to have been submitted as a factor in the Article 8 ECHR analysis. To that extent, the judge's reformulation of the issues in the appeal did not materially affect the outcome of the appeals. As Ms Newton submitted, the appeals of all the appellants were always to be determined outside the rules. Indeed, I note from Mr Georget's record of the proceedings before the First-tier Tribunal that he submitted to the judge: ' Acknowledge PI point [public interest] in no rules. Can see it is unattractive - have sent a child ahead. That is one of reasons there is no rule for family reunion of parents siblings etc if u18, not to encourage. Referred to in KF. However, if there was safe alternative then S would not have been given refugee status.' [my emphasis]. It would appear that the inability of the appellants to meet the Immigration Rules was accepted by both parties.

 

7.        Secondly, whilst the grounds complain of unfairness, they do not suggest that the judge was wrong to find that the third and fourth appellants could not meet the rule on account of the failure of the sponsor to satisfy the maintenance and accommodation requirements. The appellants could either meet the rule or they could not and, if they sought to persuade the Tribunal that they could meet it, they should have attended the hearing with the evidence to prove that they could meet all parts of the relevant rules, including parts which the respondent may not have cited in the refusal decision.

 

8.        Thirdly, the grounds appear to acknowledge that the appellants could not meet the rules at [12]: 'It is submitted, even if the Judge had been correct in his analysis, then it was unfair and wrong in principle to take the approach he did and that that amounts to an error of law.' [my emphasis]. At [14], the grounds assert that, 'Clearly if, as appears likely, the Judge's concern was that a child could not own or occupy property, then he erred by failing to consider the correct definition above, which includes the critical "or family", meaning that one has to look at whether or not the property will be for the exclusive use of the whole family, not just the child.' The grounds focus exclusively on accommodation but the judge at [12] found that 'plainly, "[the Appellants could not] ... be accommodated and maintained adequately by [Abdul Rahman Al Mawdi], without recourse to public funds [or] in accommodation which [he] owns or occupies exclusively" [my emphasis]. In short, the appellants could not be maintained or accommodated by a sponsor who was born in 2012 and was aged 11 at the date of the First-tier Tribunal hearing. I find that the judge has not acted unfairly or in a way which prejudiced the appellants.

 

Ground 2

 

9.        I find the Ground 2 is without merit. Paragraph [16] of the grounds reads: 'The appellants' second ground is directed towards the way the Judge approached and determined the issue relating to the nature of their temporary status in Saudi Arabia and whether they could remain there in the long term.'

 

10.    First, contrary to what is asserted in the grounds, I do not find that the judge has failed to deal adequately with the evidence of the witnesses. The judge found some of the witnesses' evidence vague; in essence, he did not find that the oral evidence discharged the burden of proof; in particular, the witnesses did not provide sufficiently clear evidence of the immigration status of the appellants in Saudi Arabia. The judge did not err in law by failing the find either that the witnesses were telling the truth or lying; he simply found that their evidence did not assist the appellants in discharging the burden of proof. Moreover, it was for the judge to decide how much weight to put on the evidence of lay witnesses as to the operation of the immigration system in Saudi Arabia.

 

11.    Secondly, as with the appellants' failure to attend the hearing prepared to prove that they could meet the Immigration Rules, the appellants failed to obtain and present to the Tribunal evidence which might show that the first appellant was (i) by reference to the standard of proof of the balance of probabilities, likely to lose his job in Saudi Arabia and (ii) if he did, that the family would be unable to remain living there; (iii) that the United Kingdom sponsor could not return to live to live with the appellants in Saudi Arabia which the judge found he could do [207]; (iv) that, whatever status the family may have in Saudi Arabia in the future, that they, including the United Kingdom sponsor, would be removed by the Saudi Arabia authorities to Syria. I agree with Ms Saifolahi that the judge should not have speculated as to the workings of the immigration system in Saudi Arabia; it was, however, for the appellants to prove their case and their reliance in the appeals on the uninformed evidence of lay witnesses on these crucial issues was perhaps unwise.

 

12.    Thirdly, the appellants make much of the claim that the respondent always accepted that the appellants could not continue to live in Saudi Arabia if the first appellant lost his job. In Mr Georget's record of proceedings, I note that the presenting officer, Mr Hussain, submitted that: 'Not disproportionate - S could return to KSA and resume living with parents. Insufficient evidence to find KSA will not accept them - his father s till has job. Serious credibility issues - unclear what posi t ion about KSA visa is, witnesses did not know. Alternatively, S could remain and con ti nue to visit family there as he has done.' The respondent's position before the First-tier Tribunal appears to be less clear cut than the appellants now claim. In any event, I repeat that it is was for the appellants to attend the Tribunal able to prove all aspects of their appeal. They failed to do so and the judge reached findings on the evidence which were available to him. I find that the First-tier Tribunal did not err in law and that the appeals should be dismissed.

 

Notice of Decision

 

These appeals are dismissed.

 

C. N. Lane

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

Dated: 22 February 2025