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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-003706
	First-tier Tribunal No: EA/50230/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 20 ^th of March 2025

 

Before

 

UPPER TRIBUNAL JUDGE JACKSON

DEPUTY UPPER TRIBUNAL JUDGE ANZANI

 

Between

 

MS AZRA PARVEEN

(NO ANONYMITY ORDER MADE)

Appellant

and

 

ENTRY CLEARANCE OFFICER

Respondent

Representation :

For the Appellant: Mr Georget of Counsel, instructed by Lee Valley Solicitors

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

 

Heard at Field House on 03 March 2025

 

 

DECISION AND REASONS

1.               In a decision promulgated on 09 January 2025, an error of law was found in the decision of First-tier Tribunal Judge Row, promulgated on 24 May 2024, in which the Appellant's appeal against the decision to refuse her application for an EU Family Permit was dismissed. A copy of that decision is annexed below and the contents of which will not be repeated. This is the re-making of the Appellant's appeal. There are no preserved findings.

 

2.               The Appellant is a national of Pakistan, born on 1 January 1972. She made an application on 3 April 2023 under Appendix EU (Family Permit) to join her son, Mr Sheharyar Maqsood (the Sponsor) and daughter-in-law, Mrs Safi Nor Ullah in the United Kingdom (UK). Mrs Ullah is a national of Norway and has pre-settled status in the UK. She is married to the Sponsor. The Appellant claims she is financially dependent upon her son and daughter-in-law.

3.               The Respondent refused the application on the basis that there was insufficient evidence to support the Appellant's claim of dependency on the Sponsor. While money transfer receipts were provided, there was said to be a lack of documentation regarding the Appellant's personal and financial situation in Pakistan. The Respondent contends that this absence of evidence fails to demonstrate that the funds received are being used to meet the Appellant's essential needs.

Legal framework

4.               The relevant parts of Appendix EU (Family Permit) are as follows:

"FP3. The applicant will be granted an entry clearance under this Appendix, valid for the relevant period, by an entry clearance officer where:

                                                               i.       A valid application has been made in accordance with paragraph FP4;

                                                             ii.       The applicant meets the eligibility requirements in paragraph FP6(1), (2) or (3); and

                                                           iii.       The application is not to be refused on grounds of suitability in accordance with paragraph FP7.

...

FP6. (1) The applicant meets the eligibility requirements for an entry clearance to be granted under this Appendix in the form of an EU Settlement Scheme Family Permit, where the entry clearance officer is satisfied that at the date of application:

...(e) The applicant is a family member of a relevant EEA citizen;

....

FP9. (1) Annex 1 sets out definitions which apply to this Appendix. Any provision made elsewhere in the Immigration Rules for those terms, or for other matters for which this Appendix makes provision, does not apply to an application made under this Appendix.

Definitions

"family member of a relevant EEA citizen"

a person who has satisfied the entry clearance officer, including by the required evidence of family relationship, that they are:

...

2. the child or dependent parent of the spouse or civil partner of a relevant EEA citizen, as described in subparagraph (a) above, and:
3. the family relationship of the child or dependent parent to the spouse or civil partner existed before the specified date...; and
4. all the family relationships continue to exist at the date of application;

...

"dependent parent"

                                                               i.       the direct relative in the ascending line of a relevant EEA citizen (or, as the case may be, of a qualifying British citizen) or of their spouse or civil partner; and

                                                             ii.       (unless sub-paragraph (c) immediately below applies):

dependent on the relevant EEA citizen or on their spouse or civil partner:

(aa) (where sub-paragraph (b)(i)(bb) or (b)(i)(cc) below does not apply) at the date of application and (unless the relevant EEA citizen is under the age of 18 years at the date of application) that dependency is assumed; or

(bb) (where the date of application is after the specified date and where the applicant is not a joining family member) at the specified date, and (unless the relevant EEA citizen was under the age of 18 years at the specified date) that dependency is assumed; or

(cc) (where the date of application is after the specified date and where the applicant is a joining family member) at the date of application and (unless the relevant EEA citizen is under the age of 18 years at the date of application) that dependency is assumed where the date of application is before 1 July 2021; or

dependent on the qualifying British 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, and (unless the qualifying British citizen is under the age of 18 years at the date of application or, where the date of application is after the specified date, the qualifying British citizen was under the age of 18 years at the specified date) that dependency is assumed; and

"specified date"

(where sub-paragraph (b) below does not apply) 2300 GMT on 31 December 2020".

5.        The burden of proof is on the Appellant to prove the facts she alleges and the standard is the balance of probabilities.

The Hearing

6.               The Sponsor and Mrs Ullah both attended the hearing and gave oral evidence.

7.               We had before us a 511-page Composite Bundle [CB]. This included at Part B the following supplementary evidence post-dating the decision of Judge Row:

(a)     A supplementary witness statement filed by the Appellant

(b)    A supplementary witness statement filed by the Sponsor

(c)     Objective evidence relating to the scarcity of digital banking and bank account ownership in Pakistan

(d)    Evidence of financial support from the Sponsor and daughter-in-law to the Appellant (2022-2025)

(e)     Evidence of the Appellant's monthly expenses (2023-2025)

8.               It was agreed between the parties that the sole issue in dispute is whether the Appellant is dependent on the Sponsor in accordance with the EU Settlement Scheme as set out in Appendix EU (Family Permit) of the Immigration Rules.

9.               The oral evidence and submissions are a matter of record. The main points arising were as follows:

The witness evidence

Oral evidence - the Sponsor

10.           The Sponsor adopted his witness statements signed on 04 March 2024 and 13 February 2025.

11.           In cross-examination he stated that his mother does not have a bank account. He said that his mother cannot read or write, does not understand how bank accounts work, and instead collects the money he sends here directly from the money transfer company they use. When questioned about the objective reports relating to banking in Pakistan, he accepted that banking is available in Punjab, but he reiterated that not everyone living there has a bank account, including his mother.

12.           He confirmed transferring money through Remitly, a money transfer company, but agreed that some receipts withing the bundle were unclear or lacked specific details as to how much money was transferred on each occasion.

13.           He accepted that more money was sent following the Respondent's refusal in June 2023 but explained that this was due to his mother's financial needs increasing over time. He confirmed that he began sending money to his mother in 2021, after moving to the UK. Before that he had been living with his mother in Punjab and supporting her financially through his earnings there.

14.           The Sponsor confirmed that he has four siblings; one brother living in Sweden, two sisters living in Norway and one sister living in Pakistan. He explained that his siblings did not provide financial support to their mother.

15.           The Sponsor was questioned about his mother's monthly expenses. He accepted that some of her expenses are documented, but some, such as water costs and the cost of the Appellant's maid and communal security guard are paid for in cash without formal receipts.

16.           In re-examination he confirmed that before his mother's visa application, she did not usually receive receipts for groceries, though she did receive paper bills for electricity. Receipts for groceries and medical bills were only obtained because the Entry Clearance Officer had asked for this evidence, with shops and pharmacies providing them to the Appellant upon request.

17.           The Sponsor confirmed that despite having siblings, he is the sole financial supporter of his mother. He had supported her for over 10 years. His siblings do not contribute due to cultural and personal circumstances. His brother has four children and therefore has his own financial commitments. His sisters do not work. In his culture, it is traditionally the responsibility of sons, not daughters, to support parents. The Sponsor said that he had asked his brother to help support their mother in the past, but he was unable to help due to financial difficulties.

18.           Before 2021, when the Sponsor moved to the UK, he had been living with his mother in her home in Pakistan. He had been supporting his mother financially since around 2015, when he started working. Prior to that his uncles (his father's brothers) had provided financial support to the family following his father's death.

19.           He confirmed that he and his wife do not yet have children.

Oral evidence - Mrs Ullah, daughter-in-law

20.           Mrs Ullah adopted her witness statement signed on 04 March 2024.

21.           In cross-examination she confirmed that she had been sending money to her mother-in-law since 2021. Before that, her husband, who was then living in Pakistan and working as a taxi driver, supported the Appellant using his earnings, along with money she sent from the UK.

22.           Mrs Ullah confirms that her mother-in-law spends in the region of PKR 4166 monthly on a security guard and PKR 800 on a maid. She accepted that there were no receipts relating to these payments but explained that this was because they were difficult to obtain.

23.           When asked if the Appellant's security guard worked for a company, she replied that they were arranged by the neighbours. The maid came from a personal recommendation.

24.           Mrs Ullah confirmed that none of her husband's siblings contribute financially to their mother's upkeep.

25.           In re-examination she explained that this was because they had their own financial burdens and respective families.

The documentary evidence

26.           The documentary evidence includes a range of materials, not all of which it is necessary to refer to individually (such as documents confirming identity and family relationship, and payslips, concerning matters which are not in dispute), but all have been taken into account. I refer to the key documents below.

(a)     The Appellant's personal annual budget breaking down her annual expenses

(b)    Remitly money transfer receipts covering 11.04.2022 to 01.02.2025

(c)     Ria money transfer receipts covering 11.04.2022 to 04.04.2024

(d)    My WU money transfer receipts on illegible dates

(e)     Ravi Exchange Company money transfer receipts covering 06 March 2024 - 18.05.2024

(f)      The Appellant's electricity bills

(g)    The Appellant's pharmacy receipts

(h)    The Appellant's medical records

(i)      Grocery receipts

(j)       Receipts for shoes and clothing

(k)    News reports relating to the scarcity of bank account ownership in Pakistan

 

Closing submissions

27.           On behalf of the Respondent, Ms Ahmed submitted that this appeal should be dismissed. She relied upon the reasons for refusal letter and the Respondent's Review. She accepted that substantial evidence of money transfers had been adduced, but she invited us to note issues in the evidence, namely that some of the evidence was unclear, some transfer receipts did not show the dates of the transfers, the transfer amounts varied and the amount and frequency of transfers increased after the respondent's decision. She suggested the transfers may have been contrived for the appeal.

28.           Ms Ahmed argued that there was no clear evidence of what the Appellant's essential living needs are. While there was documentary evidence of bills and grocery receipts, her monthly expenses were not clearly established. There were no additional receipts to corroborate the figures provided in the schedule of expenses detailed in the Appellant's witness statement dated 06 March 2024.

29.           Ms Ahmed next addressed the issue of the Appellant's lack of a bank account. She acknowledged the news articles submitted by the Appellant, which indicated that a significant portion of the population in Pakistan does not possess bank accounts. However, she contended that these articles did not establish that bank accounts are unavailable. Ms Ahmed suggested it was possible the Appellant does have a bank account but chose not to disclose it as it might not support the appeal. She suggested the Appellant's claim of not having a bank account lacked credibility, but was not able to explain why.

30.           Ms Ahmed noted that the Sponsor has siblings. She argued that it lacked credibility that they were not providing financial assistance to the Appellant. She argued that there was an inconsistency between the evidence of the Sponsor and Mrs Ullah as to the Appellant's security guard, without clearly specifying what the inconsistency was. She invited us to find that the witnesses were not credible but did not rely on any further issues to support this submission.

31.           On behalf of the Appellant, Mr Georget submitted that the core issue of the appeal is whether the Sponsor's financial support for his widowed mother is genuine or fabricated. Credibility is central to the case. The Respondent's position seemed to suggest that the financial evidence has been manipulated. Conversely, the alternative perspective is that the Sponsor is genuinely supporting his mother to ensure she has a reasonable quality of life. There is no dispute that money is being sent; the critical question is whether the Appellant genuinely requires these funds to meet her essential living needs.

32.           He argued that while there may be some minor gaps in the money transfer evidence, and the Appellant cannot document each and every one of her expenses, this has to be viewed in the context of her living in rural Pakistan, a cash economy, where only 19% of people have bank accounts. The lack of formal documentation or itemised bills is not unusual, and this should not undermine the credibility of the evidence. The family has produced receipts where possible.

33.           Whilst the Respondent points to the Appellant having other children, Mr Georget argued that it is entirely plausible that the Sponsor, who remined living with his mother until 2021, had then taken on the responsibility of financially supporting the Appellant. He has no children and is able to comfortably support his mother from his earnings here in the UK. He invited us to accept the credibility of the witnesses, and to allow the appeal.

Findings and reasons

34.           We have carefully considered all the oral and documentary evidence, as well as the submissions from both representatives, even where not explicitly mentioned. After evaluating the evidence presented, we are satisfied that the Appellant has demonstrated her dependency on the Sponsor to meet her essential needs at the time of the application. We arrive at this conclusion for the following reasons.

35.           We found both the Sponsor and Mrs Ullah to be credible and reliable witnesses. Their evidence was internally consistent and aligned with the extensive documentary evidence provided. Contrary to Ms Ahmed's assertion, we found no inconsistency regarding the Appellant's use of a security guard in Pakistan. The Appellant included the cost of a security guard in her schedule of expenses. The Sponsor clarified that the guard was not employed solely by the Appellant for her own personal security, but rather was part of a communal arrangement to secure the residential area where she lives. When Mrs Ullah was later questioned about the security guard, she explained that the guard was organised by the Appellant's neighbours. We find no meaningful discrepancy between these accounts.

36.           We have been presented with substantial evidence demonstrating regular and consistent money transfers from the Sponsor and Mrs Ullah to the Appellant, covering the period April 2022 to February 2025. Ms Ahmed acknowledged the significant volume of evidence showing these transfers. While we note her concerns regarding the visibility of certain dates on some transfer receipts, the sheer number of receipts provided allows us to conclude that regular and consistent sums have been sent by the Sponsor and Mrs Ullah to the Appellant over the past three years. We do not accept Ms Ahmed's submission that the amount and frequency of money transfers increased significantly following the Respondent's decision, suggesting the evidence was fabricated to support the Appellant's appeal. Instead, we find the Sponsor's explanation more credible, that the increase in transfers was due to the rising cost of living his mother has been facing.

37.           The Respondent suggests that the Appellant's essential living costs are unclear. We do not agree. The Appellant has provided a detailed, itemised annual budget outlining her various expenses, along with a further breakdown of her monthly living costs in her witness statement dated 06 March 2024. She has also submitted supporting documents, including electricity bills and medical and pharmacy receipts, which align with her budget. We accept Mr Georget's submission that, given the Appellant's residence in rural Pakistan, it would be unreasonable to expect her to have itemised receipts for all expenses. Additionally, considering the objective news reports submitted by the Appellant indicating that only 19% of Pakistani nationals have bank accounts, we find nothing intrinsically implausible about the Appellant, a 53-year-old widowed woman living in rural Punjab, not having a bank account. We see no evidential basis for Ms Ahmed's assertion that the Appellant's evidence on this matter lacks credibility.

38.           The critical question is whether the Appellant is in fact in a position to support herself or not: Lim [2015] EWCA Civ 1383 at [29]. This is a simple matter of fact. Having had the benefit of hearing the Sponsor and Mrs Ullah give evidence, and in light of the extensive documentary evidence before us, we accept the Appellant does not work and that she has no means of supporting herself from her own resources. We are satisfied that the Appellant is dependent on the money sent by the Sponsor to meet her essential needs. The Sponsor confirmed that he has a brother living in Sweden, two sisters in Norway, and one sister in Pakistan. We accept his evidence that his siblings are unable to provide financial support for the Appellant given that his brother has four children, and his sisters do not work. His evidence was corroborated by his wife and the documentary evidence before us clearly supports his account of being the primary person responsible for sending money to his mother.

39.           We are therefore satisfied that the Appellant is dependent upon the Sponsor within the definition in Annex 1 of Appendix EU (Family Permit), and her appeal is therefore allowed.

Notice of Decision

For the reasons set out in the decision annexed, the making of the decision of the First-tier Tribunal did involve the making of a material error of law. As such, it was necessary to set aside the decision.

The appeal is remade as follows:

The appeal is allowed.

 

 

S. Anzani

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

14th March 2025

 

 

 

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-003706
	First-tier Tribunal No: EU/50230/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

.......................................

 

Before

 

UPPER TRIBUNAL JUDGE JACKSON

 

Between

 

Azra Parveen

(NO ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms S Saifolahi of Counsel, instructed by Lee Valley Solicitors

For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer

 

Heard at Field House on 14 October 2024

 

DECISION AND REASONS

1.               The Appellant appeals with permission against the decision of First-tier Tribunal Judge Row promulgated on 24 May 2024, in which the Appellant's appeal against the decision to refuse her application for an EU Family Permit dated 10 June 2023 was dismissed.

2.               The Appellant is a national of Pakistan, born on 1 January 1972, who made an application on 3 April 2023 under Appendix EU (Family Permit) to join her daughter-in-law (the Sponsor) as the dependent parent of an EEA national.

3.               The Respondent refused the application the basis that there was insufficient evidence that the Appellant was dependent on the Sponsor as claimed, in particular, whilst there was evidence of money transfer receipts, there was a lack of evidence as to the Appellant's personal and financial circumstances in Pakistan, such as bank statements, rent and utility bills and so on to show that funds received were being used for essential needs. There was also a lack of any medical evidence.

4.               Judge Row dismissed the appeal in a decision promulgated on 24 May 2024 on all grounds. In summary, it was not found that the Appellant had revealed her true circumstances in Pakistan, in particular as there as no evidence as to how she supported herself before the money transfers began in October 2021 and no satisfactory explanation as to why none of her other children provided any support for her if she needed it.

The appeal

5.               The Appellant appeals on two grounds as follows. First, that the First-tier Tribunal materially erred in law in dismissing the appeal on the basis that the Appellant can work, had not explained how she was previously supported or why other children do not support her, in circumstances where the reason for dependency is not relevant and only current dependency was required. Secondly, that the First-tier Tribunal materially erred in law in its assessment of credibility when relying on the lack of evidence about support from the Appellant's other children and the lack of bank statements, in circumstances where the Respondent had not requested such information and these points were not raised during the hearing. There was therefore an issue of procedural fairness.

6.               In a rule 24 response dated 29 August 2024, the Respondent partially opposed the appeal, including on the basis that the Appellant was expressly on notice from the refusal letter and review that the lack of bank statements was in issue and that there had been a lawful assessment of the evidence. However, the Respondent did accept that the First-tier Tribunal erred in law in considering whether the Appellant could work or whether she was supported by other children; both points being irrelevant to the test of dependency.

7.               On the morning of the hearing, Ms Cunha sent a short message to the Upper Tribunal to inform that the concession in the rule 24 response was withdrawn and the appeal continues to be fully opposed. No further detail were given and it seems this had not previously been communicated to the Appellant. The withdrawal of the concession was opposed on behalf of the Appellant.

8.               At the oral hearing, Ms Cunha stated that she withdrew the concession on the basis that it was not clear what had actually been considered. She confirmed that the sole reason for withdrawal was that she did not understand what had been said and suggested that the grounds of appeal raised the issue of choice in the context of credibility and not the test for dependency so this could not be material to the outcome. Her view was that the appeal was defensible. However, if the concession could not be withdrawn, it was accepted that the decision of the First-tier Tribunal should be set aside for a material error of law and re-made.

Findings and reasons

40.           The Court of Appeal gave consideration to the issue of withdrawal of a concession in Secretary of State for the Home Department v Akram Davoodipanah [2004] EWCA Civ 106, setting out the following principle:

22. It is clear from the authorities that where a concession has been made before an adjudicator by either party the Tribunal can allow the concession to be withdrawn if it considers that there is good reason in all the circumstances to take that course ... Obviously if there will be prejudice to one of the parties if the withdrawal is allowed that will be relevant and matters such as the nature of the concession and the timing may also be relevant, but it is not essential to demonstrate prejudice before an application to withdraw a concession can be refused. What the Tribunal must do is to try and obtain a fair and just result. In the absence of prejudice, if a presenting officer has made a concession which appears in retrospect to be a concession which he should not have made, then justice will require that the Secretary of State be allowed to withdraw that concession before the Tribunal. But, as I have said, everything depends on the circumstances, and each case must be considered on its own merits.

41.           Further to this, in NR (Jamaica) v Secretary of State for the Home Department [2009] EWCA Civ 856, Lord Justice Goldring, having referred to the principle set out above, added:

12. As Kennedy LJ makes clear, the Tribunal may in its discretion permit a concession to be withdrawn if in its view there is good reason in all the circumstances for that course to be taken. Its discretion is wide. Its exercise will depend on the particular circumstances of the case before it. Prejudice to the applicant is a significant feature. So is its absence. Its absence does not however mean that an application to withdraw a concession will invariably be granted. Bad faith will almost certainly be fatal to an application to withdraw a concession. In the final analysis, what is important is that as a result of the exercise of discretion the Tribunal is enabled to decide the real areas of dispute on their merits so as to reach a result which is just both to the appellant and the Secretary of State.

42.           It is notable in the present case that there was no application on behalf of the Respondent to withdraw the concession made in the rule 24 notice, only a statement of withdrawal made at very short notice before the hearing which contained no reasons or explanation. Ms Cunha failed to appreciate that the withdrawal of a concession is a matter for the Upper Tribunal and it was not appropriate to simply make a statement that this was being done without more. At the hearing, Ms Cunha failed to identify any reason for the very late attempt to withdraw the decision; failed to refer to any relevant case law or test as to the withdrawal of a concession and at best, the only reason identified for her doing so is that she either did not understand or did not agree with it. Collectively, this was not an appropriate course to take and was one which prejudiced the Appellant who had prepared for the hearing, through Counsel, on the basis of the concession that had been made in writing some months before the hearing.

43.           In addition, there was nothing on the face of it to suggest that there was any actual difficulty with the concession that had been made. It was sufficiently clear to identify the partial ground upon which it was accepted that the First-tier Tribunal had erred in law, namely the consideration of whether the Appellant could work or was supported by her other children, which properly went to both grounds of appeal, as a matter of legal assessment and procedural fairness. Contrary to the position about bank statements, the Respondent has not challenged the assertion that these matters were not raised by the Respondent. Further, this was not the sort of concession for which there was any suggestion or basis to think that it had been erroneously made, for example, it was not based on a misreading of the Immigration Rules or against case law or background country information.

44.           In these circumstances, the attempt to withdraw the concession was wholly inappropriate in the manner made and for the reasons given. It is not legitimate for a representative to seek to do so at the very last minute only on the basis that a concession was either not subjectively understood or on the basis of simple disagreement that she would personally have argued the case differently. As indicated at the hearing, I do not permit the withdrawal of the concession.

45.           In any event, the concession was, in my view, entirely appropriately made when considering all of the facts of the case. The consideration of whether the Appellant could work and whether she was supported by other children was unarguably an error of law both for procedural fairness reasons (as it had not been relied upon by the Respondent or raised directly at the hearing) and in the failure to consider that reasons for dependency are not relevant, albeit the lack of evidence on these points may, if raised, remain relevant to credibility. Ms Cunha did not, in the event that the concession remained, submit that either error would be immaterial to the outcome of the appeal and plainly at least one, if not both would be. As such, I find an error of law in the decision of the First-tier Tribunal and set aside that decision. The appeal can be relisted in the Upper Tribunal for a de novo hearing, with directions given for this below.

Notice of Decision

 

The making of the decision of the First-tier Tribunal did involve the making of a material error of law. As such it is necessary to set aside the decision.

 

I set aside the decision of the First-tier Tribunal.

 

Listing Directions

1.        The appeal to be relisted on the first available date after 20 January 2025 for a face-to-face hearing before UTJ Jackson with a time estimate of 2.5 hours. An Urdu interpreter is required for the Sponsor and his wife to give evidence.

 

2.        Any further evidence upon which the Appellant wishes to rely is to be filed and served no later than 21 days before the relisted hearing. For any person intending to give oral evidence in support of this appeal, this must include a written statement (or updated written statement), accompanied by a statement of truth and be signed and dated by him/her to stand as evidence in chief.

 

3.        Any further evidence upon which the Respondent wishes to rely is to be filed and served no later than 14 days before the relisted hearing.

 

 

G Jackson

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

12 ^th December 2024