Abdi & Ors v Entry Clearance Officer [2023] EWCA Civ 1455 (07 December 2023)
The Court of Appeal has held that the FTT had acted unfairly during the hearing of an appeal against the SSHD's refusal of Dahir Elmi Abdi, Ubah Elmi Abdi and Mahrez Sharif Hassan's applications for EEA family permits by failing to give them and their brother Ashkir Elmi Abdi, an EEA national on whom they claimed to be financially dependent, an opportunity to address the point on which it dismissed their appeal, i.e. the remittances demonstrating dependence did not come from him, based on a calculation showing that his declared income in the UK could not have supported the amounts he claimed to have sent, and therefore they were not financially dependent on him. The three Somali nationals did not fall within the definition of family member in Regulation 7 of the Immigration (European Economic Area) Regulations 2016 but sought to bring themselves within the definition of an extended family member in Regulation 8. This required them to establish that they are a relative of an EEA national, that they were residing in a country other than the UK, and that they were dependent upon the EEA national. The issue which arising in the case was whether in the words of Regulation 8(2)(b) they are "dependent upon the EEA national". If so, an EEA family permit should have been granted in accordance with Regulation 12(4). The SSHD did not appear in the FTT during the CVP hearing and the sponsor Ashkir Elmi Abdi was not cross-examined.
Ashkir Elmi Abdi fled to the Netherlands in 2008 where he was granted asylum. In April 2015 he became a Dutch national. He came to the UK in September 2015 and had settled status under the EUSS. He was self-employed as a taxi driver. The bundle before the FTT contained receipts evidencing the money transfers said to have been made by Ashkir to Dahir and Ubah between 2019 and 2021 confirming Ashkir's evidence as to the payments made to Dahir and Ubah (who were living in Kenya) during that period. Overall, FTTJ Bartlett was not satisfied that Ashkir was the source of the funds either sent to or used by the appellants for their essential living needs. She explained her reasons as that the bundle included tax returns for Ashkir for 2019 and 2020, and as to 2021 she said "there is also a tax return in respect of 2021 which may not be complete but is also accompanied by an accountant's letter confirming the figures." This last set of documents, for the 2020/21 tax year, showed "net business profit also described as total taxable profit of £5627". She also calculated that the payments made by Ashkir Abdi to Dahir and Ubah during the tax year 2020/21 in total amounted to payments of $6,875 and 75,374 Kenyan Shillings or £5,500. She compared that with the total business profit of £5,627, and said that that would mean that Ashkir had only £127 for the entire year to meet his own essential living expenses.
FTTJ Bartlett said that irrespective of the different currency rates, the amount claimed to have been paid to the three Somali appellants would be very close to Ashkir's income and so he would have had virtually nothing to live on. She concluded "I am not satisfied that the funds which allegedly came from the sponsor actually came from the sponsor" and therefore she was not satisfied as to the appellants' financial dependence on their sponsor.
"Dependant"
As held in SM (India) v Entry ECO (Mumbai) [2009] EWCA Civ 1426 and C-1/105 Jia v Migrationsverket C-1/05, the term "dependent", in the present context, means that the applicant needs the material support of the EEA family member to meet their essential living needs.
In order to establish dependence, it is not necessary to show that the EEA family member is the sole source of funds from which the applicant meets essential living needs and the support must be "material", in the sense that without it the applicant could not meet their essential needs. This is recognised in the Home Office guidance published on 27 March 2019, i.e. "the applicant does not need to be dependent on the EEA national to meet all or most of their essential needs. For example, an applicant is considered dependent if they received a pension which covers half of their needs and money from their EEA national sponsor which covers the other half."
The Upper Tribunal
On appeal to the Upper Tribunal (Judge Norton-Taylor), it was said that FTTJ Bartlett had unfairly made adverse credibility findings against Ashkir without them being put to him and without them having been relied on in the refusal letters; and that FTTJ Bartlett had failed to make findings as to whether some of the money sent contributed to the essential living needs of the appellants.
The Upper Tribunal decided that, although it would have been better if FTTJ Bartlett had specifically raised at the hearing any concern about Ashkir's ability to remit funds, there was no procedural unfairness and even if there was, it had made no material difference to the outcome. Judge Norton-Taylor rejected the second ground of the appeal on the basis that the dependency claim fell at the first stage.
But the appellants submitted that the Upper Tribunal had erred in law in finding that there had been no or no material procedural unfairness in the FTT notwithstanding that the FTT had decided the appeal on the basis of a matter that had not been raised by the SSHD and of which it had given the appellants no notice.
The SSHD submitted that there was no evidence before the Upper Tribunal as to what had occurred during the FTT hearing, such as a transcript or recording, or the judge's note or a witness statement from the appellants' counsel, and that accordingly it had not been open to them to submit that the FTT hearing was unfair and there was no evidential burden on which the Upper Tribunal could have reached that conclusion.
The Court of Appeal
King, Arnold and Popplewell LJJ unanimously allowed the appeal, highlighting the issues of procedural unfairness principles on appeal and applying them to the facts of the instant case. Popplewell LJ gave the sole judgment with which King and Arnold LJJ agreed.
Popplewell LJ found a wealth of authority on the circumstances in which a failure to raise a point at a hearing amounts to procedural unfairness—both generally and in the context of immigration cases. He found it necessary only to refer to a few and he followed HA v SSHD (No 2) [2010] SC 457 and held that whether there was procedural unfairness was fact-sensitive. Popplewell LJ observed that in SSHD v Maheshwaran [2002] EWCA Civ 173, Schiemann LJ drew attention to the difficulties often faced by those sitting at first instance in immigration cases, i.e. (i) firstly, there are innumerable decisions which have stressed that the requirements of fairness are very much conditioned by the facts of each case, (ii) a failure to put to a party a point which is decided against him can be grossly unfair and lead to injustice because he must have a proper opportunity to deal with the point, (iii) where much depends on the credibility of a party which has made several inconsistent statements, that party has a forensic problem as to to whether to confront them or focus attention elsewhere, (iv) fairness may in some such circumstances require inconsistencies to be put to the witness but that will not usually be the case, and that (v) usually the tribunal can remain silent, especially if the party is represented, and see how the case unfolds.
Popplewell LJ said that difficulties often arise as to how the tribunal can avoid giving an appearance of bias where, as has increasingly happened, the respondent is not represented at the hearing and hence the usual adversarial testing of the applicant's evidence by cross-examination does not take place. He referred to "the Surendran Guidelines" given in the case of MNM v SSHD [2000] UKIAT 00005 where Collins J said at paragraph 5, which was of direct application to the instant case, that:
5. Where no matters of credibility are raised in the letter of refusal but, from a reading of the papers the special adjudicator himself considers that there are matters of credibility arising therefrom, he should similarly point these out to the representative and ask that they be dealt with, either in examination of the appellant or in submissions.
Popplewell LJ noted that in TUI UK Ltd v Griffiths [2023] UKSC 48, the Supreme Court held that fairness generally required that if a witness's evidence is to be rejected, it should be challenged at the hearing to give them an opportunity to address the challenge. That is a matter of fairness to the witness as well as fairness to the parties, and necessary for the integrity of the court process in enabling the tribunal to reach a sound conclusion and that that is a matter of fairness to the witness as well as fairness to the parties, and necessary for the integrity of the court process in enabling the tribunal to reach a sound conclusion. The rule is subject to certain exceptions and is to be applied flexibly in the circumstances of any individual case in application of the criterion of the overall fairness of the trial. In light of this approach, applying the above to the instant case, Popplewell LJ held that:
34. Applying those principles, I have little hesitation in concluding that the failure by the FTT Judge to give the appellants and Ashkir an opportunity to address the point on which she decided the case was unfair. The Refusal Letters had not challenged that the payments which Ashkir said he had made to Ubah had been made by him. They were supported by remittance receipts with Ashkir's name and personal details on them. Rather, two points had been made in the Refusal Letters, one being that the number of payments was "sporadic" and the other being a lack of information about the recipient's financial circumstances. Neither of those raised any question about the credibility of Ashkir. The matter requiring to be addressed, so far as his involvement was concerned, was simply the extent of the payments made by him. Although the evidence adduced before the FTT included a greater number of payments than had been advanced in the initial application to the respondent, with similar supporting documentation, there was no reason to anticipate an issue as to whether Ashkir had made them. This was reinforced by the comments of the FTT Judge at the hearing that the issue of dependency in dispute was that identified in the Refusal Letters, which was echoed in para 7 of her Decision that she treated the respondent's submissions as those set out in the Refusal Letters.
The SSHD submitted that the point which emerged in the FTT decision as determinative was one which it would have been obvious to those advising the appellants needed to be addressed without any prompting from the tribunal. Popplewell LJ rejected the point in its entirety saying "I cannot agree", and said that in Mahad v Entry Clearance Officer [2009] UKSC 16, the Supreme Court (Lord Brown and Lord Kerr) determined that to put it at the lowest, considerable doubt exists whether as a matter of law the source of the money is of any relevance to the question of dependency. Using the sponsor as a conduit was held not to affect dependency under the Immigration Rules. With that in mind, Popplewell LJ held that:
36. In those circumstances this is not a case in which some obvious inconsistency in the evidence which was being put forward should foreseeably have been addressed without the tribunal specifically raising it.
37. Nor can I accept Mr Skinner's submission that the failure to raise the point had no material impact on the outcome, which was in essence the ground on which the Upper Tribunal dismissed the appeal. The test is a high one. In SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284, this court was concerned with procedural unfairness in failing to grant an adjournment for further expert evidence as to the age of the applicant, and the question arose as to whether the judge had been right to conclude that even if the report had been obtained it was reasonably likely that the decision would have been the same.
38. The test is whether remission would be pointless because the result would inevitably have been the same.
39. I would not accept that the only inference from the material relied on by the FTT Judge is that asserted by Mr Skinner at paragraph 39 of his skeleton argument, namely that Ashkir was a conduit for others' money directly or by being provided for in kind by others freeing up the money he earned to send to the appellants.
The Court of Appeal did not have the draft tax return documents for 2020/21 which were before the FTT. However, it was not obvious to the court that a draft tax return by a self-employed taxi driver giving an operational profit is conclusive of disposable income. The evidence to the FTT was that Ashkir's gross receipts were £5,000 to £6,000 monthly, and there are many reasons why net receipts in the given tax year—in the form of disposable income—might not match those shown in draft accounts. For example capital allowances on a vehicle purchased prior to the relevant tax period would not diminish Ashkir's cash flow in that period. Many deductions from income may legitimately be made on a broad brush basis, such as allowances per mile for vehicle expenses, or use of a mobile phone for business purposes. Allowing the appeal on the procedural unfairness ground, Popplewell LJ held that:
39. … All that is speculation so far as these draft accounts are concerned, but it means that this court cannot say with the necessary degree of certainty that remitting the matter would be pointless because the result would inevitably be the same. The outcome will depend upon the explanation given and the facts found, and, quite possibly, the application of disputed issues of law on the relevance of the source of the sponsor's funds and/or living support from others. Resolution of such legal issues is best left until the relevant facts have been found.
It was true that the SSHD had conceded before the Upper Tribunal that the FTT had not raised any concern that Ashkir had not made the payments he said he had made. Notably, that issue was at the forefront of the appeal to the Upper Tribunal and the allegation of procedural unfairness. If the SSHD had wished to dispute the factual basis on which the appellants appealed to the Upper Tribunal, namely what happened at the FTT hearing, he should have served due notice under rule 24 and rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008 in response to the notice of appeal. The Upper Tribunal decision recorded the SSHD's submissions in terms that were inconsistent with any dispute having been raised. Where the point relied on was simply that a matter had not been raised at the hearing, and there was no reason to anticipate a dispute, there had been no need for the appellants to adduce any evidence in the form of a transcript or witness statement from counsel before the Upper Tribunal hearing. In any event, the appellants had adduced a transcript of the FTT hearing for the instant appeal which confirmed beyond doubt that the point about Ashkir's payments was not raised at the hearing.
Comment
In examining procedural unfairness, the Court of Appeal reviewed the various case law on the topic. Popplewell LJ drew attention to the principle that procedural unfairness was fact-sensitive and that failure to put to a party a point which is decided against him can be grossly unfair and lead to injustice because he/she must have a proper opportunity to deal with the point. Moreover, the Court of Appeal's judgment is a reminder for the SSHD that he is not above the law and must adhere to the Tribunal Procedure (Upper Tribunal) Rules 2008 if he wishes to dispute the factual basis on which an appellant appeals to the Upper Tribunal and he must serve due notice under rule 24 and rule 2 thereof.