The Court of Appeal ruled that the failure to raise a point at a hearing amounts to procedural unfairness.
Facts:
Dahir and Ubah are brother and sister and aged 21 and 22 years old, respectively. Mahrez is Ubah's son, aged 3. They are all nationals of Somalia and live in Kenya. Their brother Ashkir is a national of the Netherlands, having been granted asylum there, but is living and working in England. Dahir, Ubah and Mahrez applied for EEA Family Permits to join Ashkir in England. Due to the situation, the three Somali nationals did not fall within the definition of a family member under Regulation 7 of the Immigration (European Economic Area) Regulations of 2016, but sought to be regarded as dependent-extended family members of an EEA national by relying on Regulation 8. Their applications were refused and their appeals were dismissed by the First tier Tribunal (FtT) and Upper Tribunal (UT).
Decision:
The issue in this case was whether they were dependent per the wording of Regulation 8(2)(b). The FtT judge rejected such a claim based on the fact his declared income and profit in the UK could not have supported the amounts he claimed to have sent. The appeal is primarily related to the concept of procedural fairness.
The Court had to consider whether individuals, who may be negatively impacted by a decision, have the right to present arguments beforehand that could lead to a positive outcome. The Court had to determine whether the appellants were given an opportunity to address some of the pivotal matters to the FtT’s decision, particularly where these matters were neither raised by the respondent nor anticipated in the original proceedings.
The Court looked at the wealth of authority on the circumstances in which a failure to raise a point at a hearing amounts to procedural unfairness. Decision-makers are obligated to inform individuals of specific concerns prior to finalising a conclusion and affording them adequate opportunity to address those issues as found in the Surendran Guidelines. The Court also followed the decision of the Supreme Court in TUI UK Ltd v Griffiths on the principle of fairness with regard to evidence. The Court reiterated that evidence should be challenged at a hearing if it is to be rejected. Based on those principles, the Court found that the FtT failed to allow the appellant to address some concerns, resulting in unfairness.
The Court also discussed what constituted dependency under the Immigration (European Economic Area) Regulations 2016 and concluded that although it covers the need to receive material support from an EEA national to meet essential living needs, it was not limited to financial contributions. It could also include indirect support which enables the EEA national to transfer funds to dependents.
Implications:
This ruling highlights the duty to supply advance notification of specific concerns to grant a fair chance to respond to such issues. It also illustrates the paramount importance of procedural fairness in immigration cases. The ruling also clarifies that the definition of ‘dependency’ under the Immigration (European Economic Area) Regulations 2016 is not limited to financial transfers.