Dahir Elmi Abdi & Ors v Entry Clearance Officer

For an extended-family-member application, dependency requires material support from the EEA national to meet essential living needs. The national need not be the sole source of funds. Procedural fairness is contextual and ordinarily requires a tribunal to give parties an opportunity to address a new, decisive concern before relying on it, especially where the concern was not raised in the refusal decision or at the hearing and was not reasonably foreseeable. An appellate tribunal should not treat an unfair procedure as immaterial merely because the result might be unchanged. Remittal is unnecessary only where the result would inevitably have been the same.

Three Somali nationals living in Kenya applied for EEA Family Permits under Regulation 12 of the Immigration (European Economic Area) Regulations 2016 to join their Dutch-national brother in England. The Respondent refused the applications. The First-tier Tribunal dismissed the appeals on the basis that the sponsor was not the source of the remitted funds, relying on a comparison between the remittances and his reported taxable profit. That concern had not been raised at the hearing.

The Upper Tribunal dismissed the onward appeals on 10 November 2022, holding that any procedural unfairness could not have affected the outcome and that the First-tier Tribunal was not required to determine whether the sponsor had made a partial contribution. The central issues before the Court of Appeal were whether the procedure had been unfair and whether the appeal should be remitted.

1. Disposition. Popplewell LJ, with Arnold LJ and King LJ agreeing, allowed the appeal on Ground 1. Ground 2 did not arise for decision. The appeals were remitted to the First-tier Tribunal.
2. Evidence and the Respondent’s Notice. Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 did not make a response mandatory in the circumstances. However, the overriding objective in Rule 2 required the Respondent to identify any dispute about the factual basis of a procedural-unfairness ground. The failure to dispute the assertion that the issue had not been raised at the First-tier Tribunal amounted to a concession. The Upper Tribunal was also entitled to rely on counsel’s statement from the bar: Hickman v Berens [1895] 2 Ch 638. The transcript was admissible; even if the Ladd v Marshall [1954] 1 WLR 1489 criteria applied, they were satisfied.
3. Procedural fairness. Fairness is context-sensitive and fact-sensitive. HA v Secretary of State for the Home Department (No 2) [2010] CSIH 28, The Secretary of State for the Home Department v Maheshwaran [2002] EWCA Civ 173, WN v Secretary of State for the Home Department [2004] UKIAT 00213 and TUI UK Ltd v Griffiths [2023] UKSC 48 establish that a tribunal may raise an issue not advanced by the parties, but will ordinarily act unfairly if it decides the case on that issue without giving a proper opportunity to respond. The requirement is flexible and does not require notice of every matter on which a tribunal may rely.
4. Application. The refusal letters challenged the sporadic nature of the payments and the absence of detailed financial evidence. They did not challenge whether the sponsor had made the payments. The remittance receipts supported his evidence, and there was no obvious reason for the appellants to anticipate an inquiry into the source of his funds. The First-tier Tribunal’s decisive finding was therefore reached unfairly.
5. Materiality. The relevant question was whether remittal would be pointless because the result would inevitably have been the same, not whether the same result was merely likely. The sponsor’s draft accounts did not conclusively establish his disposable income. The outcome could depend on further explanation, factual findings and potentially disputed legal issues concerning the relevance of the source of funds. The appeal could not properly be dismissed on the basis of inevitability.
6. Unresolved dependency issue. The court expressed considerable doubt whether the source of a sponsor’s funds is legally relevant to dependency, referring to Mahad v Entry Clearance Officer [2009] UKSC 16, but left that issue for determination after the facts had been found. The court expressed no view on whether the First-tier Tribunal was entitled, in adversarial proceedings, to raise the point in the first place.

1. Court of Appeal (Civil Division): In [2023] EWCA Civ 1455, the appeal was allowed on Ground 1 and the matter was remitted to the First-tier Tribunal.
2. Upper Tribunal (Immigration and Asylum Chamber): On 10 November 2022, Upper Tribunal Judge Norton-Taylor dismissed the appeals in UI-2022-002946, UI-2022-002947 and UI-2022-002948.
3. First-tier Tribunal: On 25 February 2022, First-tier Tribunal Judge Bartlett dismissed the appeals.