Ilirjan Hima v The Secretary of State for the Home Department
[2024] EWCA Civ 680
Dahir Elmi Abdi & Ors v Entry Clearance Officer
7 December 2023
[2023] EWCA Civ 1455
Court of Appeal
Three siblings applied to join their brother in the UK. The judge rejected their application based on a reason the government never raised. This was unfair, so the case will be re-heard, giving the siblings a chance to respond to the judge's concerns.
Key Facts
- •Three Somali siblings (Dahir, Ubah, and Mahrez) applied for EEA Family Permits to join their brother in the UK.
- •Their applications were refused, and their appeals to the First-tier Tribunal (FtT) and Upper Tribunal (UT) were dismissed.
- •The FtT judge dismissed the appeal based on concerns about the source of funds used to support the appellants, a matter not raised by the respondent.
- •The appellants argued procedural unfairness because the FtT judge raised and relied on this new point without notice.
Legal Principles
In EEA Family Permit applications, "dependent" means needing material support from the EEA national to meet essential living needs.
SM (India) v Entry Clearance Officer (Mumbai) [2009] EWCA Civ 1426, C-1/105 Jia v Migrationsverket [2007] QB 545
Procedural fairness requires tribunals to act fairly, considering the context and not applying principles by rote. Ordinarily, it is unfair for a tribunal to base its decision on an issue not raised by the parties without giving them an opportunity to address it.
HA v Secretary of State for the Home Department (No 2) [2010] SC 457
A failure to put a point to a party decided against them can be grossly unfair. However, tribunals are not obligated to raise every matter they may rely on, particularly if the matter is reasonably expected to be relevant to the applicant's credibility.
Secretary of State for the Home Department v Maheshwaran [2002] EWCA Civ 173
Surendran Guidelines: If credibility matters arise from the papers not raised in refusal letters, the tribunal should point these out to the representative and allow them to be addressed.
Surendran Guidelines, MNM v Secretary of State for the Home Department [2000] UKIAT 00005
If a witness's evidence is to be rejected, it should generally be challenged at the hearing to allow them an opportunity to address the challenge; this is essential for the integrity of the court process.
TUI UK Ltd v Griffiths [2023] UKSC 48
Outcomes
The appeal was allowed.
The FtT judge unfairly based her decision on a point not raised by the respondent and not given to the appellants an opportunity to address. The court found this to be procedural unfairness.
The case was remitted to the First-tier Tribunal.
To allow the appellants to address the points raised by the FtT judge concerning the source of funds and the appellants' dependency.
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