OA028242014 & OA028252014

In this decision the Appellant is referred to as the Secretary of State and the Respondents are referred to as the Claimants.

The Claimants, nationals of Eritrea, respectively dates of birth 1 January 1997 and 1 January 1999, are brothers who appealed against the decisions of the ECO Abu Dhabi of 23 January 2014 to refuse entry clearance to join their sister, J D for a family reunion. Refusal was under paragraph 319X of the Immigration Rules HC 395 (as amended). The reasons for refusal were identical in respect of both Claimants and turned on the issues of the adequacy of maintenance and accommodation in the United Kingdom.

The Claimants appeals came before First-tier Tribunal Judge J Pacey (the judge), who on 4 November 2014 allowed their appeals on Article 8 ECHR grounds but dismissed their appeals with reference to the requirements of the Immigration Rules. The Secretary of State sought permission to appeal the decisions of the judge. On 22 December 2014 Upper Tribunal Judge Martin, sitting as a Judge of the First-tier Tribunal, granted permission to appeal.

The judge considered the accommodation that would be available to the Claimants were they to come to the United Kingdom and concluded that it was adequate and certainly better than those in which the Claimants presently lived.

The judge did recognise that the Sponsor�s income derived from income support, it appearing she was also being in receipt of housing benefits, there was not adequate funding to enable them to live at the recognised minimum level; by way of the financial provision of family support. Nevertheless the judge concluded at paragraph 40: �The Claimants would not be entitled to public funds and hence would not be to that extent a burden on taxpayers. Their Sponsor is in receipt of public funds in her own right.�