IA016592014

Mr Ahmed indicated that he had not drafted the grounds (which are unhelpfully long and the first and final grounds unsound) but the test under the 2006 Regulations was whether there was material support to meet essential needs. The evidence before the judge was that the Appellant continued to reside with her father in the holidays and sometimes at weekends. Furthermore the judge had made a finding at paragraph 22 that the Appellant was in receipt of money from her father. I was asked to set the decision aside, remake it, and allow the appeal.

For the Home Office Ms Everett agreed with some of the points taken. The case of Reyes was not authority for the proposition that dependency was not required. The issue on what dependency was required was still a matter that was not wholly clear when the non-EEA national was in a member state.

However what the judge appears to have overlooked is what both the Appellant and the father said in their witness statements. The Appellant said �I am still residing with my father and step family during the holidays and some weekends� (paragraph 6) and the Sponsor said �she is still residing with us during the holidays and some weekends� (paragraph 10) of their respective witness statements. For the judge not to take account of this evidence was a significant factual error which translates into a material error in law.

While the judge did not say if he was accepting or rejecting that evidence he was accepting the Sponsor as an entirely credible witness and he makes no comments which might go against the credibility of the Appellant. It therefore seems reasonable to me to accept that the Appellant was a credible witness as well given that her evidence dovetails with that of her father who has been found to be credible.

I am therefore accepting as true that the Appellant does, as many students do, reside with her father and extended family during the holidays which is therefore for a significant period of time.