Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03226/2015

THE IMMIGRATION ACTS

Heard at City Centre Tower Birmingham
Decision & Reasons Promulgated
On 13th March 2017
On 4th April 2017

Before

DEPUTY upper tribunal JUDGE RENTON

Between

bolanle adeola ola
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Mohzan of Schaws Solicitors
For the Respondent: Mr D Mills, Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The Appellant is a single woman and a citizen of Nigeria born on 27th July 1977. She appealed a decision to refuse her asylum which was made for the reasons given in the Respondent’s letter of 9th January 2015. Her appeal was first heard by First-tier Tribunal Judge Chapman who dismissed it on asylum, humanitarian protection, and human rights grounds for the reasons set out in his Decision dated 1st June 2015. The Appellant successfully appealed that decision to the Upper Tribunal and as a consequence her appeal was reheard by First-tier Tribunal Judge Robertson (the Judge) sitting at Birmingham on 30th June 2016. The findings of fact made by First-tier Tribunal Judge Chapman were preserved, and the only issues before First-tier Tribunal Judge Robertson were whether the Appellant had a right of residence in the UK as a result of her son Jamal being an EEA citizen, and whether the Appellant’s removal would be a disproportionate breach of the private and family life rights of the Appellant, her son, and her daughters. The Judge dismissed the appeal for the reasons set out in her Decision dated 18th July 2016. The Appellant sought leave to appeal that decision, and on 5th October 2016 such permission was granted.
Error of Law
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
3. The Judge dismissed the appeal because she was not satisfied that the principle set out in the decision in Zambrano Case C-34/09 [2011] ECR 1-0000 applied. This was because Jamal as a German citizen had a right to enter Germany, where his father lived, and therefore would not be forced to leave the territory of the EU. Under Zambrano, the Appellant as Jamal’s primary carer would also have the right to enter Germany, and the German authorities would be bound to also admit the Appellant’s two dependent daughters as it would be disproportionate to exclude them. Therefore Jamal did not have a derived right of residence in the UK under Article 12 of Regulation 1612/68, and the Appellant did not have a derivative right of residence as his primary carer under Regulation 15A of the EEA Regulations 2006.
4. The Judge dismissed the appeal on Article 8 ECHR grounds because it was not contrary to the best interests of the children to live in Germany, where their father would have greater access to them, and overall it would not be disproportionate for the Appellant and her family to reside in Germany.
5. At the hearing, Mr Mohzan referred to his Skeleton Argument and submitted that the Judge had erred in law in reaching her decision. The Judge was wrong to find that the decision in Zambrano did not apply to the Appellant following the decision in Ahmed (Amos; Zambrano; Reg 15A(3)(c) 2006 EEA Regs) [2013] UKUT 00089 (IAC). The Judge had relied on speculation that the Appellant and her two daughters would be able to enter and reside in Germany along with Jamal. Further, there was no requirement for children such as Jamal to be a British citizen as opposed to a citizen of any other EEA state for the purpose of EU law and the principle established in Zambrano. This error infected the Article 8 ECHR decision as it was made on the assumption that the Appellant and her two daughters could enter and reside in Germany with Jamal.
6. In response, Mr Mills referred to the Rule 24 response and argued that there was no such error of law. The Judge found that the principle established in Zambrano did not apply as a consequence of her finding of fact that Jamal as a German citizen would not have to leave the territory of the EU. The decision in Ahmed did not contradict this finding as it was made on a different factual matrix. It was open to the Judge to find that the Appellant as Jamal’s primary carer would be able to enter and reside in Germany, and that her two other children could accompany her there. There was no evidence before the Judge to the contrary. The Judge was able to make the inference that that was the case. It was for the Appellant to show that it was not the case. At worse Jamal’s siblings would have a very strong claim to live with him and their mother in Germany.
7. At the hearing I reserved my decision which I now give. I do find an error of law in the decision of the Judge which I therefore set aside. Regardless of the technical argument as to whether the Appellant could rely upon the Zambrano principle, it was an essential part of the Judge’s decision in respect of both the Appellant’s derivative rights and Article 8 ECHR that Jamal’s minor sisters would be able to accompany him and their mother to Germany and reside there. However, there was no evidence before the Judge that this was the case. It may have been a reasonable assumption for the Judge to make, but that would still amount to speculation, and it is an error of law for the Judge to rely upon such.
8. As I reserved my judgment at the hearing, I did not proceed to remake the decision in the appeal. The case is therefore adjourned for that decision to be made at a subsequent hearing in the Upper Tribunal. There is no need for that hearing to be reserved to me.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside that decision.
The decision in the appeal will be remade at a subsequent hearing in the Upper Tribunal.

Anonymity
The First-tier Tribunal did not make an order for anonymity. I was not asked to do so, and indeed find no reason to do so.

Signed Date 31st March 2017

Deputy Upper Tribunal Judge Renton