Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03302/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision & Reasons Promulgated
On 6th September 2016
On 6th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

SOK
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND REASONS
1. As this appeal involves the interests of a young child I make the following anonymity direction:
DIRECTION REGARDING ANONYMITY - RULE 14 OF THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
Background
2. In a renewed application Upper Tribunal Judge Finch gave permission to the appellant on 21st October 2015 to appeal against the decision of Judge of the First-tier Tribunal Hillis who dismissed the appeal on all grounds against the decision of the respondent to refuse asylum, humanitarian and human rights protection to the appellant, a citizen of Iraq. In relation to human rights, the appellant claimed to be in a genuine and subsisting relationship with a Slovakian national and to have sole responsibility for the child of that relationship.
The Hearing
3. At the hearing there was no appearance by or on behalf of the appellant. Notice had been sent to him at his last recorded address in Liverpool on 8th July 2016 and had not been returned in the post. The appellant had not been represented throughout the appeal process. In these circumstances I was satisfied that I could proceed to hear the appeal in the appellant's absence and that it was in the interests of justice to do so. In this respect I applied the provisions of paragraph 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
4. Upper Tribunal Judge Finch stated, in the grant of permission, that the appellant had not sought to appeal against the decision to refuse asylum but alleged that the First-tier Judge had misdirected himself when he found that the appellant was not his daughter's father and was not in a genuine and subsisting relationship with her mother. It was noted that the appellant's wife and her own father had given evidence at the hearing and the wife's mother had also submitted a witness statement but was not cross-examined upon it. The First-tier Judge had not referred to the evidence given by the appellant's wife's parents and did not explain why their evidence as confirmation of a genuine relationship was not accepted. Further, papers relating to Family Court proceedings suggested that the appellant was the father of his wife's child. Additionally, the First-tier Judge had based his conclusion about the child's best interests on allegations which were not proved in the Family Court and which were withdrawn.
5. The respondent submitted a response on 4th November 2015 opposing the appeal on the basis that the judge had directed himself appropriately. However the respondent had not, at that time, been furnished with a copy of the appellant's original grounds of appeal and it was not clear whether or not the grant of permission by the Upper Tribunal Judge was predicated upon the appellant's grounds or the judge's own view of the papers as available on the court file. Further, it was commented that the judge was entitled to center upon the evidence of the appellant and his alleged partner with regard to questions of subsistence.
6. Mr Bates reminded me that it was only the First-tier Judge's Article 8 assessment that was in contention and so the dismissal of the asylum claim should stand. He accepted that the judge had made no findings on the evidence of the partner's father and mother but argued that this was not material. That was because the judge did consider in paragraph 61 of the decision the relevant issues under paragraph 117B of the 2002 Act and, in paragraph 66, recorded the fact that the partner, in her own evidence, had stated that if the appellant were removed to Iraq she would go there with him and take their daughter who is not a UK citizen. There would therefore be no interference with family life. Mr Bates also contended that the Immigration Rules could not have applied to the child or the mother who was not settled in UK and so would not come within Section EX.1. of the Rules. He contended that the genuineness of the relationship was not a material issue when the parties had agreed that they would return to Iraq together. Mr Bates also emphasised that the reasons for rejection of the human rights claim were clearly detailed in the refusal of 13th February 2015, which had concluded that the appellant's partner was not an EEA national exercising treaty rights in the United Kingdom and that the parties had not shown that they were in a subsisting relationship for a period of two years.
Conclusions
7. Whilst the grant of permission suggests that the judge did not give consideration to all the available evidence particularly in the form of evidence from the partner's parents and Family Court proceedings, this is not entirely correct. In paragraph 53 of the decision the judge details and considers the relevance of Liverpool County Court orders which, the judge noted, did not refer to the appellant as the father of the child. The judge was entitled to conclude, from those orders, that the parties had not been in a subsisting marriage for all but a two week period and was entitled to note the serious allegations and counter-allegations made against each adult party to the proceedings even if the claims appear not to have been pursued.
8. I have noted from the judge's Record of Proceedings, that he did hear brief evidence from the partner's father. However, I conclude that the judge's failure to refer to that evidence or documentary evidence from the mother is not material when, for the purpose of the judge's examination of private and family life, the partner stated that she would go with the appellant to Iraq and take her daughter with her. On that basis the family would remain together.
9. It is unfortunate that the appellant did not attend the hearing before me in order to comment on issues raised by the respondent. This decision is therefore based upon the submissions of the respondent and my consideration of the detailed and cogently reasoned decision of the judge which, although it reveals the error in relation to witness evidence to which I have referred, does not show it to be a material error such that it should be set aside. In reaching this conclusion I also bear in mind that the appellant's application for leave re-asserts that he is the father of his claimed partner's child but does not contend that the judge erred in his consideration of other evidence relating to the genuineness and subsistence of his relationship.
Notice of Decision
The decision of the First-tier Tribunal does not show a material error on a point of law and shall stand.
Anonymity
I refer to the anonymity direction made at the beginning of this decision.

Signed Date 6th October 2016

Deputy Upper Tribunal Judge Garratt