Tribunal decisions

The decision

IAC-AH-LR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05746/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 March 2017
On 31 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

ms daniah sally-ann debbie charles
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr T Gaisford of Counsel
For the Respondent: Mr K Norton

DECISION AND REASONS

Introduction
1. The appellant is a citizen of Grenada. She has two children, A and S born 21 December 2014 and 17 June 2011 respectively. The children are dependent on the outcome of their mother’s appeal. The appellant and her eldest daughter, A, visited the United Kingdom on 8 July 2010. They returned to Grenada in December 2010. On 15 December 2011 the appellant returned to the United Kingdom and was granted six months’ leave to enter as a visitor together with her two daughters. The appellant and her daughters did not return to Grenada at the end of their six months’ leave. The appellant came to the attention of the authorities when she was arrested by the Metropolitan Police for traffic offences. She was charged with driving with no insurance, having no driving licence and with theft of a motor vehicle. She was also cautioned for child neglect. She was served with ISI51A notice as an over stayer on 2 February 2014. The appellant claimed asylum subsequent to her arrest on 27 February 2014.
2. The respondent refused the appellant’s claim for asylum on 13 March 2015. The respondent did not consider that the appellant would face a risk of persecution if she were to be returned to Grenada. Regarding Article 8 of the ECHR the respondent considered that the appellant failed to fulfil the eligibility criteria under Section E-LTR of the Immigration Rules and that the appellant failed to fulfil EX 1 of Appendix FM, that the appellant failed to fulfil the requirements for limited leave to remain as a parent and that the appellant’s children did not have any exceptional circumstances such that they could return with the appellant to Grenada. The respondent considered Section 55 of the Borders, Citizenship and Immigration Act 2009 and finding that it would be in the children’s best interests to return with the appellant to Grenada. The respondent also considered that the appellant did not qualify for leave to remain under Rule 276ADE.
The appeal to the First-tier Tribunal

3. The appellant appealed against the respondent’s decision to the First-tier Tribunal. In a decision promulgated on 7 October 2015 First-tier Tribunal Judge E B Grant dismissed the appellant’s asylum and Article 8 appeal. The judge rejected the appellant’s evidence with regard to her asylum claim finding that the appellant had not told the truth before the Tribunal or to the respondent and dismissed her asylum appeal. There has been no appeal against the judge’s findings and decision with regard to the asylum claim.
4. With regard to the Article 8 claim the judge found that it was in the best interests of the appellant’s children to remain with the appellant and to return to Grenada with her. The judge found that the public interest in immigration control outweighed the interests of the appellant and her daughters.
The Appeal to the Upper Tribunal
5. The appellant applied for permission to appeal against the First-tier Tribunal’s decision. On 19 November 2015 First-tier Tribunal Judge Ford refused permission to appeal. The appellant renewed her application for permission to the Upper Tribunal and on 17 November 2016 Deputy Upper Tribunal Judge L J Murray granted the appellant permission to appeal.
6. The grounds of appeal set out five grounds. In essence ground 1 asserts that the First-tier Tribunal Judge failed to consider the Article 8 rights of the appellant’s minor sister and the appellant’s mother. Ground 2 asserts that the judge made a material misdirection of law in failing to make a finding in respect of whether family life exists between the appellant, the appellant’s daughters, the appellant’s mother/grandmother and the appellant’s minor sister. It is asserted that submissions were made pursuant to Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31. Ground 3 sets out that the judge erred in failing to consider the best interests of the appellant’s minor sister. Ground 4 submits that the judge failed to consider Article 8 outside the Immigration Rules and ground 5 asserts that the judge misconstrued a material submission in that it was never advanced that the appellant’s eldest daughter’s special needs were caused by the hurricane in Grenada.
7. In oral submissions Mr Gaisford submitted that there were no findings on whether family life between the appellant, her mother and between the siblings existed. He submitted that this was a point that was argued before the First-tier Tribunal Judge. He referred to paragraph 24 of the First-tier Tribunal’s decision and indicated that in that paragraph there was a very generic reference to family life. However it is not clear from the decision as to whether or not the judge considered that the relationship between this family unit consisting of five people, of whom three are minors, constituted family life within the meaning of Article 8. He referred to paragraph 22 of the First-tier Tribunal’s decision and submitted that the whole focus of the judge’s consideration was on the appellant and her two children and the effect on them of removal. The judge had not considered the impact of a decision to remove on the appellant’s mother and her minor sibling. There was evidence before the Tribunal that the relationship between the appellant, her children and her mother and minor sibling was one that demonstrated a level of dependence that went beyond the normal ties between family members. The case was argued on the basis that the appellant and her daughters have since 2012 been living together under the same roof. The appellant’s mother provides for the appellant and her children evidencing dependency. He submitted that there was an obligation on the judge to make a finding as to whether or not there was family life. He submitted that if the judge had found that there was no family she was required to provide reasons. There had been no engagement with the minor sibling’s best interests. She is a young child and evidence was produced to demonstrate that she has a particularly close relationship with the appellant’s eldest daughter. The impact of removal on her and her best interests had not been considered despite setting out a paragraph from the case of EV (Philippines) and Others v Secretary of State for the Home Department [2014] EWCA Civ 874.
8. Mr Norton submitted that the duty was on the appellant to show that any removal of the appellant and her two children would have a detrimental effect on her minor sibling. No such evidence had been submitted. With regard to the asserted error that the judge had failed to make a finding as to whether family life existed he submitted that it was clear from paragraph 22 of the decision where the judge set out “I accept it will be a wrench for the children to leave their grandmother and her British daughter, however family contact can be maintained in the usual way by family visits” demonstrates that the judge clearly had in mind that family life existed. He submitted that there cannot be a wrench if there is not family life. The judge clearly had in mind the family relationship but considered that it was proportionate nonetheless to remove the appellant.
9. In reply Mr Gaisford submitted that the respondent’s submission that the judge took the nature and strength of the relationship into account supported his argument. He submitted that it is not clear what the judge had decided and that merely taking the strength of the relationship into account falls below the obligation that was upon the judge to make a clear and reasoned finding in respect of family life. He submitted that it is clear in paragraph 22 that the judge was only considering removal from the point of view of the appellant and her daughters.
Discussion
10. The judge set out at paragraph 22:
“22. Having come to that conclusion and with the guidance of the Court of Appeal in EV Philippines I find that the assessment of the best interests of the two children must be taken into account in the context of their mother having no right to remain in the United Kingdom. I find as a matter of fact that it is in the best interests of the two children to remain in the care of their mother. I accept it will be a wrench for the children to leave their grandmother and her British daughter, however family contact can be maintained in the usual way by family visits. The appellant’s mother has two other children in Grenada and I am satisfied that arrangements can be made within the family for the appellant and her two daughters to have somewhere to stay while they re-establish themselves in Grenada. The appellant has family in Grenada including not only a sister and a brother but also an aunt as well as her own father.
23. I therefore find that it is in the best interests of the children to remain with their mother and to return to Grenada with her. None are British citizens with any entitlement to remain in the United Kingdom. The fact that [A] is receiving one to one support at school is not a reason for finding she can remain in the United Kingdom on Article 8 grounds. She is not a clever child but does not render her circumstances exceptional in any way.
24. Overall I find on the balancing exercise on proportionality taking into account and applying Section 117 of the 2002 Act, I find that the interests in immigration control outweighs the interests of the appellant and her daughters in retaining their private and family life in the United Kingdom and I dismiss the appeal on all grounds”.
11. It is clear from the Record of Proceedings that submissions were made pursuant to Kugathas that family life existed between the appellants and their mother/grandmother and her daughter/sibling. The judge has not made any explicit finding as to whether or not family life exists (in the Article 8 sense) between this family unit consisting of five people. The evidence before the Tribunal set out details about the relationship between the appellant and her mother and in particular between the minor sibling and the appellant’s eldest daughter. There was evidence of the dependency of the appellant on her mother. Mr Norton’s submission was that the judge that the judge clearly had in mind that family life existed. If that was the case then the judge was required to consider the impact of removal on the appellant’s mother and minor sibling when conducting the proportionality exercise. I do not accept Mr Norton’s submission. There was no finding by the judge in respect of whether or not family life existed. The case was advanced on this basis and the judge erred in failing to make a finding in this regard. There is no assessment of the impact of removal on the mother/grandmother and minor sibling. Whilst it was open for the judge to arrive at a conclusion that removal was proportionate, in the absence of a finding that no family life existed, the judge erred by failing to assess proportionality in light of the impact on the entire family unit.
12. The judge has considered the best interests of the appellant’s daughters but has failed to consider the best interests of the appellant’s minor sibling’s best interests.
13. For the above reasons I therefore find that the decision of the First-tier Tribunal contained material errors of law.
14. Mr Gaisford made submissions that the case should be remitted to the First-tier Tribunal as a full assessment as to whether or not there was family life would be required to be undertaken and also an assessment of the best interests of the appellant’s minor sibling’s best interests.
15. I considered the Practice Statement concerning transfer of proceedings. I am satisfied that the nature and extent of judicial fact finding that is necessary in order for the decision in the appeal to be re-made is such, having regard to the overriding objective, that it is appropriate to remit the matter to the First-tier Tribunal. I remit this case for a de novo hearing before the First-tier Tribunal at Hatton Cross to be heard on the next available date.

Notice of Decision
The decision of the First-tier Tribunal contained material error of law. I remit this case to the First-tier Tribunal for a de-novo hearing.

No anonymity direction is made.

Signed P M Ramshaw Date 30 March 2017

Deputy Upper Tribunal Judge Ramshaw