Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/01567/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 January 2017
On 3 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

PHUONG THI NGUYEN
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms M Mac of Mac & Co,
For the Respondent: Ms A Fijawala, Senior Home Office Presenting Officer

DECISION AND REASONS

1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.

2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge O'Rourke promulgated on 10 October 2016, which dismissed the Appellant's appeal.

Background

3. The Appellant was born on 8 November 1984 and is a national of Vietnam. Her child was born on 6 November 2014 and is a British Citizen.

4. On 6 October 2015 the Secretary of State refused the Appellant's application for a derivative residence card under regulation 15A of the Immigration (EEA) Regulations 2006.

The Judge's Decision

5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge O'Rourke ("the Judge") dismissed the appeal against the Respondent's decision.

6. Grounds of appeal were lodged and on 4 January 2017 First-tier Judge Parker granted permission to appeal stating inter alia

I have carefully read the decision. At paragraph 12(iii)-(v) the Judge noted evidence which tended to undermine the appellant's credibility and, at paragraph7(iv), recorded that friends look after her child when she works. However, the Judge has failed to provide adequate reasons for finding that care of the child is shared equally with an exempt person. The decision contains an arguable error of law. Permission to appeal is granted.
The Hearing

7. (a) For the appellant, Ms Mac moved the grounds of appeal. She told me that there was ample evidence before the First-tier that the appellant and her daughter lived together in Slough. She took me to the birth certificate reproduced in the respondent's bundle and told me that the birth certificate confirmed that the appellant's child was born in Slough, and her birth was registered in Slough. She told me that the child's father lives in a different county, so that the birth certificate was evidence that the child's father played no role in her life. She then took me to the letter from Estate agents (reproduced at annex D of the respondent's bundle) and told me that there was clear evidence that the appellant and her child live together in Slough.

(b) Ms Mac referred me to the letter from British Gas providing an annual gas consumption statement addressed to the appellant's father in Hertfordshire, and told me that that was further evidence which indicated that separate households were maintained & that the appellant's child's father played no part in the child's life. She reminded me that there is a letter from the child's father to confirm that he has nothing to do with either the appellant or the child. She told me that all of that evidence was before the First-tier, but the First-tier had taken inadequate account of the evidence. She urged me to set the decision aside and substitute my own decision allowing the appeal

8. For the respondent, Ms Fijiwala told me that the decision does not contain errors of law, material or otherwise. She told me that the submissions made for the appellant amounted to nothing more than a rehearsal of the submissions that were made to the First-tier tribunal, none of which identify an error of law in the decision. She told me that at [7] the Judge adequately summarises the appellant's claim and then, at [12], makes findings of fact drawn from the evidence presented before reaching conclusions at [13]. Ms Fijiwala told me that the Judge reached conclusions which were well within the range of reasonable conclusions available to him. She told me that the Judge took correct guidance in law. She drew my attention to the record of proceedings and asked me to consider the answers that the appellant gave to questions in cross examination. She urged me to dismiss the appeal and allow the decision to stand

Analysis

9. The appellant's child was born on 6 November 2014. It is beyond dispute that the appellant's child is a British citizen. In cross-examination, (before the First-tier) the appellant appears to accept that she lived with the father of the child until May 2015, despite separately saying that they separated the day after the child was born. The confusion appears to occur when the appellant is asked to consider the child's birth certificate against the British Gas statement intended to show that the father of the child lives in a separate county. The appellant also relies on a letter from Estate agents saying that she moved with her daughter into an address in Slough on 1 January 2015.
10. When I consider the documentary evidence and the record of proceedings it seems to me that the evidence before the First-tier was confusing. In the decision, the First-tier Judge makes findings of fact at [12]. He commences [12(iii]) by saying
The appellant has provided little evidence to show that she and the child live alone, without the father.
11. A fair reading of the decision indicates that the Judge found the appellant was neither a credible nor a reliable witness. At [12(v)] he finds the appellant to have been evasive in her oral evidence.
12. The central point in the respondent's decision is that the respondent does not accept that the appellant is the primary carer for her child. Instead the respondent believes that the appellant shares the care with the father of the child, who is an exempt person
13. To succeed the appellant would have to produce reliable evidence that she is the child's primary carer, as defined in regulation 15 of the 2006 regulations. It is clear that the evidence laid before the First-tier was intended to demonstrate that the child's father has dissociated himself entirely from both the appellant and the child.
14. At [12] of the decision the Judge gives his reasons for finding that the evidence led by the appellant is not reliable. The Judge gives clear reasons for finding the appellant was evasive and is neither a credible nor a reliable witness. Having made those findings, it is not surprising that the Judge commences his conclusions at [13] by finding that the appellant is not the primary carer for the child.
15. The submissions made on behalf of the appellant amounted to no more than a rehearsal of the submissions made to the First-tier. In effect, I was asked to consider the evidence of new and reach a different conclusion. I have to consider whether or not the decision promulgated on 10 October 2016 contains a material error of law. In submissions for the appellant no error of law was identified.
16. The findings of fact made by the Judge at [12] are findings which were open to the Judge on the evidence placed before him. The decision of the Judge discloses that he considered the evidence and, for the reasons given in the various subparagraphs of [12], found that the evidence placed before him was not reliable. It was for the appellant to produce reliable evidence that she is the primary carer of her child. The finding that the evidence produced is not reliable is a finding well within the range of reasonable conclusions open to the First-tier Judge.
17. It is because the Judge found that the evidence of the appellant was not reliable and because the Judge found that the documentary evidence did not resolve contradictions that the judge reached his conclusion, at [13(i)], that the appellant is not the primary carer for the child. The Judge then went further to find that care is shared with the father of the child. Because of the contradictory nature of the documentary evidence that is a conclusion which was reasonably open to the Judge.
18. Although criticism is the Judge's fact-finding exercise I find those criticisms have neither substance nor merit. The difficulty that the appellant cannot get around is the fact that the Judge gives adequate reasons for finding the evidence led to support her appeal to the First-tier to be unreliable. When faced with unreliable evidence, the correct conclusion for the First-tier to reach is that the appellant does not discharge the burden of proof. That is the conclusion that the First-tier Judge reached. There is no criticism of the guidance that the Judge took in law. The decision was manifestly within the range of reasonable decision is available to the Judge.
19. In Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC) the Tribunal held that (i) Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge; (ii) Although a decision may contain an error of law where the requirements to give adequate reasons are not met, the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant Country Guidance has been taken into account, unless the conclusions the judge draws from the primary data were not reasonably open to him or her.

20. There is nothing wrong with the Judge's fact finding exercise. In reality the appellant's appeal amounts to little more than a disagreement with the way the Judge has applied the facts as he found them to be. The appellant might not like the conclusion that the Judge has come to, but that conclusion is the result of the correctly applied legal equation. There is nothing wrong with the Judge's fact finding exercise. The correct test in law has been applied. The decision does not contain a material error of law.
21. The Judge's decision, when read as a whole, sets out findings that are sustainable and sufficiently detailed and based on cogent reasoning.
CONCLUSION
22. No errors of law have been established. The Judge's decision stands.
DECISION
23. The appeal is dismissed. The decision of the First-tier Tribunal stands.

Signed Date 2 February 2017

Deputy Upper Tribunal Judge Doyle