Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/02671/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 September 2016
On 20 September 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

MK
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Tampuri, legal representative, Tamsons Legal Services
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals the decision of First-tier Tribunal Judge Page, promulgated on 14 March 2016.
Background
2. The appellant was issued with a residence card on 2 June 2011, as the family member of a European Economic Area (EEA) national. On 17 November 2015, the appellant returned to the United Kingdom from Ghana. He was refused admission and his EEA residence card was revoked because it was not accepted that he remained a family member of his EEA national spouse. The appellant's claim to have a child with a Ghanaian national unlawfully residing in the United Kingdom was considered but it was concluded that it would be proportionate to remove the appellant.
3. When this matter came before Judge Page, initially on 2 February 2016, it was adjourned for the appellant to produce documentation in relation to divorce proceedings and for the respondent to make enquiries of HMRC to see if the appellant's spouse was exercising treaty rights in the United Kingdom. The appeal resumed on 9 March 2016. The judge noted that the mother of the appellant's child, S, did not attend. Judge Page concluded that the appellant had failed to discharge the burden upon him to establish that his wife was in the United Kingdom or exercising treaty rights. With regard to the appellant's Article 8 claim, the judge found no evidence of any family life between the appellant and his wife, the mother of S or S herself. The appeal was, accordingly, dismissed under the Immigration (European Economic Area) Regulations 2006 and the ECHR.
Error of Law
4. In the grounds of appeal, it was argued that the burden was on the respondent to show that the EEA sponsor was not in the United Kingdom; that the judge contradicted himself as to whether the sponsor had issued the divorce proceedings in the United Kingdom or not; that the judge had declined to hear from three witnesses who were present and that the judge made a mistake of fact in stating that no birth certificate for S had been provided. It was contended that S and her mother were present during the hearing.
5. In granting permission to appeal, First-tier Tribunal Judge Nightingale considered that the criticisms of the judge's conclusion regarding the EEA Regulations matter amounted to no more than disagreement with his findings. Permission was granted as it was said to be arguable that the judge overlooked the birth certificate and that his findings as to the appellant's parentage of a "British" child was arguably flawed.
6. The respondent, in her Rule 24 response, indicated that the appeal was opposed. It was said that the judge gave adequate reasons regarding the genuineness of the relationship between the appellant, his partner and child and was entitled to find on the basis of the evidence that the appellant was not in a genuine relationship with a partner and was not the child's father.
The hearing
7. When this matter came before me, Mr Tampuri attempted to argue that the HMRC evidence which showed a lack of economic activity by the EEA sponsor did not address an entire financial year. I did not permit him to pursue this argument, which was not raised in the grounds of appeal, did not feature in the grant of permission and was not raised in advance by way of a skeleton argument. He continued to argue that the burden of proof was on the respondent to show that the EEA sponsor was not in the United Kingdom or not exercising treaty rights despite the fact that permission to appeal was not granted on this basis. At this juncture, I drew his attention to the issue upon which permission had been granted and indicated that the birth certificate of the appellant's child was on the IAC case file and Mr Walker stated that the respondent had sight of the same.
8. There was then some discussion of the allegation made in the grounds, to the effect that the judge prevented the calling of the appellant's witnesses. I remarked that there was no supporting evidence as to what took place at the hearing and that it was not appropriate for Mr Tampuri, who represented the appellant before the First-tier, to give evidence and advocate simultaneously. Notwithstanding the foregoing, Mr Walker advised me that the note of the presenting officer who attended before the First-tier indicated that the judge did not allow cross-examination on the HMRC and divorce evidence and that the hearing proceeded by way of submissions only. In view of the contents of this note, I invited Mr Tampuri to respond. He replied that he had wished to call the appellant, the appellant's partner (the mother of S) and two others. He added that the appellant wished to rely on his relationship with his partner's British child.
Decision on error of law
9. At the end of the hearing, I announced that the judge made material errors of law in relation to his findings in respect of Article 8 alone. My reasons are as follows.
10. Permission to appeal was not granted in respect of the judge's findings under the Regulations. In any event, Mr Tampuri's submission, that the onus was on the respondent to prove that the EEA sponsor was not residing in the United Kingdom or exercising treaty rights, is plainly incorrect. In any event, the respondent produced evidence from HMRC which showed no evidence of any PAYE income by the sponsor for the 2015-2016 financial year nor any evidence that she was claiming benefits. If, as it appears to be contended, the sponsor was self-employed, the onus was on the appellant to provide this evidence to the judge and he failed to do so. Should further evidence come to light regarding the sponsor's whereabouts and economic activity after April 2015, it is open to the appellant to make the appropriate application to the respondent. Accordingly, the judge's findings under the Regulations are upheld.
11. Turning to the human rights grounds, at [27] The judge found that "there is no evidence that the appellant and this woman have had a child together called (S)." Elsewhere in the same passage, he remarks upon the absence of a birth certificate relating to S. Yet, at page B18 of the appellant's evidence, is a photocopy of a certified copy of S's birth certificate naming both parents, including the appellant. The judge's error of fact is material because at [33] the judge suggests that the appellant is not the father of S and concludes that he is not satisfied that the appellant has any family life in the United Kingdom.
12. Of even more relevance, is the appellant's relationship with his partner's child, O, who is disabled, is a British citizen and thus a qualifying child under section 117B(6) of the 2002 Act. Owing to the fact that neither the appellant nor his partner gave evidence, the judge's concerns regarding the extent of family life, expressed between [25] and [30] were not addressed. I conclude that the judge fell into procedural error in deciding the appeal on the basis of submissions alone when it certainly appears that there were four witnesses present at the hearing with relevant evidence to give regarding the claimed family life between the appellant, his partner, S and O.
13. For the foregoing reasons, the judge's findings, in respect of Article 8, cannot be sustained.

Conclusion
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 the decision except for the findings under the Regulations.

Directions
This appeal is remitted to be heard, de novo (in relation to Article 8 ECHR alone), by any First-tier Tribunal Judge except Judge Page
The appeal is to be listed for a hearing at Taylor House
Time estimate is 3 hours (4 witnesses)
A Twi interpreter is required

No anonymity direction was made by the First-tier Tribunal. In view of the fact that this claim involves minors, I consider it appropriate to continue the said direction in the following terms:
"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. "

Signed Date: 16 September 2016

Upper Tribunal Judge Kamara