Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/03235/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 February 2017
On 27 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS

Between

nusiratu kofoworola amoo
(anonymity direction not made)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr H Amoo
For the Respondent: Mr S Whitwell, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against the decision of First-tier Tribunal Judge Eldridge promulgated on 11 July 2016 dismissing the Appellant’s appeal against A decision of the Respondent dated 1 December 2015 refusing to issue an EEA family permit.

2. The Appellant is a citizen of Nigeria, born on 16 August 1950. It is said that she is the mother of Mr Hafeez Oluwagbemiga Owolabi Amoo (‘the sponsor’). The sponsor is married to Ms Abiodun Falilat Adegun, a Belgian national with a permanent right of residence in the UK. The Appellant applied for a family permit on the basis that she was a family member of a qualified person within the meaning of the Immigration (European Economic Area) Regulations 2006.

3. It is to be noted that the Respondent wrongly made reference to regulation 8, which applies to extended family members, in the Notice of Immigration Decision whereas the Appellant’s case was based on regulation 7 and in particular regulation 7(1)(c) “dependent direct relatives in his ascending line or that of his spouse or his civil partner”. In turn, whether or not to issue an EEA family permit was the subject of regulation 12(1).

4. The First-tier Tribunal Judge was alert to this error on the part of the Respondent: see his Decision at paragraph 7. In the event this particular error was not material to the basis of the Respondent’s decision, and in turn not material to the consideration of the First-tier Tribunal Judge.

5. The basis of the Respondent’s decision was that it was not accepted that the Appellant was related as claimed to the sponsor. The following is stated in the Notice of Immigration Decision:

“You have stated that you propose to join your purported daughter-in-law, Abiodun Adegun in the United Kingdom who is a Belgian national and is married to your claimed son, Hafeez Amoo. As evidence of your relationship you have provided your claimed son’s birth certificate in the name Muhammed Afix Oluwagbemiga Amoo and an affidavit to explain the change in name. However affidavits are produced and attested by officials without the need to produce any substantiating documentation. They are in effect a self-declaration based solely on the word of the declaring party. Therefore I place little weight on the submission of such documents. In light of the above I am not satisfied that you have provided evidence of your relationship as claimed.”

6. The Appellant appealed to the IAC. She requested that her case be decided ‘on the papers’ without a hearing.

7. The First-tier Tribunal Judge dismissed the appeal for reasons set out in his Decision and Reasons.

8. The Appellant sought permission to appeal which was initially refused by First-tier Tribunal Judge Baker on 8 December 2016, but subsequently granted by Upper Tribunal Judge Jordan on 9 July 2017.

9. The Appellant has been represented before me today by the sponsor. During the course of submissions he has identified a number of errors on the face of the Judge’s decision. For example: at paragraph 1 his name is misspelt both in respect of the second and third names; at paragraph 10 the Judge refers to a birth certificate both being dated 11 August 1978 and also stating the date of birth of the sponsor as being 11 August 1978, whereas in fact the birth certificate specified the date of birth as being 2 February 1976; at paragraph 16 Mr Amoo draws my attention to the Judge referring to the Appellant not being entitled “to a residence card”, whereas in fact what she was seeking was a family permit. I do not consider these matters either individually or cumulatively represent a lack of due care in considering the appeal such as to amount to an error of law, unfortunate though such slips may be.

10. Be that as it may, there are more significant matters raised on behalf of the Appellant. In particular it is said that the Judge failed to take into account items of significant evidence that had been filed on behalf of the Appellant. In particular two documents are identified on behalf of the Appellant as having been filed with the Tribunal prior to the date of the First-tier Tribunal Judge’s decision. One is a letter from St. Nicholas’ Hospital in Lagos dated 12 November 2015 addressed ‘To whom it may concern’ and headed ‘Confirmation of birth’. I am told by the sponsor that this document relates to his birth, albeit that he is not expressly mentioned on it. The document confirms that Mr Abdullaahi Oluwamishola Amoo and the Appellant were delivered of a male baby on 2 February 1976. It is suggested that this document in combination with the sponsor’s birth certificate indicating a date of birth of 2 February 1976, and his marriage certificate in which Mr Abdullaahi Oluwamishola Amoo is named as his father, when taken together point in only one direction - that is that the sponsor is the son of the Appellant.

11. The second document that is emphasised as having been disregarded or not otherwise adequately addressed by the First-tier Tribunal Judge is a document headed “Sworn affidavit for correction of name” signed by the Appellant on 27 May 2015. This document also contains a heading “In the Magistrate Court of Lagos State of Nigeria Holden at Mushin”, and in content contains an assertion that the Appellant is the biological mother of Hafeez Oluwagbemiga Owolabi Amoo born on 2 February 1976, and that his birth certificate is written differently to read Muhammed Afix Oluwagbemiga Amoo. The document, at paragraph 5, states that it is “now required for record and official purposes and to notify the authorities concerned to take note”. The sponsor argues that the significance of this document was that it was a declaration before a Commissioner for Oath confirming the nature of the relationship between the Appellant and the sponsor, and also seeking to explain and register with the authorities in Nigeria the different stylisation of the sponsor’s name on his birth certificate compared to that by which he is now known.

12. In this latter regard the sponsor in particular directs attention to the decision of the First-tier Tribunal at paragraph 12 in which amongst other things it is said “I have seen no statement from the Appellant”.

13. I accept Mr Whitwell’s suggestion that the Judge is making reference to not having seen a witness statement filed as a witness statement in the appeal. Be that as it may, it seems to me that the substance of the document signed on 27 May 2015, even if not being a witness statement deposed in the appeal, was something that needed to be expressly addressed. I similarly consider that the document from St. Nicholas’ Hospital might if duly considered have had some, albeit not quite such significant, weight attached to it in an overall consideration of the Appellant’s case.

14. The Judge initially addressed the documents in the appeal at paragraph 6 of his Decision:

“I have reached my decision having regard to all the papers that remain on file. I am not going to set those documents out here. Many of them are wholly irrelevant. For instance, probably three-quarters of the bundle provided to me is a copy of the Respondent’s guidance in respect of applications under the Regulations. Much of the rest relates to matters that are not in dispute. For instance, there are contractual documents. There are also financial documents but the issue here concerns the nature of the relationship.”

Then, under the heading ‘Credibility and Findings’, and over the course of paragraphs 9 to 12, the Judge refers to some of the documents that were before him - but makes no express reference to the declaration of the Appellant dated 27 May 2015 or the St. Nicholas’ Hospital document.

15. Mr Whitwell seeks to argue that given that this was a case decided ‘on the papers’ the materiality of these documents are so marginal as to not make any difference to the outcome in the appeal. In this regard he argues in particular that the crux of the Judge’s conclusion was that there had been no opportunity to test the evidence of the sponsor and in those circumstances it is, submits Mr Whitwell, difficult to see that the Judge would have reached any different conclusion. In this context I note the following from paragraphs 11 and 12:

“11. The Appellant has also provided a signed deed poll in respect of a change of name from that in the birth certificate to the name I have quoted above and used in the application. There is an affidavit witnessed on 24 November 2015 in which Mr Amoo sets out what he says has happened to his name over the years.

12. It is not possible for the Respondent to question him about any of this because a decision on the papers was sought. I find both of these documents to have little probative value. They are both signed in the weeks immediately after the refusal. I have seen no statement from the Appellant, although there is a suggestion in some messages sent from Mr Amoo to her about what she would need to state in any such document. There are no confirmatory documents from anyone who knows the parties in Nigeria.”

16. The reference to a ‘signed deed poll’ in context appears to be a reference to a document signed by the sponsor on 9 December 2015 headed ‘Change of Name Deed Poll’. A significant element of the Judge’s reasoning in attaching little probative value to the documents that emanated from the sponsor in respect of his change of name by deed poll and his affidavit of 24 November 2015 is that they were “signed in the weeks immediately after the refusal”. That reasoning cannot be said to apply to the declaration of the Appellant which predates the decision of the Respondent by approximately five months. In my judgement, in such circumstances I cannot assume that had the Judge given due and proper consideration in particular to the Appellant’s affidavit of 27 May 2015 that he would have reached the conclusion that it could be marginalised for the same reason that he applied to the evidence emanating from the sponsor.

17. For these reasons I am persuaded that there was a material error of law, and in the circumstances the decision of the First-tier Tribunal Judge must be set aside. The decision in the appeal therefore requires to be re-made.

18. The sponsor has since the grant of permission to appeal forwarded a number of documents at different times to the Tribunal to support the Appellant’s case. The Respondent has not had an opportunity to consider those documents, and certainly there is no considered response to them; further, Mr Whitwell is presently without instruction. Additionally, it is to be noted that it was a feature of the decision of the First-tier Tribunal Judge that some reliance was put on the absence of any oral evidence. The sponsor has indicated to me today that he would be willing to attend a re-hearing of the appeal to give oral evidence in support of the case.

19. Reference has also been made repeatedly in these proceedings to the possibility of obtaining DNA evidence. This was mentioned in the decision of the First-tier Tribunal and indeed was mentioned with considerable emphasis in the decision of Upper Tribunal Jordan in granting permission to appeal. As Judge Jordan identified it was not for the Tribunal to compel the production of any particular evidence but “where there is evidence that can probably (if not certainly) prove paternity/maternity beyond doubt it is simply foolhardy not to submit it”. The sponsor has today indicated that both he and the Appellant have given some thought to obtaining DNA evidence and would anticipate that if he were to go down that route it might be possible to obtain such evidence before the end of March. In all those circumstances it seems to me that the most expedient, fair, and just disposal of this appeal is to remit it to the First-tier Tribunal for an oral hearing. In that regard of course there has not yet been an oral hearing. In the meantime that will afford the Appellant the opportunity of obtaining DNA evidence. Bearing in mind that the importance and significance of DNA evidence as a means of proving the relationship has repeatedly been emphasised in these proceedings, the Appellant should be aware – and is hereby alerted - that in the absence of such evidence it is open to a Tribunal Judge to draw an adverse conclusion about a failure to provide evidence that might reasonably be available and would be near determinative of the issues in the appeal. It also seems to me that in all of the circumstances, bearing in mind the somewhat piecemeal manner in which the supporting evidence has been submitted during the course of these proceedings, that it is appropriate now for the Appellant, whether herself or through the sponsor, to file a single consolidating bundle of evidence that addresses the issue of relationship such that the Tribunal tasked with re-making this decision will have ready and easy access to the relevant documents and will not have to pick its way through an unattractive pile of separate bundles spread variously across the file herein. Necessarily any further evidence must be filed and served on the Respondent to afford the Respondent an opportunity to consider such matters.

20. The following Directions are issued accordingly:

Directions

(i) The decision in the appeal will be re-made before the First-tier Tribunal with all issues at large, albeit in practice that simply means the issue of relationship between the Appellant and sponsor, before any First-tier Tribunal Judge other than First-tier Tribunal Judge Eldridge.

(ii) The appeal is to be listed for an oral hearing notwithstanding that this appeal was initially set down for a paper hearing. The sponsor should attend that hearing ready and willing to give evidence in support of the appeal, as well as making submissions on the Appellant’s behalf (as indeed he has done so very ably today).

(iii) The Appellant is to file and serve by 28 March 2017 a consolidating bundle containing all of the evidence relied upon in respect of establishing the relationship between the Appellant and the Sponsor. (This Direction was issued orally at the hearing, and so the sponsor is aware of the timetable irrespective of the date of promulgation of this Decision.)

(iv) If in the meantime DNA evidence is obtained, it should be filed and served at the first available opportunity. Otherwise any evidence further to the consolidating bundle should be filed and served at least fourteen days prior to the re-listed hearing before the First-tier Tribunal.

Notice of Decision

21. The decision of the First-tier Tribunal Judge contained a material error of law and is set aside.

22. The decision in the appeal is to be re-made before the First-tier Tribunal by any judge other than First-tier Tribunal Judge Eldridge pursuant to the Directions herein.

23. No anonymity direction is sought or made.

The above represents a corrected transcript of an ex tempore decision given at the conclusion of the hearing.

Signed: Date: 23 March 2017

Deputy Upper Tribunal Judge I A Lewis