Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-002842
First-tier Tribunal No: EA/05777/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 28 March 2023

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

RANSFORD OWUSU BOADI
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

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

Heard at Field House on 27 January 2023

DECISION AND REASONS
1. This is the re-making decision in the Appellant’s appeal against the Respondent’s refusal to issue him with a family permit under the Immigration (European Economic Area) Regulations 2016 ("the Regulations"). By a decision of mine promulgated on 2 December 2022 I concluded that the First-tier Tribunal had materially erred in law when initially dismissing the Appellant’s appeal.
2. By way of brief background, the Appellant is a national of Ghana apparently born in September 2001. He applied for a family permit to join who he claimed to be his mother and stepfather (the latter being a Dutch national) in the United Kingdom. The Respondent had originally concluded that the Appellant was not related to either of the Sponsors. My error of law decision is annexed to this re-making decision. In summary, I concluded that the First-tier Tribunal Judge had failed to take account of what was potentially relevant evidence going to the question of whether the Appellant was related to his mother, as claimed. That evidence consisted of what were described as “weighing records” (a document perhaps akin to the red books provided to the parents of newborn children in the United Kingdom in which relevant details are recorded including weight, height and any other relevant medical issues, together with progression during the course of postnatal interaction with the NHS). Whilst the document was in no way decisive of the relationship, I concluded that the judge should have taken it into account and it could have had a material bearing on the outcome. I set the judge’s decision aside and issued directions for a resumed hearing and a provision of any further relevant evidence.
Non-appearance by the Sponsors and a failure to engage with the appellate process
3. By the time of the resumed hearing, it had become very apparent that neither the Appellant nor his Sponsors had engaged with the appellate process in any meaningful way.
4. Although he had provided some limited documents in advance of his appeal in the First-tier Tribunal, the Appellant had elected for his case to be decided without a hearing. When the error of law hearing came around, there was no appearance by the Sponsors, nor any communications for why this was the case. I had been satisfied that the relevant notice of hearing had been properly communicated and therefore I proceeded in their absence.
5. In terms of the resumed hearing, I undertook careful checks on the Upper Tribunal’s system and was entirely satisfied that the notice of hearing had been sent to the email address on record for the Appellant and by post to the residential address of the Sponsors. Yet again, however, there was no appearance and no communications as to why this was the case. Further, there had been no additional evidence submitted in advance of the resumed hearing.
6. In all the circumstances, I considered rule 38 of the Upper Tribunal Procedure Rules and decided that it was fair and in the interests of justice to proceed in their absence.
The evidence
7. I have considered the Respondent’s original First-tier Tribunal bundle together with the “weighing records”, the marriage certificate for Mr Kwame Osei Nimako and Ruby Ofosu, and a certified copy of an entry in the Register of Births.
Submissions
8. Mr Avery submitted that the evidence provided by the Appellant was insufficient to show that he was related to the claimed mother. The “weighing records” were unreliable. The colour copy provided by the Appellant showed that his name had been written in black ink whilst the following information was in blue ink. The relevance of this was that the name was the very first entry in the document and it was of real concern that this immediately preceded information in a different coloured ink without any explanation as to why this would have been the case. In addition, Mr Avery submitted that the handwriting for the Appellant’s name was different to that of the other entries. Mr Avery submitted that the certified copy of the entry of the birth register was also unreliable. The birth had apparently been registered on 15 October 2020, many years after the birth itself. The absence of any further evidence from the Appellant was, in Mr Avery’s submission, “telling”. In addition, even if the Appellant had been able to prove the claimed relationship, there was no evidence as to his dependency on the Sponsor, a requirement under regulation 7(1)(b) of the Regulations now that the Appellant was over the age of 21.
9. At the end of submissions I reserved my decision.
Findings and conclusions
10. I find as a fact that the Appellant has not shown that he is related to his claimed mother. In essence, I agree with the submissions put forward by Mr Avery.
11. Whilst the “weighing record” had apparent substance to it when I considered the document at the error of law stage, on reflection at this point in the proceedings I am satisfied that there are significant problems with the reliability of the information contained therein. In particular, it is quite apparent that the Appellant’s name is recorded in a different coloured ink to the entries immediately following thereafter. This is problematic and has not been explained in any way by evidence from the Appellant. Of less significance, but nonetheless relevant, is the fact, as I find it to be, that the handwriting for the Appellant’s name and the other entries is different. Again, there has been no explanation in respect of this.
12. In respect of the certified copy of the entry of the birth register, it is indeed dated some nineteen years after the birth, a problem identified in the Respondent’s original refusal letter. This undermines the weight attributable to this particular document.
13. Further, it is a simple fact that the Appellant has not engaged in the appellate process, as mentioned earlier in my decision. He has had ample opportunity to provide, at the very least, further documentary evidence or witness statements going to the relevant issues in his case. Not only has he failed to do this, but the Sponsor has now failed to attend two hearings in the Upper Tribunal.
14. In all the circumstances, and having considered the evidence as a whole, the Appellant is not, I find, the child of the Sponsor and his appeal must fail on that basis alone.
15. Further and in any event, now that the Appellant is over 21 he was required to prove that he was dependent on the Sponsor. This he has failed to do. There is no evidence on the point. I appreciate that the central issue in his case up until his 21st birthday was that of the claimed relationship. However, the failure to have engaged with these proceedings has in effect led to the absence of any further evidence on the issue of dependency, which might have been provided along with other evidence relating to the relationship issue.

Notice of decision
The decision of the First-tier Tribunal involved the making of an error of law and that decision has been set aside.
I re-make the decision in this appeal, dismissing it by reference to the Immigration (European Economic Area) Regulations 2016.

H. Norton-Taylor
Judge of the Upper Tribunal
Immigration and Asylum Chamber

20 February 2023
ANNEX: ERROR OF LAW DECISION

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2022-002842

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 October 2022

Extempore
…………………………………

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

MR RANSFORD OWUSU BOADI
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance or representation
For the Respondent: Mr D Clarke, Senior Presenting Officer

DECISION AND REASONS
1. The Appellant appeals against the decision of First-tier Tribunal Judge Fox (the judge) promulgated on 18 January 2022 by which the Appellant’s appeal against the Respondent’s refusal of his human rights claim was dismissed.
2. The Appellant is a citizen of Ghana born in September 2001. He applied for a family permit under the Immigration (European Economic Area) Regulations 2016 ("the Regulations") to join his mother and step-father (a Dutch national – the Sponsor) in the United Kingdom. The basis of the refusal was that the Respondent was not satisfied that the Appellant was related to his claimed mother and step-father. It was said that evidence provided by the Appellant, including a birth registration certificate and what was described as a weighing book, was not reliable evidence of the claimed relationship.
3. The Appellant elected to have his subsequent appeal decided without a hearing. It is also to be noted that the Appellant was not legally represented at any stage.
4. The appeal came before the judge on 7 January 2022 as a “paper case”. The judge’s decision is extremely brief, running to only 13 paragraphs. The judge stated that the burden rested with the Appellant to demonstrate that he was entitled to a family permit. It was said that the relevant date was that of the Respondent’s decision (that is not correct: in EEA appeals the relevant date is that of the hearing or consideration of the appeal). Under the subheading “Evidence” the judge noted that the Respondent had not filed or served a bundle of evidence and he noted that the Appellant’s bundle comprised a number of items of evidence including, it was said, the Appellant’s “birth certificate”. It is as well to set out the judge’s findings on the appeal in full:
“8. The Appellant has failed to satisfy the burden upon him to the relevant standard. Upon the available evidence I do not accept that the Appellant is related to the Sponsor as claimed.
9. The Appellant continues to rely upon the same documentation to pursue the appeal. He objects to the Respondent’s interpretation of the document to confirm his identity as the Sponsor’s step-son.
10. There is no dispute that the Sponsor married on 28 October 2020. The dispute arises from the reliance upon a document obtained on 15 October 2020 to register the Appellant’s birth 19 years after the event.
11. Upon the available evidence it is reasonable to conclude that the Appellant’s mother travelled to Ghana to register the Appellant’s birth and then returned to the UK to marry the Sponsor. The reason for the timing of these 2 events is unknown.
12. The Respondent is entitled it rely upon the objective material to raise concerns about the reliability of the Appellant’s birth certificate. The Appellant continues to rely upon the same evidence to maintain his assertion that the Sponsor’s marriage created a nexus between them for the purpose of the EEA Regulations.
13. The Respondent’s decision remains reasonable in the absence of further evidence to demonstrate that full reliance should be placed on the current documentation. The Appellant’s subjective explanation is insufficient to address the Respondent’s concerns.”
The appeal was accordingly dismissed.
5. The Appellant’s grounds of appeal can be summarised as follows. The judge had erred in his consideration of the “birth certificate”; the judge had failed to consider what was described as the “child health records” (the same document described as the “weighing records” in the reasons for refusal letter); and the judge had failed to properly consider the US Department of State website which had been relied on in the reasons for refusal letter. Permission was granted on all grounds.
6. It appears as though the Appellant remains unrepresented. There was no appearance at the hearing before me of either the Appellant’s mother or his step-father. Having made enquires, I was satisfied that notice of hearing had been sent to both the relevant email and residential addresses on file. There had been no communications as to any reasons for non-attendance. In all the circumstances I concluded that it was fair and in the interests of justice to proceed in the Appellant’s absence pursuant to Rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
7. For the Respondent, Mr Clarke acted with his customary commendable candour in providing assistance to the Tribunal in the absence of the Appellant. He did not concede any particular matters, but noted that the source material which underpinned the reference to country information relied on in the reasons for refusal letter provided a somewhat wider picture than that asserted by the Respondent in her decision and then deemed to be “reasonable” by the judge in his decision. According to that source material, whilst birth registration certificates obtained some years after the birth of a child would not necessarily be reliable, it was noted that documents such as “weighing records” (such as those produced in the present case) could be of some value in assessing a claimed relationship between a child and the claimed parent.
8. At the end of the hearing I announced my decision that the judge had materially erred in law and that his decision should be set aside. My reasons for this are as follows.
9. First, there is no reference whatsoever to the additional evidence relied on by Appellant over and above the birth registration certificate. Specifically, no reference was made to the “weighing records” which I am satisfied were before him. Whilst clearly not decisive, that evidence indicated on its face that the Appellant was born when he says he was and that his parents are his claimed mother and the Sponsor. The records appear to be contemporaneous with the Appellant’s birth in 2001. It is right that the judge noted that the Appellant was relying on, at least in part, the same evidence that had been provided to the Respondent, but that did not obviate the need to consider the evidence on its merits and in conjunction with all other evidence in the case. The failure to have engaged with a material item of evidence constitutes an error of law in the circumstances of this case.
10. The second error is the judge’s failure to have engaged with the “objective material” referred to at paragraph 12 of his decision. The reasons for refusal letter quoted a passage from the US State Department Report. However, as very fairly pointed out by Mr Clarke, the source material underpinning that made specific reference to the potential value of “weighing records” such as those provided in this case. Thus the judge failed to have any regard to “objective material” which may have been favourable to the Appellant’s claim. This is a further error of law.
11. Finally, and in a sense connected to the previous two, the terminology used by the judge in paragraphs 11-13 gives rise to the very real danger that he was conducting some form of a review of the Respondent’s decision, rather than undertaking a full-merits assessment, as he was bound to do in an appeal. The phrases “reasonable to conclude”, “the Respondent is entitled to rely upon” and “the Respondent’s decision remains reasonable” are all indicative of a review-based approach. Clearly an appeal cannot be sustainably decided on the basis of whether it was “reasonable” for the Respondent to have arrived at any particular conclusion. This is a further error of law.
12. In all the circumstances the errors are material and the judge’s decision must be set aside. I have concluded that this appeal should be retained in the Upper Tribunal for a resumed hearing in due course. I will issue directions (instructions) in order to progress the matter.

Notice of Decision
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 of the First-tier Tribunal.
I retain this appeal in the Upper Tribunal for a resumed hearing in due course.
No anonymity direction is made.

Directions (instructions)
It is important for the Appellant’s Sponsor and her husband to read this carefully.
This case will be given a new date for a hearing. It is important for one or both of them to attend, although they cannot be forced to.
They do not need to have a lawyer. They will be able to speak to the Upper Tribunal directly.
The most important question in this case is whether the Appellant is in fact the child of the Sponsor.
If the Appellant and/or the Sponsor have any more evidence about the claimed relationship, they must send it to the Upper Tribunal and the Respondent (Home Office) as soon as possible and no later than 21 days from the date that this decision is sent out. New evidence can include documents and/or signed witness statements from the Sponsor or anyone else.
Any new evidence from the Respondent must be sent to the Upper Tribunal and the Appellant no later than 28 days from this decision being sent out.
Documents or submissions filed in response to these directions may be sent by, or attached to, an email to [email] using the Tribunal’s reference number (found at the top of these directions) as the subject line. Attachments must not exceed 15 MB.
Service on the Secretary of State may be to [email] and to the original appellant, in the absence of any contrary instruction, by use of any address apparent from the service of these directions.

Signed H Norton-Taylor Date: 7 November 2022
Upper Tribunal Judge Norton-Taylor