Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00126/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 October 2016
On 18 October 2016

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

MANUEL [P]
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S. Naqvi of Irvine Thanvi Nata Solicitors
For the Respondent: Ms A. Fijiwala, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appealed against the respondent's decision dated 8 May 2015 to refuse a human rights claim in the context of deportation proceedings. The respondent accepted that the appellant had a genuine and subsisting parental relationship with his youngest stepdaughter and his biological son, who are both British citizens. Although it was accepted that he also had an older step-daughter, she was 18 years old. There was no evidence of further elements of dependency that went beyond normal emotional ties between adult relatives. For this reason the respondent did not accept that family life was established within the meaning of Article 8 of the European Convention. The respondent also accepted that the appellant had a genuine and subsisting relationship with his wife, who is settled in the UK.

2. First-tier Tribunal Judge Cohen ("the judge") dismissed the appeal in a decision promulgated on 18 April 2016.

3. The appellant sought to appeal the decision on the following grounds:

(i) The judge failed to give adequate consideration to the family life between the appellant and his family members, including his step-children. In finding that he did not have family life with his step-children the judge failed to give adequate reasons and/or failed to have regard to material evidence.

(ii) The decision contained numerous typographical errors, which cast doubt on whether the judge gave anxious scrutiny to the human rights issues raised on the facts of the case, including evidence relating to the impact of removal on the appellant's autistic son.

4. At the hearing Ms Fijiwala accepted that the decision was inadequate and disclosed errors of law, not least because the respondent accepted that the appellant had a family life with his youngest step-daughter in the decision letter.

5. I am also satisfied that the decision involved errors of law that were material to a proper assessment of the appeal.

6. The judge failed to apply the basic legal structure contained in the immigration rules in line with the guidance set out by the Court of Appeal in MF (Nigeria) v SSHD [2014] 1 WLR 544. The judge mentioned paragraph 398 and the exceptions to deportation but then stated that the exception was that "removal would be in breach of his human rights under Article 8 of the ECHR" [16]. Although he went on to mention paragraphs 399 and 399A he failed to engage with the relevant legal tests set out in those exceptions [20].

7. The judge failed to give reasons to support his bare finding that the appellant did not have a family life with his two step-children. He failed to engage with the fact that the respondent accepted that there was family life with the youngest step-child or with the evidence given by the appellant and other family members regarding the close nature of their relationships [19].

8. Although the judge mentioned the evidence relating to the difficulties faced by the appellant's autistic son [8] he failed to engage with the evidence when assessing whether it would be unduly harsh for the child to remain in the UK without his father or whether it would be unduly harsh to expect him to relocate to Ecuador with his father [19]. Having found that the child could relocate to Ecuador (without reference to the correct legal test) the judge failed to give any consideration to how relocation of the whole family would impact on the appellant's step-children [19]. The judge failed to give any consideration to the fact that the children are British citizens.

9. The judge's assessment of the case was wholly inadequate in view of the importance of the importance of the family life issues involved. The typographical and other errors merely serve as an additional illustration of the point. He failed to make findings in relation to material aspects of the claim or to provide adequate reasons to show that he considered the case within the relevant legal framework.

10. I conclude that the decision involved the making of errors of law. It was agreed that the appropriate course of action would be for the appeal to be remitted for a fresh hearing before the First-tier Tribunal.

DECISION

The First-tier Tribunal decision involved the making of an error on a point of law

I set aside the decision and remit the case to the First-tier Tribunal for a fresh hearing

Signed Date 17 October 2016

Upper Tribunal Judge Canavan