Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03024/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 February 2017
On 21 February 2017

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

Mrs Amanda Cline
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: The Appellant in Person
For the Respondent: Mr N Bramble, a Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, a citizen of the Unites States whose date of birth is 26 April 1976, came to the UK in 2015 as a Tier 4 Student. Her entry clearance was curtailed on 8 August 2015 and she made an application on 17 September 2015 outside of the Rules. That application was refused and on 20 January 2016 the appellant appealed against that decision. Her appeal was dismissed by Judge of the First-tier Tribunal Graham in a decision that was promulgated on 18 July 2016.
2. The appeal was determined on the papers at the request of the appellant and the judge noted that there was no appellant's bundle. There was, as noted by the judge, a copy of an interim care order in respect of the appellant's spouse's children and this was dated in 2013 and it recorded that the appellant's spouse has been granted direct contact with the children, who were at that time in local authority care.
3. The judge concluded that there was a lack of evidence and little information on which to consider the children's best interests and he concluded that they do not live with their father and they appear to have contact rights with both biological parents. The judge noted that there was very little evidence and no witness statements. There was no evidence that the appellant was living with her spouse and the judge made a series of findings against the appellant dismissing the appeal under the rules and article 8.
4. Permission was granted by Upper Tribunal Judge O'Connor in a decision of 12 December 2016 and thus the matter came before me.
5. The grounds of appeal before me argue that the appellant's spouse's stepson had been placed into the care of her and her spouse in June 2016 and that the judge did not have before him vital evidence. It is essentially argued that the appeal could not be justly determined without a hearing.
6. At the start of the hearing Mr Bramble helpfully and pragmatically conceded that there had been a material error of law for the reason identified by Judge O'Connor in his decision. He conceded that the discretion to determine the appeal without a hearing should have been, but was not, informed by the circumstances of the children. I agree with Mr Bramble and set the decision aside. I also note that in the grounds of appeal that were before the First-tier Tribunal the appellant stated that her husband was the father of four children who at the time of the application were in foster care but they intended to go to court and gain custody. She submitted a DNA report and in her grounds claimed that they had rented a three bedroomed house in the expectation that they will gain custody and that the likelihood of gaining custody would be greatly diminished should the appeal be dismissed. It is not clear to me that the judge considered the grounds of appeal because there is no reference to the them in the decision when deciding whether to proceed in the absence of the appellant.
7. The judge was not assisted by the appellant. However, the error is material and I set aside the decision to dismiss the appeal because there is a procedural error which has led to unfairness. In the light of the nature of the error, the correct venue, as agreed by the parties, is the First-tier Tribunal where the appeal will be considered afresh which will involve an extensive fact finding exercise. There are no findings that can be salvaged. I remit the matter to be reheard afresh before the First-tier Tribunal. There was no application before me for anonymity to be afforded to the appellant, but the FtT may wish to consider this, in the light of the children involved.

Signed Joanna McWilliam Date 20 February 2017

Upper Tribunal Judge McWilliam