Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03047/2015
HU/03043/2015
HU/03039/2015
HU/03036/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
6th February 2017
8th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE RIMINGTON

Between

Gustavo [V]
Jinhee [Y]
[A C]
[K C]
(aNONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Magne instructed by Magne & Co Solicitors
For the Respondent: Mr Tufan, Home Office Presenting Officer

DECISION AND REASONS

1. The appellants appeal, with permission, against the decision of First-tier Tribunal Judge O’Garro who dismissed their appeals against the Secretary of State’s refusal of their human rights claim.
2. The first appellant is a Brazilian male national born on 17th February 1980 and he is a relationship with the second appellant, a national of South Korea born on 11th September 1973. They have two children born in the UK and who are Korean nationals. The first child was born on 6th March 2008 whilst the second was born on 30th March 2010. The first appellant entered the UK as a visitor on 1st April 2006 and subsequently overstayed. His application to remain as a dependant of his brother who is married to an EEA national was refused on appeal in 2011. On 20th May 2015 the applicant and his partner and children applied for leave to remain under Paragraph 276ADE. That application was refused on 20th July 2015,
3. There were four grounds of challenge to the First-tier Tribunal’s decision
(i) the Immigration Judge failed to consider all three reports submitted by the appellant in relation to the children and their ability to reintegrate in either Brazil or Korea. It was not clear from the determination which two reports had been considered. The three reports were from Estela Barbosa, Research Associate at University College London, Fernando Gonzalez Rey, Professor at the University of Brazil and Dr Young-hae-Chi, University Instructor in Korean, Oxford University.
(ii) the dismissal of those expert reports which were considered was contrary to the principles in Cherbal v Secretary of State [2002] UKIAT 02014
(iii) the Immigration Judge did not undertake the evaluative exercise set out in JO & Oths (S55) Nigeria [2014] 00517 (IAC), Azimi-Moayed (decisions affecting children onward appeals) [2013] UKUT 197 (IAC) or EV Philippines [2014] EWCA Civ 874.
(iv) the conduct of the judge. The judge did not have the bundle before her at the hearing and despite two requests by the appellant’s representative that she arrange for the bundle to be brought to her in the afternoon, the judge declined.
4. At the hearing before me Mr Magne, who had appeared before the First-tier Tribunal Judge, identified that the judge only referred to two of the reports submitted. She had not taken into account all of the evidence. He also referred to the care taken to source the reports and which emanated from professionals with respected credentials and who had in turn taken care in preparing their reports. The reports identified the difficulties the older child would have in relocating either to Brazil or to South Korea particularly because of his special needs and his language difficulties. I was referred to AAW (expert evidence – weight –Somalia) [2015] UKUT 00673 (IAC) which set out the standards for expert reports. It could not be said that the reports had departed from those standards and yet were dismissed as being biased. There was no explanation of why the reports were said to be biased. Further, the judge had elevated hearsay to judicial notice, the judge had failed to address the evidence of the first and second appellants in relation to their children (regarding the older child’s language problems and difficulty in acquiring Portuguese – asserting that children are like sponges). Mr Magne also indicated that the fourth ground, albeit permission was refused, was still relevant.
5. Mr Tufan acknowledged that there may be errors but submitted they were not material. Taken at their highest and that the children’s interests were best served in the UK, EV Philippines [2014] EWCA Civ 874, nonetheless undermined their claims and there was no material error of law in the decision.
Conclusions
6. I am persuaded that there are errors in the decision. It is clear that neither the adults could succeed under the Immigration Rules as neither was a British citizen or present and settled in the UK or here with refugee of humanitarian protection. Neither had sole responsibility for their children as they lived together. The eldest child had however been living in the UK for more than 7 years at the date of the application. It was considered by the Secretary of State when applying Paragraph 276ADE and Section 117 that it was reasonable for the children to relocate outside the UK. In relation to any proportionality assessment outside the Rules, and there would need to be compelling circumstances to do so, Section 117B(6) is relevant; and full assessment of the reasonableness of requiring the children to leave the United Kingdom, with all relevant considerations, needed to be made to inform the proportionality assessment.
7. Paragraph 20 of the decision, and in which the reports in relation to the children were dismissed, failed to identify which specialist reports were addressed, and thus it is not clear that all the evidence was taken into account, contrary to SA Somalia [2006] EWCA Civ 1302. The judge further dismissed those reports on the basis of bias without establishing why they were biased. There was no indication as to why the reports might fall foul of the guidance in AAW (expert evidence – weight) Somalia [2015] UKUT 00673 (IAC).
8. Various authorities have set out that judicial notice should not be ‘free wheeling’ and the judge would appear to have used her own personal knowledge (‘I have heard of children being referred to as sponges [20]… Young brains are inherently flexible’) without putting that to the parties for reflection or comment, and particularly in the light of the special needs of one of the children.
9. As set out in the head note of AM (fair hearing) Sudan [2015] UKUT 00656 (IAC)

‘If a judge is cognisant of something conceivably material which does not form part of either party’s case, this must be brought to the attention of the parties at the earliest possible stage, which duty could in principle extend beyond the hearing date.

Judges are entitled to form provisional views in advance of a hearing provided that an open mind is conscientiously maintained’.
10. In her analysis of the evidence the judge failed to address the parents’ evidence contrary to AK Turkey [2004] UKAIT 00230 and that of the Sunday school teacher and strayed into the area of using her own personal knowledge without referring to the parties.
11. Without reference to the relevant reports secure findings regarding the children’s best interests were flawed and could not properly contribute to a proportionality assessment which is at the heart of this decision.
12. The last ground was not given permission but a matter raised again by Mr Magne at the hearing before me. It is of concern that any judge would conduct a hearing without having the file before him or her, if that is what the judge did, but as I pointed out to Mr Magne no witness statement was filed by him to that effect and I propose to take the matter no further.
13. For the reasons given the Judge, for the reasons identified, erred in law in a manner which might materially affect the outcome of the decision. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). Bearing in mind the nature and extent of the findings to be made the matter should be remitted to the First-tier Tribunal under section 12(2) (b) (i) of the TCE 2007 and further to 7.2 (b) of the Presidential Practice Statement.

Signed Helen Rimington Date 6th February 2017

Deputy Upper Tribunal Judge Rimington