Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03318/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 22 February 2017
On: 15 March 2017

Before

Deputy Upper Tribunal Judge Mailer

Between

Mr S J
anonymity direction made
Appellant
and

secretary of state for the home department
Respondent

Representation
For the Appellant: No appearance
For the Respondent: Mr P Singh, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
2. Notice of hearing was given to the appellant and his solicitors, setting out the date, time and place of the hearing.
3. On 21 February 2017 the appellant's solicitors on record, Lawrence & Associates, sent the Tribunal a fax in relation to the appeal scheduled to be heard on 22 February 2017. They stated that they are unable to attend the hearing since they have not been placed in funds on account to attend. They apologise for any inconvenience caused.
4. Neither the appellant or anyone on his behalf attended the hearing. In accordance with paragraph 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008 I consider that it is in the circumstances in the interests of justice to proceed with the hearing.
5. The appellant appeals with permission against the decision of First-tier Tribunal Judge A Khawar who in a decision promulgated on 7 September 2016 dismissed the appellant's appeal against the respondent's decision refusing his application for leave to remain on the basis of private and family life under Article 8 of the Human Rights Convention.
6. In granting permission to appeal on 5 January 2017, First-tier Tribunal Judge P J M Hollingworth noted that the Judge stated at paragraph 25 that the difficulty he had with the appellant's child's evidence is that it is impossible to know what weight to attach to it because of the complete absence of any reliable evidence from his mother, who had not provided a witness statement. The mother did not attend the hearing in order to give oral evidence.
7. He found that it was arguable that these matters were clear before the Tribunal embarked upon taking evidence from the child. Having embarked upon taking evidence from him, “….the Judge should have provided a full analysis of the relevant factors appertaining to weight to be attached to each of the child's evidence before making findings of fact in relation to it and drawing conclusions there from”.
8. It was also arguable that the s.55 analysis is flawed given the Judge's reference to impossibility at paragraph [25]. It is arguable that if the child was to be called to give evidence and the Judge considered that it was necessary for his mother to give evidence in order to draw conclusions as to the nature and quality of his evidence, the case should have been adjourned.
The decision of the First-tier Tribunal
9. The appellant was represented by a solicitor from Lawrence and Associates.
10. Judge Khawar set out the respondent's decision at paragraph [3]. The respondent considered the appellant's application under Appendix FM, concluding that there was no evidence to show that he had taken “an active role” in his child's life and there was no official evidence from any official source such as the school or general practitioner, albeit that there was a letter from his ex wife confirming that he had access rights to the child, who was born on 30 March 2003. The child lived with the appellant's ex-wife who is not a British citizen or settled in the UK [3].
11. The respondent also concluded that there were no exceptional circumstances warranting a grant of leave outside the Immigration Rules having considered the welfare of the child under s.55 of the Borders, Citizenship and Immigration Act 2009. She noted that the child has leave to remain in the UK until 5 April 2017 in line with his mother. He can remain in her care.
12. The appellant would be able to maintain contact with his child from Mauritius through family visits and modern means of communication.
13. Judge Khawar heard evidence from the appellant and his son, whom the Judge found to be 13 years old.
14. He noted that the appellant is now 35 years old and a national of Mauritius. He had applied for leave to remain on the basis of his access rights/contact with his child, who is now 13 years old. The appellant's case is set out in his witness statement. He entered the UK on 11 September 2004 with his ex-wife and son who was 1½ years old at the time.
15. They entered as visitors and remained. He maintained that his ex-wife changed her immigration status from visitor to student and he was a dependant upon her visa after that. His relationship with his ex-wife broke down and they were divorced. They separated about six years ago – [10].
16. The appellant claimed to be actively involved in the life of his son and that before his ex-wife and child moved to Swansea he had daily contact with his son as they were living close to him and he used to pick the child up from school every day.
17. He maintained that now that his ex-wife and son have moved to Swansea he sees him “almost every weekend” and he usually spends his holidays with him due to the distance between us. He regularly goes to Swansea by coach to visit him or to pick him up from there to come to London. He is also involved in his education and has a keen interest to ensure that he has a good upbringing with strong moral principles - [11].
18. The school has all his details and he was contacted by the head teacher recently “because of son's welfare”. He maintained that he would not be able to actively take part in his child's upbringing if he were moved to Mauritius.
19. In his findings and conclusion Judge Khawar had regard to s.55 of the 2009 Act. In his consideration of the best interests of the child who has limited leave to remain until April 2017 he took into account the Upper Tribunal decision in Azimi-Moyed and others (decisions affecting children – onward appeals [2013] UKUT 197 and decisions of the Court of Appeal in appeals 'such as' EV (Philippines) and others v SSHD [2014] EWCA Civ 874 and SS (Congo) and others [2015] EWCA Civ 387 [14].
20. Having assessed the evidence in the appeal, he concluded at [16], that little has changed from the position as described by the respondent. There was still no documentary evidence of any independent third parties/objective source to establish that the appellant is taking an active interest in his child's life.
21. He stated that the appellant sought to rely on his own witness statement which contains little more than assertions in addition to those made during his oral evidence. The only difference was that during the appeal he “produced” his son as a witness.
22. His son adopted his own witness statement dated 24 August 2016 (the day before the hearing). When giving evidence he agreed that the words used in this witness statement were not his words but those prepared by his “dad's solicitor” - [17].
23. Judge Khawar expressed his reservations about calling the child. This was particularly so as his mother was not present. The representative however insisted upon calling him, including corroborating his assertion that the appellant is registered as the emergency contact at the child's school in Swansea “… despite the fact that he lives in Croydon!” [18]
24. In his oral evidence, the appellant stated that he had not been able to obtain documentary evidence from his son's school as he is “embarrassed” to disclose to the school that he has no legal status in the UK and that his child might be affected adversely by such a disclosure. He provided no evidence to establish any reason to fear that the head of school or teachers would not behave in an entirely professional manner. Judge Khawar did not find the appellant's claims credible [19].
25. When questioned as to why he is registered as the emergency contact at his son's school and not his ex-wife, the appellant claimed that this is because he child is scared of his mother. Anything can happen. He can talk to his father first. “I can get there in one and a half hours. I can get my friend to drive me.“ When questioned about this assertion he agreed that his ex-wife would be able to go to school within a few minutes as she lives and works in Swansea [20].
26. When the child was questioned in relation to the emergency contact at the school, he stated that his father is the emergency contact. He did that because he knows his mother cannot come out of work to see if he is 'okay' so he put his dad on the contact because he knows he can come. When questioned as to how he went about ensuring that his dad was noted as the emergency contact, the child stated that “when I started school they asked me my details, to filling up form, they asked me who I wanted an emergency contact and my mother said leave it blank and I said no, and I put down my father's number” [21].
27. The Judge found that account to be highly unlikely to be true. It is unlikely that the school would have been asking a child as to the identity of an emergency contact. It is unlikely that his mother would have suggested that the form be left blank. It is highly unlikely that the child would have been involved in insisting and putting down his father's number as he claimed during his oral evidence [22].
28. He found therefore that the evidence of both the appellant and his son was not reasonably likely to be true and he found them to be “wholly unsatisfactory” [23].
29. The appellant claimed that since his wife moved to Swansea in November last year the child had spent all of his school holidays with him and in addition he travels to Swansea every weekend to spend time with his son. Such assertions were contradicted by the evidence of his son who stated that he did not see his father during the Christmas holidays and indeed during the one week half term holiday. In addition he stated that “sometimes” his father comes to Wales on a coach at the weekend. He also stated that he spent the whole of his summer holiday with his father and also during the Easter holidays because his mother is working.
30. The Judge stated that the difficulty with the child's evidence is that it is impossible to know what weight to attach to his oral evidence because of the complete absence of any reliable evidence from his mother who has not provided a witness statement in support of the appeal. She did not attend the appeal to give oral evidence. Although there is a previous witness statement filed in support of the appellant's application which is referred to in the respondent's refusal letter, there is no evidence that she is aware of the contents of that witness statement because the statement is unsigned and undated - [25].
31. In addition, there is no evidence that she is in fact aware that her son is to be called as a witness in support of his appeal. The appellant's witness statement is dated 9 August 2016 whereas the witness statement of the son is dated 24 August 2016, a day before the appeal hearing on 25 August 2016.
32. The Judge held that the inescapable conclusion is that this child may well have been influenced by his father to come along to court in order to say things which are not entirely true, including for example that he, the child, determined who should be listed in the emergency contact at his school. He did not accept that a 12 year old child, as he would have been at that time, would have been the individual making such a decision – [25].
33. Nor was there any documentary evidence of any travel that the appellant makes to Swansea to maintain contact and play an active role in his child's life. Nor is there confirmation of any such travel and the extent of his role in his child's life provided by his ex-wife. Nor was there any evidence to suggest that the appellant has any intention of relocating from Croydon to a place nearer to his son's residence in Swansea - [26].
34. There was no evidence 'whatsoever' from the child's school which could easily have been obtained without difficulty. There is only a school report which in fact is addressed to the child's mother and not the appellant - [27].
35. Photographs produced appear to have been taken on three separate occasions. No details were provided as to when and in what circumstances such photographs were taken. While they represent some evidence of contact between the appellant and his child they do not represent evidence of frequency of contact - [28].
36. During the appellant's oral evidence he had no idea of the basis on which his ex- wife had limited leave to remain until April 2017, which includes his son in line with his mother's leave. This suggests that there is little, if any, meaningful contact or communication between the appellant and his ex-wife. If she was genuinely concerned about ensuring the continued contact in the child's life she would at the very least have provided a witness statement setting out her support for his case. There is no such statement, let alone an attendance by her - [29].
37. On the totality of the evidence placed before him therefore, he did not accept the appellant's assertions that the child spends all of the school holidays and virtually every weekend with him. There is no reliable evidence to confirm such assertions. He did not accept that the appellant travels almost every single weekend to Swansea as claimed - [30].
38. It may well be that the child spends some school holidays with the appellant. That would amount in total to about three or four visits/stays within a year. Such limited degree of contact could reasonably be achieved by the appellant through mutual visits from or to Mauritius and furthermore that contact could also be maintained through modern means of communication and in particular through Skype.
39. Those conclusions were made in view of the appellant's oral evidence that he continues to have family in Mauritius. When he resided there he worked as a bus driver and also in the construction/building trade. In the UK he has continued to work within the construction/building trade. There was no reason why he would not be able to return and continue to work in such a capacity in Mauritius - [31].
40. The Judge noted that as his application was made after 4 April 2015 he had no right of appeal under the Immigration Rules but his appeal was limited to Article 8 of the Human Rights Convention only. However, the Rules provide a backdrop and framework for consideration of the Article 8 position.
41. He assessed his position under Article 8 of the Human Rights Convention and considered the Razgar questions. The third and fourth he answered in favour of the respondent.
42. It emerged that the appellant has only ever had legitimate leave for the initial six months visit visa. Thereafter he remained as an overstayer despite assertions in his witness statement which he did not find to be credible. The appellant conceded in oral evidence that he did not have leave extended as a student dependant of his ex- wife. He had therefore unlawfully remained present in the UK throughout most of the time here with the exception of the first six months - [36].
43. He found that the decision was proportionate in the circumstances.
The appeal
44. In the grounds seeking permission it was contended that the Judge approached the evidence of the child with the comment as to how he knew that the child had not been coached? That showed that he was prejudiced before listening and engaging with his evidence. His findings are accordingly “irrational.” At no point was such reservation “explicitly expressed because of the absence of the mother during the hearing.”
45. His assessment of s.55 is irrational as it is “restricted” to the issue of whether the appellant is an emergency contact for his son. The s.55 assessment did not take the wishes and feelings of the child into account. The son and father were enjoying daily contact before the child moved to Swansea. The child explained that his relationship is better with his father than his mother. The over emphasis of the credibility of the child was “….far easily reached on one point only and the remaining evidence of the child was not taken into account since the burden of proof is on the balance of probabilities.”
46. There have been no further submissions or documentation presented and produced by the appellant in the appeal. It was only the day before the hearing that his solicitors stated they would be unable to attend the hearing as he has not placed his solicitors in funds.
47. On behalf of the respondent it was contended that the Judge had directed himself appropriately. No adjournment had been sought following the Judge's 'comment'. The findings of fact were available on the evidence.

Assessment
48. Judge Khawar has directed himself appropriately. At no time was there ever any request for an adjournment when he noted his concern about the evidence to be provided by the appellant's son. The appeal was pursued despite the Judge's reservations. It was the appellant's representative at the time who was insistent upon calling the child to corroborate the appellant's assertion that he is registered as the emergency contact at the child's school in Swansea despite the fact that he lives in Croydon.
49. The Judge rejected the appellant's assertion that he had not been able to obtain documentary evidence from his son's school because he was “embarrassed” to disclose that he has no legal status in the UK. The Judge found that his claims in that respect were not credible. That is a finding he was entitled to make in the circumstances.
50. The child's account of his father being the emergency contact was also disbelieved. The child stated that he put his father down as he knew his mother could not come out of work to see if he was 'okay'. He also stated that when he started school they asked him the details when filling out the form. They asked him who he wanted as an emergency contact. His mother said to leave it blank but he put down his father's number.
51. The findings regarding those assertions, namely, that it is unlikely that his mother would have suggested leaving the form blank and that the child would have been involved in insisting and putting down his father's name as claimed, are sustainable on the available evidence.
52. Moreover the Judge's findings as to the appellant's claim that since his wife moved to Swansea the child had spent all the school holidays with him and that he travels to Swansea every weekend to spend time with him were contradicted by the appellant's son [24].
53. He also noted that it was impossible to know what weight to attach to the son's oral evidence because of the absence of any reliable evidence from his mother. He was entitled to take into account in this respect that she had not provided a witness statement to support the appeal. Nor had she attended the appeal to give evidence. Although there was a previous written statement there was no evidence that she was aware of its contents as the witness statement in support of his application contained in the respondent's bundle, is unsigned and undated.
54. Nor was there evidence that she was aware that her son was to be called as a witness to support the appeal. The Judge found in the circumstances that it was an inescapable conclusion that the child may well have been influenced by his father to come along to court to say things which are not entirely true including his claim that it was he, the child, who determined who should be listed as the emergency contact at the school. The Judge did not accept that a 12 year old would have been the person making that decision. Those are findings which was sustainable on the evidence.
55. In addition, the Judge noted that there was no documentary evidence at all relating to any travel that the appellant has made to Swansea to maintain the contact and to show that he plays an active role. Nor did his ex-wife provide any confirmation of such travel and the extent of his role in his child's life. There was no evidence from the school which could easily have been obtained. The only evidence of the school report is addressed to the child's mother.
56. The photographs produced did not represent evidence of frequency of contact.
57. In the circumstances the Judge had a proper basis for rejecting the appellant's assertions that the child spends all of the school holidays and virtually every weekend with him. There was no reliable evidence confirming such assertions. He has given proper reasons for not accepting that the appellant travels almost every single weekend to Swansea.
58. He found that there may be a limited degree of contact which could be achieved by the appellant through mutual visits from or to Mauritius as well as by modern means of communication.
59. He further considered the appellant's claim under Article 8 of the Human Rights Convention. He directed himself appropriately and considered the evidence, and in particular the lack of any reliable evidence, regarding the nature and frequency of such alleged contact. He considered the provisions of s.117B of the NIAA 2002 with regard to public interest. He has properly balanced the competing interests in the appeal. His finding that the respondent's decision constituted a proportionate interference with their rights to respect for family life, was one to which he could properly come.

Notice of Decision
The decision of the First-tier Tribunal did not involve the making of any error on a point of law. It shall accordingly stand.
Anonymity direction made.

Signed Date 13 March 2017
Deputy Upper Tribunal Judge C R Mailer