Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03993/2015

THE IMMIGRATION ACTS

Heard at : Field House
Decision & Reasons Promulgated
On : 11 August 2016
On : 15 August 2016

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

ihieme [c]
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: In Person
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

1. Following a grant of permission to appeal against the decision of the First-tier Tribunal allowing the appellant's appeal against the respondent's decision of 31 July 2015 to refuse his application for leave to remain on human rights grounds, it was found, at an error of law hearing on 7 June 2016, that the First-tier Tribunal had made errors of law in its decision. The decision was accordingly set aside and directions made for it to be re-made.

2. The appellant, a citizen of Nigeria born on [ ] 1974, entered the United Kingdom on 25 April 2010 with entry clearance as a visitor valid until 7 October 2010. He entered into a relationship with a British woman and on [ ] 2012 a son, [K], was born from that relationship. The appellant's relationship with his partner ended and his son remained living with his ex-partner. The appellant applied to the family court for a contact order. An Interim Contact and Interim Prohibited Steps Order was made in his favour and further contact proceedings are ongoing.

3. On 19 September 2013 the appellant made an application for leave to remain on the basis of his family life with his son. Following requests made by the respondent, the appellant confirmed that he was unable to provide his son's British passport as proof of his nationality, as his ex-partner was not being cooperative. The appellant's application was then refused on 27 November 2013 on the basis that the respondent was not satisfied that his son was British and that he could not, therefore, meet the requirements of Appendix FM, R-LTRPT 1.1(d) with reference to E-LTRPT 2.2.

4. The appellant then applied for a reconsideration of his application, submitting evidence of contact with his son in the form of contact centre invoices, contact report forms, a court order and photographs. His application was refused on 31 July 2015, again on the basis of there being no evidence to show that his son was a British citizen. The respondent considered that the appellant could not, therefore, meet the requirements of the immigration rules. In considering whether exceptional circumstances existed to justify a grant of leave outside the rules, the respondent accepted that the appellant had contact with his son but did not accept that the circumstances were exceptional.

5. The appellant appealed that decision and his appeal came before First-tier Tribunal Judge Hawden-Beal and was decided on the papers without an oral hearing. The judge found that the appellant could not meet the mandatory requirements of Appendix FM as he could not show that his son was a British citizen. The judge found also that the requirements of the rules in relation to private life could not be met. However the judge, considering the appellant's case outside the rules, found that the respondent's decision was not proportionate as there was contact between the appellant and his son, the best interests of the child were for the appellant to remain in the UK and there was no evidence from the respondent to suggest that the child was not British.

6. Following the respondent's application for permission and the grant of permission, the appeal came before Upper Tribunal Judge Martin on 7 June 2016, with Mr Tufan appearing for the respondent. Upper Tribunal Judge Martin agreed with the basis for the grant of permission, namely that the judge had engaged in speculation and reversed the burden of proof in requiring the Secretary of State to establish that the child and his mother were British. She therefore set aside the Frist-tier Tribunal Judge's decision. On the basis that the nationality of the child was a crucial issue in the appeal, Upper Tribunal Judge Martin adjourned the case in order for efforts to be made to obtain information on the appellant's son's status.

7. The appeal then came before me. I noted that Mr Tufan had, in the meantime, emailed the Tribunal confirming from his own enquiries that the appellant's former partner and the mother of his child was a British national.

8. At the hearing before me Mr Tufan confirmed that the respondent now accepted that the appellant's son was a British national. He confirmed that that was the only issue that had been raised by the respondent in this case and that no other challenge had been made by the respondent to the First-tier Tribunal's decision allowing the appeal. On that basis he agreed that the appeal stood to be allowed. I therefore allowed the appeal.

9. In view of Mr Tufan's confirmation there is no need for me to provide detailed reasons for allowing the appeal. However, for the sake of completeness, I provide the following brief reasons.

10. First-tier Tribunal Judge Hawden-Beal found, at [12] of her decision, that the appellant had a genuine and subsisting relationship with his son and that, if his son were proved to be British, it was not reasonable to expect his son to leave the UK. She also accepted, as did the respondent, that there was regular contact between the appellant and his son. The only reason for the appellant not being able to meet the requirements of the immigration rules was the fact that it had not been shown that his son was a British national. The only challenge to the judge's decision by the respondent in the grounds of appeal to the Upper Tribunal was in regard to her findings on Article 8 outside the rules. The respondent's grounds specifically stated at [2] that "the determinative point is the son's alleged British citizenship".

11. On the basis that it is now accepted by the respondent that the appellant's son is British, and given the other unchallenged findings of the First-tier Tribunal, it is clear that all the requirements of E-LTRPT.2.2-2.4 and E-LTRPT.3.1-3.2 have been met, for the purposes of R-LTRPT 1.1.(d)(ii) and that paragraph EX.1 applies. Accordingly, the appellant has been able to demonstrate that he can meet the requirements of the immigration rules as a parent and the appeal succeeds on that basis.

DECISION

12. The original Tribunal was found to have made an error of law. I re-make the decision by allowing the appellant's appeal under the immigration rules.

Signed Date 15/08/2016

Upper Tribunal Judge Kebede