Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/06846/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 9 March 2017
On: 28 March 2017

Before
Deputy Upper Tribunal Judge Mailer

Between
secretary of state for the home department
Appellant
and

Mr Augustus Aubrey Amoafo
no anonymity direction made
Respondent

Representation
For the Appellant: Mr L Tarlow, Senior Home Office Presenting Officer
For the Respondent: Ms C Charlton, Legal Representative, Bhogal Partners Solicitors

DECISION AND REASONS
1. I shall refer to the appellant as “the secretary of state” and to the respondent as “the claimant.”
2. The claimant is a national of Ghana, born on 4 October 1961. He appealed against the decision of the secretary of state made on 3 September 2015 to refuse his human rights claim.
3. In a decision promulgated on 5 September 2016 First-tier Tribunal Judge K Real allowed his claim under Article 8 of the Human Rights Convention.
4. At the hearing, both the appellant and his son gave evidence before the Judge.
5. In her determination the Judge referred to a previous decision by Immigration Judge Khan promulgated on 11 September 2014. She directed herself in accordance with the principles in Devalseelan [2002] UKIAT 00702.
6. She set out the immigration history of the appellant. He first entered the UK on 8 October 1993 using a British passport in the name of Samuel Quansah. His asylum application in 1994 was refused. He was removed to Ghana in 1997.
7. On 20 September 1997 he re-entered the UK on a Ghanaian passport in the name of Charles Brown. He was was given leave to enter as a visitor until 4 February 1998. In May 1999 he submitted an application for indefinite leave to remain in the name of Gideon Kofi Aiakora Boatey. This was refused in 2002.
8. He made a further application on 1 October 2012 based upon the length of his residence in the UK and under Article 8 of the Human Rights Convention. That was refused on 17 January 2014. Immigration Judge Khan dismissed his appeal against that decision on 11 September 2014. He was refused permission to appeal.
9. His current application was made on 15 June 2015.
10. Judge Real noted that Immigration Judge Khan did not find the appellant to be a witness of truth. He based this upon dishonesty in relation to his adverse immigration history. That was the starting point. A significant time has passed and the facts must be assessed on the current evidence before the Tribunal. Even a general adverse credibility finding does not prevent facts being true or proved, particularly where there is other evidence. Judge Khan did not reject entirely the facts put forward by the appellant regarding his lack of ties to Ghana or the dependency of his son, but found the difficulties in relation to each aspect to be exaggerated [20].
11. Judge Real found his son, Joshua, to be a credible witness. The previous credibility findings in relation to the appellant were not determinative. She found Joshua “to be realistic” in making concessions that, as an adult, he had his own friends and did not plan on living with the appellant for the rest of his life. [21]
12. She found that Joshua had been living with the appellant since the age of 11. His mother is not in his life. He has no contact with her.
13. She accepted that the appellant and Joshua have a very close relationship as a result of the appellant's being a single parent to his son. The events that they have been through in life have led to the emotional bond between them being particularly strong [22]. These were the breakdown of two of the appellant's relationships and the death of his two year old son, Joshua's half brother, in 2010. Also, when Joshua was 16, he was seriously ill which led the appellant to live in hospital for four months while Joshua was there. He thereafter moved into a flat with him to take care of him for a further year and a half. The emotional ties between them involve more than the “normal” emotional ties between a father and his son because of the particularly close bond that they have. Joshua was born on 14 June 1992. He was 23 at the date of the hearing.
14. She found that there is family life between them. Although Judge Khan did not think that there was such family life, he was prepared to assume that when assessing proportionality. He did not mention any of the life events, however, referred to in her findings. The emphasis from Judge Khan's determination was on current circumstances and financial dependence rather than the closeness of emotional ties between them.
15. She considered private life under paragraph 276ADE (vi) of the Rules. She did not find that very significant obstacles existed. This was confirmed from the essence of Judge Khan's conclusions, albeit that there was a differently worded provision [25].
16. She found that the appellant would not meet the Rules. She weighed that in the balance in considering the proportionality under Article 8.
17. In considering the proportionality, she noted that the previous immigration history weighed heavily in favour of the public interest in his removal. That dated back to 2002, after which there has been no further attempt at deception in immigration matters. That mitigated his position somewhat.
18. The appellant continued to work even though he had no permission to do so. He would be able to support himself financially. He speaks English. In considering the s.117B factors, she considered that he would not be a great burden on the UK taxpayer. She gave little weight to his private life because his immigration status has been unlawful throughout.
19. His son is currently unable to complete university education as they are unable to afford the fees. He is nearing completion of a low paid year long traineeship with John Lewis. Joshua has relied on the appellant for financial support during this period.
20. She agreed with the finding by Judge Khan with regard to his financial or practical terms, that the “dependency” of the appellant's son was exaggerated.
21. The key significant and weighty factor in favour of the appellant however was the close bond between them. She had heard articulate and “heartfelt evidence” from both that one would quite simply be “lost” without the other - [30].
22. She approached her assessment on the basis that Joshua does not intend to live in the same house as the appellant for ever. He would want to make his way in the world. At the moment, he is not yet there. He has not fully “flown the nest.”
23. It is in Joshua's interests to remain in the UK. Ghana is not familiar. She acknowledged that he would “survive” emotionally and financially without his father although both aspects of the appellant's support are important to him. She found however that the life of the family as it exists now between them cannot reasonably be expected to be enjoyed elsewhere [30].
24. The closeness of the relationship between the two is extremely strong. Although they may have friends and other family members in Ghana, neither have others in their network as close as each other [31]. Although the public interest in removal is strong so is the factor of the strength and closeness of the personal relationships between the two. In her assessment, this marginally outweighed the countervailing considerations making the proposed interference with their family life disproportionate.
25. On 9 January 2017 Acting Resident Judge Appleyard granted the secretary of state permission to appeal. He found all the grounds seeking permission to be arguable.
The appeal
26. Mr Tarlow adopted the grounds. He referred to paragraph 20 of the prior determination of Judge Khan finding that the appellant was not a witness of truth. These were not solely in respect of the immigration history as found by Judge Real. She recorded that IJ Khan found that he was exaggerating the claimed level of his son's dependency.
27. In the circumstances, the finding that the appellant's previous negative credibility finding was only in respect of the immigration history was not one open to Judge Real. Accordingly, Judge Real failed to follow paragraph 41(6) of Devaseelan. The facts before Judge Real which the appellant relied on were not materially different from those put to the First-tier Judge.
28. The claim was supported by what is in essence the same evidence as that available to the appellant at that time. The Judge failed to identify any new evidence at the hearing in respect of the alleged dependency. Judge Real should have regarded this issue as settled.
29. Moreover, the Judge had failed properly to consider Kugathas. At [30] she found that Joshua wished to make his own way in the world and did not intend to remain in the same household as his father. The Judge also found that he would survive emotionally and financially without his father.
30. In those circumstances, there was evidence that the relationship between them was nothing more than one would expect between any adult child and their father. The fact that the appellant's son intends as soon as he is financially able to leave the family home shows that there is no “above normal” level of dependency as required in Kugathas at [19], where the Court held that neither blood ties nor the concern and affection that ordinarily go with them are, by themselves or together enough to constitute family life.
31. Nor did the Judge did identify on what basis the relationship between them could not reasonably be expected to be enjoyed elsewhere. Neither is a British citizen. Judge Real found that both of them may well have family and friends in Ghana. She therefore failed to identify why any of those factors could lead to the conclusion that a Ghanaian adult, with no family of his own in the UK, could not relocate to Ghana with his Ghanaian father. The appellant's adult son, Joshua, is not a qualified person under the Immigration Rules. That has not been acknowledged at any point in the determination.
32. The Judge further misdirected herself at [30], finding that it is in the interests of Joshua to remain in the UK. As Joshua is an adult of 24, the Judge applied the wrong test in considering whether he could return to Ghana with his father. The Judge conducted the hearing and made findings as if Joshua were a child. The term “interest” appeared to be a reference to a “best interests of the child” consideration.
33. Nor did the Judge identify a single compelling or exceptional factor that would prevent the appellant or Joshua from returning to Ghana.
34. Finally, albeit that Mr Tarlow did not find this to be one of his best points, he referred to [28] of the determination where the Judge weighed in favour of the appellant the fact that he speaks English and has worked in the past even though it was illegal. An appellant cannot obtain a positive right to a grant of leave to remain whatever the degree of his fluency in English or the strength of his financial resources – AM (S117B) Malawi [2015] UKUT 0260 (IAC), headnote 2.
35. Mr Tarlow therefore submitted that the decision should be set aside and re-made de novo.
36. On behalf of the claimant, Ms Charlton submitted that the Judge correctly applied the law. There had been no reference before Judge Khan of the life events identified in the subsequent decision.
37. The bonding between them and the emotional ties was not referred to in Judge Khan's findings. Judge Real has had in mind the fact that the appellant had not been a witness of truth. Those previous adverse credibility findings, however, were not determinative. She spoke about the relationship going beyond normal ties. [22].
38. Judge Real also referred to the interests of both the appellant and his son. This was not indicative of Joshua's being a child. She knew that she was dealing with an adult. She was aware that he was 24 years old. He was still dependent on his father.
Assessment
39. In the decision of First-tier Tribunal Judge Khan promulgated on 11 September 2014, he noted that the appellant stated in cross examination before him that Joshua lived with him. He also had many brothers, a step sister and an aunt. Joshua was 22 years old at the date of the decision and was at university. Joshua lived with him and his tuition fees had been met from the appellant's savings.
40. At paragraph [10] he referred to the fact that Joshua claimed to have been entirely dependent financially on the appellant who agreed that he had no status in the UK, no right to remain and no permission to work. He had been living with the appellant from the age of 11.
41. In Joshua's evidence before Judge Khan, he stated that he was studying at university and was about to start his second year. He had been living with his father since July 2003 and did not work.
42. Judge Khan stated at [23] that the fact of the matter was that Joshua was now an adult of 22 and will be graduating within a short time with a degree, with which he will be able to use to his advantage. He found that the appellant's adverse immigration history outweighed the best interests of his son. This was not a case where there is a young child who is a British citizen who could not reasonably be expected to live in his parents' country of origin as he had never been there.
43. Even if family life does exist between them any interference would be entirely proportionate [24]. Judge Khan referred to the appellant's dishonest behaviour. He had not sought to regularise his position for many years. He had used false identities in securing entry and re-entry. Moreover the appellant's witnesses exaggerated their evidence to bolster the appellant's case. One of the witnesses even stated that she did not know where the appellant lived.
44. He noted that Joshua is not a qualifying child under s.117B(6).
45. I was also referred to the determination and reasons dated 25 November 1996, in which the appellant's appeal against the refusal to grant him asylum was dismissed by the Special Adjudicator. In the reasons for her determination at page 5, she stated that there are grave issues of credibility in this appeal namely the matter of the passport and the membership of the NPP which the appellant has not addressed. These are damaging matters which are material to his application. It was improbable that he was of adverse interest to the Ghanaian authorities and the respondent had correctly concluded that he used his own passport without hindrance when embarking at the main international airport in Ghana.
46. I note that the appellant's son was 24 years old at the date of the hearing before Judge Real. The fact that he clearly stated that he intends as soon as he is financially able to leave the family home demonstrated that there is no special emotional or any other dependency which existed between him and the appellant.
47. Although there were blood ties and affection between his adult son and the appellant there were not adequate reasons justifying the finding that this constituted family life.
48. Further, neither the appellant nor Joshua is a British citizen. The Judge found that they may well have family and friends in Ghana. There were however no proper reasons given as to why this led to the conclusion that both the appellant and his son could not relocate to Ghana, especially as it was accepted that Joshua was not a qualified person under the Rules.
49. Finally, the Judge did not properly weigh or consider the provisions of s.117B of the 2002 Act. The fact that they spoke English and had financial resources afforded the appellant no positive right to a grant of leave to remain.
50. In the circumstances, I find that the decision of the First-tier Tribunal involved the making of an error on a point of law. I accordingly set it aside.
51. The parties agreed that the decision would have to be re-made.
52. Ms Charlton stated that there would be a significant amount of fact finding that would need to be considered as to the “proper relationship.” Even though this might not be complicated, it should be remitted. Mr Tarlow did not oppose that application.
53. I have had regard to the Senior President's Practice Statement regarding the remitting an appeal to the First Tier Tribunal for a fresh decision. In applying such approach, I am satisfied that the extent of judicial fact finding which is necessary in order for the decision to be re-made, is extensive. This will be a complete re-hearing with no findings preserved. Having regard to the overriding objective it would be just and fair to remit the case.

Notice of Decision
The decision of the First-tier Tribunal involved the making of an error on a point of law and is set aside
The appeal is remitted to the First-tier Tribunal (Columbus House, Newport) for a fresh decision to be made before another Judge.
No anonymity direction is made.

Signed Date 25 March 2017
Deputy Upper Tribunal Judge C R Mailer