Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: HU/07650/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision and Reasons Promulgated
On December 5, 2016
On January 17, 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

MR B H
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Najma (Legal Representative
For the Respondent: Ms Peterson (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. The appellant is a citizen of Pakistan and he was born on January 6, 1978. On October 23, 2003 the appellant entered the United Kingdom as a spouse with leave valid until October 15, 2005. On October 30, 2005 he applied for leave to remain outside of the Rules and he was granted leave to remain to enable him to attend child contact hearings. This leave was extended until December 15, 2006. He then applied for leave to remain to exercise access rights but this was refused with a right of appeal on January 11, 2007. His appeal was dismissed on March 16, 2007 and his appeal rights were deemed exhausted on April 13 2007. He made applications under article 8 ECHR on April 20, 2007, June 30, 2012 and February 27, 2014. Each application was refused by the respondent. Only his last application attracted a right of appeal and after he lodged his appeal the Tribunal dismissed his appeal on November 11, 2014 and his appeal rights were deemed exhausted on June 3, 2015.
2. On September 9, 2015 the appellant lodged a further application on human rights grounds. The respondent refused this on September 24, 2015 and the appellant appealed under section 82(1) of the Nationality, Immigration and Asylum Act 2002 on October 9, 2015.
3. The appeal came before Judge of the First-tier Tribunal Holmes (hereinafter referred to as the Judge) on December 14, 2015 and in a decision promulgated on December 17, 2015 he dismissed the appellant's appeal under both the Immigration Rules and article 8 ECHR.
4. The appellant lodged grounds of appeal on December 29, 2015 against that decision.
5. Permission to appeal was granted by Judge of the First-tier Tribunal Wellesley-Cole on June 30, 2016 and the matter came before me on the above date.
6. No order for anonymity is made.
SUBMISSIONS
7. Ms Najma relied on her grounds of appeal. In short, she submitted the Judge had placed too much weight on the earlier findings made by former Judges of the First-tier Tribunal Fountain and Law on 2007 and 2014 respectively. She submitted that their findings clouded the Judge's approach and he fell into error. He made findings at paragraphs [44], [49] and [50] but failed to explain how he reached those conclusions in spite of the fact there were documents supporting his relationship with the child.
8. Ms Peterson adopted her colleague's Rule 24 statement dated July 7, 2016. She submitted this appeal was about the Judge's approach to the relationship the appellant had with the mother of his child and the child himself and she submitted the Judge addressed the documents and gave reasons for rejecting the evidence presented to him. He considered the arguments between paragraphs [28] and [35] and made findings open to him. The Judge addressed the evidence given by the appellant over his relationship with the child's mother between paragraphs [36] and [43] and the findings were open to him. The Judge was entitled to take as a starting point the earlier findings but he went further because he examined the current evidence and made the findings he did.

DISCUSSION AND FINDINGS
9. Permission to appeal had been granted in this matter and Ms Najma sought to persuade me the Judge had erred in his approach to the appeal.
10. In giving permission reference was made to two areas namely the absence of any reference to Appendix FM in the decision and over-reliance on the findings made in October 2014 by Judge Law.
11. I raised with Ms Najma on what basis the Judge should have dealt with her client's appeal under Appendix FM of the Immigration Rules if he rejected the relationship between the child and the appellant and she accepted that if the Judge's findings on the relationship were open to him then the appellant could not succeed under Appendix FM.
12. The Judge set out in his decision at paragraph [6] that the appellant's claim was based on his him having a genuine and subsisting relationship with Ismail despite having no relationship with the child's mother. The Judge noted that any claim would have to be brought under Section R-LTRPT of Appendix FM.
13. In order to succeed the appellant would have to satisfy the requirement of Section E-LTRPT 2.2. The Judge examined the relationship between the child's father and himself and he had regard to the fact the child's mother was not in attendance at the hearing. His conclusions about the child and the relationship were set out between paragraph [44] and [50].
14. He found the appellant to be an unreliable witness and it is clear from his decision that he had regard to earlier adverse findings about him. He was also wholly unimpressed by the witness statement said to be signed by the child's mother or his claim to be the father. Although Ms Najma asked me to consider further evidence that had been submitted under Rule 15(2A) I am satisfied that as that evidence was not submitted to the original Tribunal then it is not evidence I should attach any weight to when considering whether an error in law has been made. The Judge gave reasons for rejecting his claim that the child was British and in absence of such a finding the Judge was not required to make any substantial findings under Appendix FM because being a British citizen or living here continuously for seven years was a mandatory requirement to bring a claim under Section R-LTRPT.
15. The Judge did consider the alternative scenario namely if the appellant was the child's biological father. He did this at paragraph [50]. He then rejected the appellant's claim to have a genuine and subsisting relationship with the child or that he intended to seek access rights. This is a mandatory requirement under Section E-LTRPT 2.4(a) and (b) of Appendix FM. He dealt with this aspect in the previous paragraphs of his decision when he made a number of negative finding about the child's mother and his relationship which he concluded affected the weight to be attached to his evidence about the child.
16. It therefore follows that although the Judge did not make a specific finding under Appendix FM it is clear from his decision that the appellant could not satisfy the Rules and that finding was clearly one open to him.
17. The main thrust of the appeal before me centred around the Judge's approach to the earlier evidence and article 8. Ms Najma's submission effectively was that if the Judge erred in the way he approached that evidence then his findings under both Appendix FM and article 8 contained an error.
18. I accept that submission has merit. The failure to specifically make findings under Appendix FM only becomes significant if the Judge's approach to the evidence as a whole is in error.
19. I have considered the written grounds of appeal and Ms Najma's oral submissions.
20. Although the appellant's current appeal was separate to that considered in 2014 it would be wrong for the Judge to overlook findings on credibility especially when the appellant's credibility was an issue in this current case. It was the total absence of the child's mother from his earlier hearing in 2014 that contributed to the Judge's adverse findings in this appeal. The Judge considered Ms Najma's explanation for the mother's absence and for the reasons he gave in paragraph [31] he found against the appellant and her. The Judge decided on the evidence, or lack of it, that no weight could be attached to the witnesses' statement and he gave his reasons in paragraphs [31] to [35] of his decision.
21. The Judge also was required to assess the appellant's relationship with the child's mother because that would dictate whether he accepted the appellant was the child's father. He identified inconsistencies in his evidence and the Judge clearly felt he was making his evidence up as he went along.
22. It is therefore incorrect to say that his rejection of the claim was based on findings made in 2014. The Judge considered the claim and based on the evidence presented he was not prepared to accept the appellant's account.
23. Once that stage had been reached any claim under the Immigration Rules fell by way side and the only issue remaining is whether the Judge erred in the way he approached article 8 ECHR.
24. Against the background of his findings he set out the Razgar test and he was bound to make the findings in paragraph [56] and [57]. He then made the findings about Section 117B and concluded it would not be disproportionate to reject his claim.
25. All the findings were open to him and there is no error in law.
DECISION
26. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law. I uphold the decision and dismiss the appeal.

Signed: Dated:

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD
I make no fee award because I have dismissed the appeal.

Signed: Dated:

Deputy Upper Tribunal Judge Alis