Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/07851/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 January 2019
On 30 January 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

Arsherr Gayaneth Sanjitha Fernando
(ANONYMITY DIRECTION not made)
Appellant
and

ENTRY CLEARANCE OFFICER - UKVS SHEFFIELD
Respondent

Representation:
For the Appellant: Miss S Anzani, Counsel instructed by Nag Law Solicitors
For the Respondent: Mr S Whitwell, Senior Presenting Officer

DECISION AND REASONS

1. The Appellant, a national of Sri Lanka, date of birth 14 July 1996, appealed against the ECO's decision to refuse entry clearance made on 22 June 2017. His appeal came before First-tier Tribunal Judge K Swinnerton who, on 30 July 2018, in a brief decision dismissed the appeal made outside of the Rules but with reference to paragraph 352D in relation to family reunion.

2. The Judge's decision was appealed and permission to appeal was given in the Upper Tribunal on 16 November 2018 on the basis:-
"Arguably the Judge made factual errors as set out in the grounds which impacted upon his findings. It is also arguable that he unreasonably concluded that the Sponsor, who has refugee status, could visit the Appellant in Sri Lanka".
3. The appeal before the Judge raised significant issues and, bearing in mind the age of the Appellant, a reference to a degree to his current circumstances in Sri Lanka was obviously material to the issue of whether there were, were it under the Rules, the kind of exceptional or sufficiently compelling circumstances.

4. It is clear that the Judge in two points in the decision, in paragraphs 22, 23 and 24, had plainly formed a view that the personal circumstances of the Appellant in Sri Lanka were unconnected, as he had claimed, to the issue of reporting to the authorities and that essentially what was being said was that he had the current support of family members, grandparents and so forth in Sri Lanka, irrespective of the fact, of course, that he was absent of, and had been absent from, his mother for a number of years.

5. The basis on which the Judge could form that view on the motivational issues is tackled in the grounds, particularly by reference to evidence that was before the Judge from which the inference was being drawn, that the Appellant's personal circumstances were affecting his ability to continue in education as he needed to do.

6. The Judge did not, in that sense, give reasons as to why he rejected the views about the impact of the Appellants' life in Sri Lanka affecting his achievements. The Judge identified to a degree the evidence that he received, but did not, indicate why he rejected the inferences that they drew from the circumstances in which the Appellant was living in Sri Lanka.

7. The second ground is really, in fact, of no particular relevance, although it plainly was an error of fact, in that the Appellant's mother (the Sponsor) had been granted refugee status in 2016 on the basis of ill-treatment at the hands of the Sri Lankan authorities. The suggestion that she could go back to visit from time-to-time really had no merits and it was difficult to see why the Judge could say that he was not clear why the Sponsor cannot visit Sri Lanka. Mr Whitwell submitted that that is an error, but it is not material, ultimately, to the decision. The point not particularly taken, but I was concerned that the Judge gives nearly no real reasons, with reference to the Rules, for the conclusion that there were no exceptional, compelling circumstances. The Judge may be right, but I find the explanation given in the decision somewhat insufficient. Nevertheless, I do not find an error of law on that discrete basis.

8. Having considered the matter I find that the first ground has some merit and that it could be a different Tribunal properly considering the evidence would reach a different conclusion on this issue of enabling family reunion outside of the Rules. Accordingly, I find that the Original Tribunal's decision should not stand. The matter will be returned to the First-tier Tribunal to be determined in accordance with the law.

DIRECTIONS
(1) List Hatton Cross not before FtTJ Swinnerton.
(2) Time - two hours.
(3) No interpreter required.
(4) Any further evidence to be served in accordance with any directions given at a CMRH or a PTR if one takes place, but in any event any further statements relied upon particularly clarifying the Appellant's current position needs to be produced not less than seven working days before the date for the further hearing and served on the Respondent and Tribunal accordingly.
(5) No anonymity order was sought nor is one required.

Signed Date 16 January 2019

Deputy Upper Tribunal Judge Davey