Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/10138/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Tribunal
Decision & Reasons promulgated
on 6 April 2017
on 10 April 2017

Before

UPPER TRIBUNAL JUDGE HANSON

Between

TANVEER HUSSAIN
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Sarwar instructed by M A Consultants
For the Respondent: Mr Mills Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against a decision of First-tier Tribunal Judge Jerromes (‘the Judge’) promulgated on 5 September 2016 in which the Judge dismissed the appellant’s appeal against the refusal of an application for leave to remain in the UK based on family life with a British partner and the partner’s children.
2. The appellant is a citizen of Pakistan. The Judge noted at [5] of the decision under challenge the following:

5. At the Hearing, Mr. Fraczky helpfully clarified that if I find that the Appellant is in a genuine and subsisting parental relationship, the Respondent does not argue that it is reasonable to expect the British children to leave the UK (para 4.3 above). This therefore leaves two central issues:
5.1 has the Respondent proved the Appellant used deception?
5.2 is the Appellant in a genuine and subsisting relationship with (a) the sponsor and (b) her children?

3. In relation to the first of those issues the Judge considered the evidence relied upon by the Respondent provided by ETS leading to a conclusion that the respondent’s evidence was not sufficient to discharge even the initial evidential burden upon her to show that the appellant procured a TOEIC certificate by dishonesty. Although Mr Mills submitted the Secretary of State should have cross appealed the ETS point no such cross-appeal was made leaving this a preserved finding.
4. In relation to the second issue, the Judge sets out detailed findings at [44-46] which are composed of several subparagraphs.
5. The appellant sought permission to appeal which was initially refused by another judge of the First-tier Tribunal but granted on a renewed application to the Upper Tribunal in the following terms:

1. The First-tier Tribunal Judge’s wholesale rejection of everything that the couple said and every piece of evidence they produced suggests nothing the couple might have said would be accepted as accurate or persuasive, notwithstanding a lack of reasoning for such a withering condemnation. Regrettably, I think it arguable that this gives the impression of unfairness. It is for this reason that I grant permission to appeal because, above all, a hearing must be fair.
2. This is unfortunate because the merits of the application were poor, according to the refusal letter. The appellant’s past use of a fraudulent English language test certificate counted against him and there is a public interest in refusing further leave to those who have used deception in previous applications. He could not properly be regarded as the husband of his partner because Islamic marriages are not recognised in the United Kingdom. This impacted upon whether he could be regarded as a parent of his partner’s children. This significantly diminished the weight that could be attached to the relationship with his partner and her children.
3. The appellant entered the United Kingdom in August 2012 and was granted leave in stages until May 2015. Three months before he had moved in to live with his partner but the length of the relationship was not sufficient to attract much weight since it was not a legal marriage.
4. I therefore see little or no grounds for a finding that the appellant’s removal is unlawful or disproportionate. The appellant might wish to consider this before embarking upon the appeal which, in the interests of a fair hearing, I have permitted to be argued.

6. The judge granting permission clearly thought it arguable that there had been a procedural error sufficient to amount to a material error of law in the way in which the hearing was conducted.
7. At the outset Mr Sarwar was asked whether he was asserting unfairness or whether the true nature of his challenge is an assertion that the findings made by the Judge are perverse.
8. No evidence has been provided supporting an assertion the Judge was bias, that the Judge failed to ensure that either party had a fair hearing, or that any other procedural irregularity arose in relation to the way the hearing was conducted. It is not made out therefore that any issue of fairness arises and nothing has been established that would warrant it being found that the appellant did not have a fair hearing.

Error of law

9. Mr Sarwar submitted that the judge granting permission had misunderstood the issue. The Judge had made perverse findings in relation to the Social Worker whose identity was supported by an email address. It was also stated that the letter from the carer of the child was such the Judge should have given it greater weight as there is reference at [25] to the evidence of the appellant who was asked about the Social Worker who he named as Jade, and about the child Rizwan’s carer who he stated is named Tracey and that sometimes a Mrs C Willetts comes and sometimes Tracey.
10. In relation to a letter from a stepdaughter, it was submitted that this ties in with information of a similar nature provided to the Judge and should have been properly considered in the decision-making process and that the Judge failed to set out whether she found the sponsor appellant to be credible witnesses especially in the light of the fact they had given consistent evidence in relation to their role within the relationship and within the family unit.
11. In relation to the first issue, the Judges treatment of a letter produced purportedly by a Social Worker, the Judge finds at [44.5]:

44.5 I place little weight on the letter from the Social Worker from Sandwell Children’s Services dated 26 July 2016 [A1 8–9] as this is not on headed notepaper, the writer was not present at the hearing and there is no evidence of the writer’s identity. The Sponsor says the Social Worker is Jade Allport but the signature is illegible.

12. The Judge clearly considered this evidence and correctly noted concerns in relation to its format. The document headed “To whom it may concern” and dated 26 July 2016 is in the form of a hand-written note, not in the form of an official report from Smethwick Social Services. The Judge is correct to note that the signature is not altogether clear and although it is accepted an email address appears at the top of the second page it is not clear that that is the email address of the author of the letter, especially as nothing within the letter confirms that the name appearing at the front of the email address is the same as the signatory.
13. A second letter from Mrs C Willetts was considered by the Judge at [44.6] in relation to which it was found:

44.6 I also place little weight on the letter from Mrs C Willetts, Riswan’s carer, dated 5 July 2016 as again this is not on headed notepaper, the writer was not present at the hearing and there is no supporting evidence of the right’s identity.

14. That letter, also addressed “To whom it may concern”, is in hand written form. The letter contains only brief details which, like the previous letter, are not adequately supported by evidence to confirm the facts therein.
15. The Judge clearly had concerns regarding the weight she could place upon this evidence.
16. The letter from the child Iesha was not rejected by the Judge as asserted in submissions. The findings in relation to this evidence are to be found at [44.12] and in the following terms:

44.12 Iesha has written a letter (undated) [A17] in which she says she lives with her “stepdad” and that he is “more of a dad to me and my brother than my biological dad was because he does wot [sic] the dad should do”. However, this is the only letter in support; there are no letters from friends or other family (including the Sponsors family in the UK) and in the context of the weight of the other evidence, it is insufficient to support a finding that the Appellant is in a genuine and subsisting relationship with the Sponsor as her partner and/or with her children in a parental role.

17. The finding in relation to this evidence is therefore that it was not sufficient to discharge the burden of proof on the appellant when considering the second of the two elements the Judge was required to consider, alone or together with that evidence on which the Judge felt able to place appropriate weight. The submission the Judge erred in failing to make findings regarding the credibility of the appellant and/or sponsor have no arguable merit. A person can be credible yet still failed to adduce sufficient evidence to discharge the evidential burden upon them. The finding of the Judges not that the evidence presented is false or forged, but that the quality of that evidence was poor and insufficient to discharge the evidential burden to the required civil standard.
18. The decision under challenge contains further findings relating to the lack of evidence including there being no independent medical evidence referring to the appellant’s involvement with the child Rizwan, no evidence from each of the children’s schools, and sustainable findings in relation to the weight that could be placed on other parts of the documentary evidence.
19. As stated above, the real challenge is to the weight given by the Judge to the evidence when the settled position is that weight is a matter for the Judge, provided the evidence has been considered with the required degree of anxious scrutiny and adequate reasons given for findings made.
20. In relation to the submission that the Judge’s findings are perverse, in Dasgupta (error of law – proportionality – correct approach) [2016] UKUT 00028 the Tribunal held that in error of law appeals relating to findings of fact, the Upper Tribunal should apply the principles in Edwards v Bairstow [1956] AC 14. In Edwards v Bairstow Viscount Simonds said " For it is universally conceded that, although it is a pure finding of fact, it may be set aside on grounds which have been stated in various ways but are, I think, fairly summarised by saying that the court should take that course if it appears that the commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained." Elsewhere the House of Lords referred to " perversity", defining this as a case in which " ..... the facts found are such that no person acting judicially and properly instructed as to the relevant law could come to the determination under appeal."
21. In R and Others v SSHD [2005] EWCA civ 982 Lord Justice Brooke noted that perversity represented a very high hurdle. It embraced decisions which were irrational or unreasonable in the Wednesbury sense.
22. An important question to consider in this respect is whether the findings of the Judge in relation to the evidence were reasonably open to the Judge based on the material considered in the round. I do find that the evidence was considered with the required degree of anxious scrutiny and that adequate reasons have been given. Whilst others may not come to the same conclusions that is not the appropriate test. I find it has not been made out that the findings in relation to the evidence relied upon by the appellant are so unreasonable that no reasonable person acting reasonably could have made them.
23. No arguable legal error material to the decision to dismiss the appeal is made out based on the submissions made to the Upper Tribunal. The determination shall stand.
24. This is a case where there may be a lot more happening than the First-tier Tribunal were told. It may be that proper detailed reports from experts may be of benefit in assessing what is happening. The problem with this appeal is that the quality of the evidence was found to be insufficient to discharge the evidential burden upon the appellant. If better evidence exists it may be open to the appellant to make a fresh application which can be considered on its merits.

Decision

25. There is no material error of law in the First-tier Tribunal Judge’s decision. The determination shall stand.

Anonymity.

26. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make no such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated the 6 April 2017