HU/11133/2016 & Ors.

• Status of case: Unreported
• Hearing date: 17 Nov 2016
• Promulgation date: 12 Apr 2017
• Publication date: 18 May 2022
• Last updated on: 18 May 2022

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/11133/2016
HU/11134/2016, HU/11149/2016
HU/11152/2016, HU/11154/2016
HU/11155/2016


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 17th November 2016
On 12th April 2017



Before

UPPER TRIBUNAL JUDGE RIMINGTON


Between

Mr AAS
MS ZAS
Mr JAS
Mr JFAS
MS GS
MS MS
(aNONYMITY DIRECTION Made)
Appellants
and

Entry Clearance Officer - Amman
Respondent


Representation:
For the Appellants: Ms B Smith, instructed by Islington Law Centre
For the Respondent: Mr P Duffy, Senior Home Office Presenting Officer


DECISION AND REASONS

1. The appellants are stateless Bidoons and are six children born between 1998 and 2011. They applied with their mother to join their father who had been granted refugee status in the United Kingdom in 2011. The appellants appealed, with permission, against a decision of First-tier Tribunal Judge Ross dismissing their appeals on human rights grounds against the refusal of entry clearance by an Entry Clearance Officer in Amman dated 22nd March 2016. At the hearing before me on 17th November 2016 I found an error of law in relation to the First-tier Tribunal decision and set aside the decision remaking the decision in favour of the mother. To date there has been no challenge to that decision. Although at the hearing for permission to appeal there was only substantive discussion of the mother’s case I invited the parties to make written submissions in respect of the children and my proposal to address the matter in the Upper Tribunal. There have been no submissions by the parties save for a later assertion by the appellants’ representatives that the family are separated. That is not correct as all the appellants, the six children, attended court before me and are in the United Kingdom with their parents. In an attempt to avoid repetition, I attach to this decision the previous error of law decision and substantive decision in relation to the mother (listed with the additional lead appeal number HU/11128/2016) promulgated on 6th December 2016 and in which directions were issued to the parties to make further written submissions. That decision sets out the history.
2. Although there was initially dispute about the paternity of the children, the appellants are all children of the sponsor father and the mother who has succeeded in her appeal. Their relationship with the father and mother was evidenced by way of DNA certificates. The children and mother appear to have remained as one unit and evidence was accepted that the father would visit the family on a regular basis The sponsor confirmed that he had visited his family in March 2013 and had referred to the stamps in his travel document, which show that he visited in May 2013, November 2013, February 2014, May 2014, September 2014, December 2014, March 2015 and September 2015. On each occasion he would always stay for at least three weeks. Clearly there is a close relationship between the father and the appellants.
3. This was the second refusal following an application in December 2012. The appellants provided, after some delay evidence of paternity and this is no longer disputed and the original decisions were withdrawn. The Entry Clearance Officer refusal of March 2016 was made under paragraphs 320(7A) and 352A. In effect, it was asserted that the applications of both the mother and children contained non-genuine documents and that the application was refused under paragraph 320(7A) and further under paragraph 352A and 353D. The Entry Clearance Officer was not satisfied that the appellants had submitted evidence to corroborate the claim of subsisting relationship with reference to the mother, and with reference to the children it was submitted that at the time the sponsor left home there was no evidence with the application of the claimed family life with the sponsor prior to his departure for the UK contrary to paragraph 352D(iv). In the refusals the Entry Clearance Officer specifically stated the appellants had submitted a certificate of entry of marriage and Ministry of Health birth registrations which were false. The refusal stated that there were document verification reports held on file by the office.
4. The appellants, with their mother, left Kuwait in April 2012 because they were afraid. They could not officially leave the country because they had not been issued with passports, and so they could not make an application to the British embassy in Kuwait, because since they had not been issued with visas they could not leave the country officially. The family chose to go to Syria. The British embassy closed because of the worsening security situation in Syria. The family then decided to go to Jordan. They entered Jordan on 3rd December 2012. On 11th December 2012 they applied for entry clearance at the British embassy in Amman.
5. In relation to the children’s birth certificates, as explained at paragraph 85 of the father’s asylum interview, they could not obtain official birth certificates. All the children were born at home. Bidoons are not allowed to go to hospital, because they cannot access public services. It was explained that when the child is born at home the midwife is the person who delivers the baby. They paid 40 dinars for this service, and in return for this fee received a peach coloured slip. This slip is used to obtain the vaccinations. Using this slip the government allows them to access the state hospital in order to obtain vaccinations so that diseases will not spread. These birth certificates are not therefore official documents, but are accepted in Kuwait for the purposes of the vaccination programme.
6. It is clear from MH (Respondent’s bundle: documents not provided) Pakistan [2010] UKUT 168 (IAC) that:
“Rule 13 of the First Tier Tribunal Rules requires an unpublished document to be supplied to the Tribunal if it is mentioned in the Notice of, or Reasons for Refusal or if the Respondent relies on it. Because the Notice of, or Reasons for Refusal form the statement of the Respondent’s case, however, the Tribunal is likely to assume that a document mentioned in either, but not supplied to the Tribunal, is no longer relied on”.
7. Although MH refers to previous Procedural Rules, there is equally a requirement under 23(2)(e) to produce an unpublished document which is referred to in a document such as the decision to which the notice of appeal relates. In other words, the Entry Clearance Officer should have, but did not, produce the document verification reports referred to in all of the notices of refusal and the Entry Clearance Officer did not. Only the document verification reports in respect of GS and JAS were produced.
8. Even in respect of the document verification reports produced, Shen (Paper appeals; proving dishonesty) [2014] UKUT 00236 (IAC) was not followed. As submitted by Ms Smith, key sections of the reports were not produced or were unparticularised. The explanation of the appellants was that in fact they were born at home and they did not have access to hospitals for the purpose of giving birth and in fact, the DVR considered pink slips that were issued by hospitals rather than by midwives at home. In line with the Court of Appeal case of Adedoyin, formerly AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773 the references to false means dishonestly false. It is always open to the appellant to proffer an innocent explanation and if that explanation meets a basic level of plausibility, the evidential burden reverts to the Secretary of State to answer that evidence.
9. In sum, the Secretary of State bears the burden of proving dishonesty. In this case, I find she has not discharged that burden. The DVRs’ conclusions are vague, unreferenced and unsupported by further evidence and although they suggest that the pink slips presented are similar to documents submitted by Iraqi nationals and that this had been confirmed by Ralon Amman, this allegation was entirely unsupported by the evidence referred to. The applicants had no way of assessing any such evidence having not been party to it which was procedurally unfair. Although there was a suggestion that the family were in fact Iraqi nationals, this was another assertion that was not made out by any further evidence by the Entry Clearance Officer despite having nearly four years from the date of application (initially made in 2012) to establish the facts.
10. Indeed, bearing in mind there were six children, all confirmed by DNA evidence to have been born both to the appellant and the sponsor, and their dates of birth ranged from 1998 to 2011, the very year that the appellant’s sponsor left, I would find it most surprising if a genuine and subsisting relationship were not to be found and further that the sponsor had not been living in a family unit with the wife and children prior to his departure and contrary to the Entry Clearance Officer’s assertions. As such the requirements of the reunion provisions under the Rules would appear to be fulfilled. I have addressed the issue of the eldest child born in 1998 (now for the purposes of paragraph 353D over the age of 18 years) but find that at the date of the application that child too was under the age of 18 years.
11. This appeal was mounted, however, on the basis of Article 8, and that is the limit of the appeal right. The decision was made in March 2016 but it is a relevant fact that the mother’s appeal has been allowed; both the father and mother are now located in the United Kingdom. As indicated above, this was an appeal on human rights grounds only and further to Section 85(4) as amended on an appeal under Section 82(1) against the decision the Tribunal may consider any matter which it thinks relevant to the substance of the decision, including a matter arising after the date of decision. It was Mr Duffy’s view that the Immigration Rules had been fulfilled, with regards the wife and Mostafa (Article 8 in entry clearance) [2015] UKUT 112 confirms that where a decision should be made on human rights grounds and the claimant satisfies the requirements of the Rules this would illuminate the Article 8 balancing exercise. The Tribunal in that case saw no justification for stopping a husband joining his wife when a Tribunal was satisfied that their circumstances satisfied the requirements of the Rules.
12. Applying the five stage test under Razgar v SSHD [2004] UKHL 27, I accept that there is a family life between the appellants and the sponsor, and clearly there is family life with the mother. I accept that any refusal would be an interference with family life which would have consequences of sufficient gravity to engage Article 8. Although on the face of it the decision of the Entry Clearance Officer was taken in accordance with the law and for the purpose of the protection of rights and freedoms of others though immigration control, as indicated, the Immigration Rules would appear to have been complied in relation to family reunion. I am not persuaded that paragraph 320(7A) has been made out by the Entry Clearance Officer in respect of the wife or the children for the reasons explored above.
13. The children were born on 14.1.2004, 10.10.2006, 5.10.2011, 21.10.2000, 12.1.2002 and 21.10.1998 (GAS). All save GAS are under the age of 18 years at the date of the hearing before me. I accept however that the application of GAS was made when she was a minor, that she is a female appellant and to refuse her appeal would mean she would be a stranded sibling. There is no evidence to suggest otherwise than she has lived with the family and is emotionally and financially dependant on the family unit and part of that family unit. Even as an adult I consider that she derives real and committed support from the family unit as an adult retains a family life with her father mother and siblings. I therefore have treated her as a child of the family. To separate the children at this stage would result in one ‘stranded sibling’.
14. The best interests of the children under Section 55 of the Borders, Citizenship and Immigration Act 2009 are clearly now to remain settled with their parents in the UK in a stable and secure environment, particularly when viewed against the background of the five year separation of this family, the peripatetic and precarious existences they have led and the serious health difficulties of the mother and father. Evidence was submitted from Croydon University Hospital to the effect that mother had advanced chronic kidney disease secondary to lupus and now the father has depression. The respondent’s delay of almost two years from the withdrawal of the previous decision to the making of a new decision in refusing the claims was also relevant to proportionality although the delay in their applications was in part owing to the failure to provide DNA confirmation.
15. Even if the best interests of the children clearly point to remaining with their parents in the United Kingdom (although not a trump card they are a significant factor) and the immigration rules are fulfilled, and relevant factors identified, there still is the question of Section 117 of the Nationality, Immigration and Asylum Act.
16. Section 117A sets out as follows:
“(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts –
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard –
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), ‘the public interest question’ means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2)”.
17. Section 117B(1) confirms that the maintenance of effective immigration control is in the public interest but if the appellants have met the Immigration Rules it would appear that the maintenance of effective immigration control regarding the public interest has been taken into account. Nonetheless, the further Rules under Section 117B(2) and (3) and which refer to the all the considerations listed in Section 117B must be addressed

(1) The maintenance of effective immigration controls is in the public interest.

(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.

(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
18. There was no evidence that the children could speak English or that they would be financially independent. Indeed they will be educated at public expense and supported at public expense. The father is on benefits. I also, however, balance into the equation and take into account that the family reunion requirements have no financial requirements.
19. The father is suffering from depression and I must take into account the detrimental impact that it would have on the father and mother if their children were not all successful in their appeals, Beoku-Betts v SSHD [2008] UKHL 39. In the balancing exercise the public interest cannot realistically justify refusing the children from being with their parents and it is inconceivable that minor children and the other remaining sibling should be left without their parents to fend for themselves. That decision would be positively against the best interests of the children and leave the Secretary of State in breach of her duty under S55 of the Borders Citizenship and Immigration Act 2009 when considering the promotion of the children’s welfare. T (s.55 BCIA 2009 – entry clearance) Jamaica [2011] UKUT 00483(IAC) confirms that Section 55 does not apply to entry clearance applications, and from which this decision stems but these children are now in the United Kingdom.
20. I follow Huang v SSHD [2007] UKHL 11, which confirmed
‘In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality’.
21. I do not find that the children should now be separated from the mother, and at this stage from the father, after their previous precarious existence. This would render most of them unaccompanied minors. The father is lawfully in the United Kingdom and the mother’s appeal has been successful, apparently without challenge. The children have followed lawful procedures in attempting to enter the United Kingdom and made entry clearance applications and have entered the United Kingdom as a result of the ‘take charge request’ accepted by the United Kingdom authorities from Sweden under Article 17.2 of the Dublin III Regulations. This is a discretionary clause which allows a Member State dealing with an application to request another Member State to take charge of an application in order to bring together family relations on humanitarian grounds. The children are stateless and have lived in Syria and Jordan and it is not possible to expect them to return there. Bearing in mind the father’s refugee status it would not be reasonable to expect the children to return to Kuwait. Their best interests significantly outweigh the public interest in immigration control and the light of events any refusal is unjustified.
22. For the above reasons, having found an error of law in the First-tier Tribunal decision and having set it aside, I remake the decision under section 12(2) (b) (ii) of the TCE 2007 and allow all the appellant’s appeals on human rights grounds.

Order
The appeals of the appellants are allowed

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings. This order is made because the decision involves minors.


Signed Helen Rimington Date 2nd March 2017

Upper Tribunal Judge Rimington




Fee Award

In the light of the decision to re-make the decision in the appeal, I have considered whether to make a fee award (rule 23A (costs) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007). I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011). I make a whole fee award as the appellants have been successful. This includes an award on the appeal of the mother HU.11128.2016.


Signed Helen Rimington Date 2nd March 2017

Upper Tribunal Judge Rimington







ANNEX


IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/11128/2016
HU/11133/2016
HU/11134/2016
HU/11149/2016
HU/11152/2016
HU/11154/2016
HU/11155/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17th November 2016
On 6th December 2016



Before

UPPER TRIBUNAL JUDGE RIMINGTON


Between

MRS FAA
Mr AAS
MS ZAS
Mr JAS
Mr JFAS
MS GS
MS MS
(aNONYMITY DIRECTION Made)
Appellants
and

Entry Clearance Officer - Amman

Respondent

Representation:

For the Appellants: Ms B Smith, instructed by Islington Law Centre
For the Respondent: Mr P Duffy, Senior Home Office Presenting Officer
DECISION AND REASONS

23. The appellants appeal, with permission, against a decision of First-tier Tribunal Judge Ross dismissing their appeals on human rights grounds against the refusal of entry clearance by an Entry Clearance Officer in Amman dated 22nd March 2016. The appellants are stateless Bidoons and are a mother and six children born between 1998 and 2011 who are all under the age of 18. They applied to join their husband/father who had been granted refugee status in the United Kingdom in 2011.
24. The Entry Clearance Officer refusal was made under paragraphs 320(7A) and 352A. In effect, it was asserted that the applications of both the mother and children contained non-genuine documents and that the application was refused under paragraph 320(7A) and further under paragraph 352A. The Entry Clearance Officer was not satisfied that the appellants had submitted evidence to corroborate the claim of subsisting relationship with reference to the mother, and with reference to the children it was submitted that at the time the sponsor left home there was no evidence with the application of the claimed family life with the sponsor prior to his departure for the UK contrary to paragraph 352D(iv). In the refusals the Entry Clearance Officer specifically stated with respect to the mother that she had submitted a certificate of entry of marriage and Ministry of Health birth registrations which were false. The refusal stated that there were document verification reports held on file by the office.
25. First-tier Tribunal Judge Ross sensibly considered all of the appeals in one decision, setting out the following:
“19. The DNA evidence clearly establishes that the children are the children of the appellant and her husband. I also accept the evidence of Mr Sultan who has attended court to give evidence that he has visited his wife on many occasions in Jordan and Sweden. His oral evidence is supported by the stamps in his passport. I therefore consider that on the balance of probabilities the relationship between the sponsor, and his wife is subsisting.
20. The real issue in this case is whether the respondent has proved on the balance of probabilities that the birth certificates are false. The waters are muddied in this case by the fact that the appellants are Bidoons and are not entitled to official birth certificates. The fact that they are Bidoons seems clear from the fact that the sponsor in the case has been granted asylum on that basis, and the DNA evidence shows that they are related.
21. I consider that the respondent has proved to a high degree of probability that the birth certificates are not genuine. The report makes it clear that the author of the report who is an employee at the British Embassy since June 2013 has not compared the documents presented by the appellant’s with official birth certificates, because the author has stated that ‘the birth certificate presented is commonly known as a pink slip and is a certificate of live births issued by an individual hospital .... A full birth certificate has not been presented”. The author considers that the document presented is in the same style and format as other live birth certificates submitted as part of family reunion visa applications by claimed Bidoons whom Ralon Amman have been able to establish are in fact Iraqi nationals. When compared to a known genuine sample it is noted that the document in question is landscape format, whereas the known genuine samples are in portrait format. In addition, key areas of the document are missing when compared to a genuine example. Not all the details of the birth have been filled in. Looking at this evidence, I must conclude to a high degree of probability that the documents are forgeries. I therefore consider that the respondents was correct to refuse the applications under paragraph 320 7A.
22. I must also consider whether the appellants could succeed under article 8. I must first consider whether they could succeed under Appendix FM. The requirements for entry clearance as a partner under Appendix FM are set out at section EC-P, and the appellant must satisfy the suitability and the eligibility requirements. In this case the appellants cannot satisfy the suitability requirements because false documents have been submitted in relation to the application. (S-EC 2.2). In relation to the eligibility requirements, although the appellant can satisfy the requirements that the relationship is subsisting, she cannot satisfy the requirements in relation to the income that is required to e shown by the sponsor in the UK, namely £18,600. The sponsor has stated that he is in receipt of income support because he suffers from poor health. It’s also the position that the appellant would have to meet the requirements of the English language test.
24. I consider that the respondent has proved that the decision is proportionate. The appellants have for whatever reason resorted to producing false documents in order to obtain entry clearance. They are safe and have medical care in Sweden. They are not in the UK at the moment, and the decision therefore, only maintains the status quo. The sponsor can continue to see his family in Sweden. Applying sections 117A-D of the Nationality Immigration and Asylum Act 2002, the maintenance of effective immigration controls is in the public interest. It is in the public interest and in particular the economic well-being of the UK that persons who seek to enter or remain in the UK are financially independent because such persons are not a burden on taxpayers, and are better able to integrate into society. However, in this case, as I have already mentioned, the appellants will be a considerable burden on the taxpayer because they are not supported by the sponsor, who does not work. For these reasons it is clear that although the decision of the respondent interferes with family life, it is proportionate”.
26. The background to the case was that the appellant’s husband, Mr S, fled to the UK and was recognised to be a refugee on 7th December 2011. He left his wife and children in Kuwait and the applications which are the subject of this appeal were in fact made at the British Embassy in Amman on 10th December 2012 but refused on 25th April 2013. Following the lodging of appeals against the refusal on 23rd May 2013, DNA tests were carried out which established that the children were indeed related as claimed to Mr S and, as a result, the Entry Clearance Officer withdrew the decisions and the appeals subsequently lapsed. Fresh decisions were made on 22nd March 2015 over three years later. The family left Jordan in October 2015 and went to Sweden which is where they were living at the date of Judge Ross’ decision. Their attempts to claim asylum in Sweden were thwarted because it was considered by the Swedish authorities that because the appellant’s husband was in the UK, the UK should take charge of the appeal. It was also considered that the application was urgent because the lead appellant wife suffered from chronic renal failure and required a kidney transplant. Mr S was a possible donor.
27. The subsequent refusal described above suggested that the sponsor had obtained leave to remain in the UK on 7th November 2011 but had not sought to visit the appellant in her country of residence or to meet her close to the area where she lived. The application for family reunion was not made for nearly twelve months and there was no evidence of family life in Kuwait. Consideration was given to the appellant’s human rights under Article 8 but it was considered that these did not merit international protection because she had failed to prove that the sponsor and the appellant were in a subsisting relationship.
28. It is clear that the appeal was on human rights grounds only.
29. The bundle before the First-tier Tribunal included a statement from Mr Sultan who confirmed that he would be eligible to apply for indefinite leave to remain on 6th December 2016, he had suffered considerably owing to the separation from his family, and his memory and mental health were not good. He stated he had married his wife on 5th December 1996 and they lived together until he left Kuwait. His wife was pregnant when he left with his youngest daughter Zaynab. He left Kuwait because of considerable difficulties there which are set out in his asylum interview dated 16th November 2011. He explained he had initially left Kuwait in 2010, but after imprisonment in Greece and Turkey he returned to Kuwait in 2011, where he was again imprisoned. Eventually he arrived in the UK on 6th November 2011. Bidoons in Kuwait have no access to official institutions, cannot obtain passports, cannot attend school, cannot go to state hospitals and are not recognised as people and even have to work illegally.
30. The appellants left Kuwait in April 2012 because they were afraid. They could not officially leave the country because they had not been issued with passports, and so they could not make an application to the British embassy in Kuwait, because since they had not been issued with visas they could not leave the country officially. His family chose to go to Syria. The British embassy closed because of the worsening security situation in Syria. The family then decided to go to Jordan. They entered Jordan on 3rd December 2012. On 11th December 2012 they applied for entry clearance at the British embassy in Amman. The sponsor stated that he had explained at paragraph 181 of his asylum interview that they could not obtain a marriage certificate in Kuwait because of their status, or lack of it. They cannot gain access to official documentation. They are undocumented. The marriage certificate is not an official state recognised document. It is informal, but it is an Islamic document. It is written by the sheik, who married them at their home and by two witnesses. People who marry in accordance with Islamic law receive this form of contract, as they cannot obtain formal marriage certificates. In relation to his children’s birth certificates, as he had explained at paragraph 85 of his asylum interview, they cannot obtain official birth certificates. All the children were born at home. Bidoons are not allowed to go to hospital, because they cannot access public services. When the child is born at home the midwife is the person who delivers the baby. They pay 40 dinars for this service, and in return for this fee receive a peach coloured slip. This slip is used to obtain the vaccinations. Using this slip the government allows them to access the state hospital in order to obtain vaccinations so that diseases will not spread. These birth certificates are not therefore official documents, but are accepted in Kuwait for the purposes of the vaccination programme. The sponsor confirmed that he had visited his family in March 2013. He travelled by EasyJet for £50–£60. The family were very distressed when he left to come back to the UK, they were upset because they could not go with him. He stated that he had visited Jordan on many occasions to see his family. He referred to the stamps in his travel document, which show that he visited in May 2013, November 2013, February 2014, May 2014, September 2014, December 2014, March 2015 and September 2015. On each occasion he would always stay for at least three weeks.
31. The grounds for the application for permission to appeal were made on three bases:
(1) An irrational approach to the assessment of false documents and/or procedural unfairness. It was submitted that the basis on which Immigration Judge Ross had refused the appeals was because he accepted the respondent’s submissions in the findings of two document verification reports. It was submitted that the judge had irrationally accepted the contents of the document verification report and had not accepted the appellant’s explanation for those documents. The applicants each made it clear that the birth certificates submitted were not official birth certificates which they could not obtain but pink slips issued for the purpose of accessing the Kuwaiti immunisation programme. This explanation was not taken into account. The DVR report made it clear that it was considering a birth certificate commonly known in Kuwait as a pink slip of live birth issued by an individual hospital but the applicants consistently stated that they were born at home and the judge should have considered that the DVR considered pink slips that were issued by hospitals rather than by midwives at the family’s home. This was central to the evidence and was irrational or unreasonable to conclude that the respondent had discharged the burden of proof. The charges in the document verification report criticised that the documents submitted by the appellant were unparticularised and further it was stated that key areas of the documents provided were missing but had not specified which areas. The applicants had never claimed that the pink slips were issued by the authorities and this was a highly relevant fact which was raised during the hearing but not addressed.
(2) It was also suggested on the pink slips that they were documents submitted by Iraqi nationals as confirmed by “Ralon Amman” but this allegation was entirely unsupported by the evidence and the applicants had no way of assessing any such documents without having seen it. The judge should have considered all of the factors above.
(3) Further, the respondent failed to provide any evidence in relation to the appellant’s marriage and as explained, the marriage document submitted was religious and not an official document. As per Shen (Paper appeals; proving dishonesty) [2014] UKUT 236 the appellant had offered what was evidently a plausible explanation and the respondent failed to produce evidence to prove that allegation of dishonesty, as required. There was no proper basis for the First-tier Tribunal Judge to refuse the appeal under the Immigration Rules. Additionally, the respondent only produced the document verification reports in respect of two of the children and it was speculation on the part of the judge to presume that the outstanding DVRs came to the same conclusion and for the same reason in respect of the other children.
32. Following sensible submissions made at the hearing by Ms Smith and the equally sensible responses to those submissions by Mr Duffy, I am persuaded that there is an error of law in the decision in relation to the assessment of the documentation. As identified above, the judge considered that the respondent had proved to a high degree of probability that the birth certificates were not genuine. The first point to make is that the judge only considered the birth certificates in relation to two of the children, that being GS and JAS. There were in fact six children and it is speculation on the part of the judge to assume that there were indeed remaining document verification reports regarding the remaining appellants and further that they contained the same information.
33. Similarly, no document verification report was produced in relation to the marriage certificate.
34. It is clear from MH (Respondent’s bundle: documents not provided) Pakistan [2010] UKUT 168 (IAC) that:
“Rule 13 of the First Tier Tribunal Rules requires an unpublished document to be supplied to the Tribunal if it is mentioned in the Notice of, or Reasons for Refusal or if the Respondent relies on it. Because the Notice of, or Reasons for Refusal form the statement of the Respondent’s case, however, the Tribunal is likely to assume that a document mentioned in either, but not supplied to the Tribunal, is no longer relied on”.
35. Although MH refers to previous Procedural Rules, there is equally a requirement to produce an unpublished document under Regulation 23 of the new Procedure Rules and which I identify. The judge made no reference to this.
36. Rule 23 of the First-tier Tribunal Procedure Rules sets out as follows:
“Response: entry clearance cases
23. (1) This rule applies to an appeal against a refusal of entry clearance or a refusal of an EEA family permit (which has the meaning given in regulation 2(1) of the 2006 Regulations).
(2) When a respondent is provided with a copy of a notice of appeal from a refusal of entry clearance or a refusal of an EEA family permit, the respondent must provide the Tribunal with –
(a) the notice of the decision to which the notice of appeal relates and any other document the respondent provided to the appellant giving reasons for that decision;
(b) a statement of whether the respondent opposes the appellant’s case and, if so, the grounds for such opposition;
(c) any statement of evidence or application form completed by the appellant;
(d) any record of an interview with the appellant in relation to the decision being appealed;
(e) any other unpublished document which is referred to in a document mentioned in sub-paragraph (a) or relied upon by the respondent; and
(f) the notice of any other appealable decision made in relation to the appellant.
(3) The respondent must send to the Tribunal and the other parties the documents listed in paragraph (2) within 28 days of the date on which the respondent received from the Tribunal a copy of the notice of appeal and any accompanying documents or information provided under rule 19(6)”.
37. Procedure Rule 23(2)(e) as highlighted above confirms that the respondent must provide the Tribunal with any other unpublished document which is referred to in a document such as the decision to which the notice of appeal relates.
38. In other words, the Entry Clearance Officer should have produced the document verification report referred to in all of the notices of refusal and the Entry Clearance Officer did not. It is clear from the decision of Judge Ross that the document verification reports in respect of GS and JAS were only produced on the morning of the hearing which failed to give adequate time for the appellants to consider those reports.
39. Even in respect of the document verification reports produced, the judge did not follow Shen. There was no effective confirmation in the DVR that the false documents had been supplied in respect of the two children and indeed, as submitted by Ms Smith, key sections of the reports were not produced or were unparticularised. The judge did not engage with the explanation of the appellants which was that in fact they were born at home and they did not have access to hospitals for the purpose of giving birth and in fact, the DVR considered pink slips that were issued by hospitals rather than by midwives at home. In line with the Court of Appeal case of Adedoyin, formerly AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773 the references to false means dishonestly false. It is always open to the appellant to proffer an innocent explanation and if that explanation meets a basic level of plausibility, the evidential burden reverts to the Secretary of State to answer that evidence. In sum, the Secretary of State bears the burden of proving dishonesty. It was quite clear that in this case the judge merely accepted the two birth certificates without engaging with the explanations given by the appellants and that must be an error of law.
40. The DVRs’ conclusions are vague, unreferenced and unsupported by further evidence and although they suggest that the pink slips presented are similar to documents submitted by Iraqi nationals and that this had been confirmed by Ralon Amman, this allegation was entirely unsupported by the evidence referred to. The applicants had no way of assessing any such evidence having not been party to it which was procedurally unfair.
41. On that basis I set aside the findings of the judge in relation to the documentation and I find that the Entry Clearance Officer has evidenced that false documents have indeed been produced in any of the appeals.
42. The judge had accepted that the DNA evidence clearly established that the children were the children of the appellant and her husband, and the judge accepted at paragraph 19 the evidence of Mr Sultan who had attended court to give evidence that he had visited his wife on many occasions in Jordan and Sweden and that oral evidence was supported by the stamps in his passport. On the balance of probabilities the judge considered that the relationship between the sponsor and his wife was subsisting and that particular finding will be preserved. Clearly the relationship between the parents and children is subsisting.
43. As Mr Duffy conceded at the hearing, the remainder of the Rules with respect to the wife under paragraph 352A had been met. The chief objection to the success of the application was the application of paragraph 320(7A) and as I have found it is clear that the Entry Clearance Officer had not provided evidence in accordance with MH.
44. As indicated above, this was an appeal on human rights grounds and further to Section 85(4) as amended on an appeal under Section 82(1) against the decision the Tribunal may consider any matter which it thinks relevant to the substance of the decision, including a matter arising after the date of decision. It was Mr Duffy’s view that the Immigration Rules had been fulfilled, and in line with Mostafa (Article 8 in entry clearance) [2015] UKUT 112, Ms Smith suggested that the appeal in relation to the wife could be allowed outright. Certainly, Mostafa confirms that where a decision should be made on human rights grounds and the claimant satisfies the requirements of the Rules this would illuminate the Article 8 balancing exercise. The Tribunal in that case saw no justification for stopping a husband joining his wife when a Tribunal was satisfied that their circumstances satisfied the requirements of the Rules.
45. That to my mind is not the whole story and because albeit that the matter should be considered on Razgar grounds and the five stage test, there still is the question of Section 117 of the Nationality, Immigration and Asylum Act.
46. Section 117A sets out as follows:
“(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts –
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard –
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), ‘the public interest question’ means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2)”.
47. Section 117B(1) confirms that the maintenance of effective immigration control is in the public interest and if the appellants have met the Immigration Rules it would appear that the maintenance of effective immigration control regarding the public interest has been taken into account. Nonetheless, there are further Rules which need to be given consideration such as Section 117B(2) and (3) which refer to the all the considerations listed in Section 117B which include

(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
48. First-tier Tribunal Judge Ross proceeded on to consider the balancing exercise with respect of Article 8 at paragraph 24 but his starting point was that the appellants had, for whatever reason, resorted to producing false documents in order to obtain entry clearance. That conclusion, for the reasons given above, is erroneous and with that in mind I move to the consideration of ground 2 and ground 3 of the grounds for permission to appeal. Ground 2 is certainly made out, that is the failure to consider the best interests of the children under Section 55 of the Borders, Citizenship and Immigration Act 2009. Nowhere in the decision of Judge Ross was there any consideration of the best interests of the children and that was conceded by Mr Duffy.
49. In respect of ground 3, the appellant submitted that the judge’s reasoning was wholly deficient in respect of Article 8 and it was submitted that the judge failed to give a proper balancing exercise, particularly when viewed against the background of the five year separation of this family, the serious health difficulties of the lead appellant, and indeed, evidence was submitted from Croydon University Hospital to the effect that the lead appellant had advanced chronic kidney disease secondary to lupus. The best interest of the children was to be in a stable environment and the respondent’s delay of almost two years from the withdrawal of the previous decision to the making of a new decision in refusing the claims was also relevant to proportionality and that was not considered.
50. At the hearing before me, the appellants all attended as a ‘take charge decision’ had been made and the appellants had been relocated from Sweden to the United Kingdom.
51. To my mind, the acceptance by the judge of the assertion of submission of false documentation as explored above was erroneous and it was this starting point which fatally flawed the analysis under Article 8.
52. I set aside the conclusions of the judge, save for the preservation of the section of the determination which confirmed that the relationship between the lead appellant and sponsor was genuine and subsisting. Indeed, bearing in mind there were six children, all confirmed by DNA evidence to have been born both to the appellant and the sponsor, and their dates of birth ranged from 1998 to 2011, the very year that the appellant’s sponsor left, I would find it most surprising if a genuine and subsisting relationship were not to be found.
53. I also note that a letter from the hospital in Sweden stated that the lead appellant has severely impaired kidney function and indeed, that is supported by the Croydon Health Service and it would be desirable, according to the letter from Sweden, for the appellant’s husband to visit Sweden to see whether a kidney donation could be arranged.
54. On applying the five stage test I turn to a consideration of proportionality having accepted that there is a family life between the appellants and the sponsor, and having accepted that interference would be of grave consequences. As indicated, the Immigration Rules would appear to have been complied in relation to family reunion. As indicated above, I am not persuaded that paragraph 320(7A) has been made out by the Entry Clearance Officer in respect of the wife or the children for the reasons explored above.
55. On turning to proportionality, it is quite clear that the best interests of these children are to remain in a stable and secure family environment. The evidence suggests that the father and sponsor suffers from depression and the mother suffers from kidney disease. There has been delay in their applications although this was in part owing to the failure to provide DNA confirmation. The father has been granted refugee status as an undocumented Bidoon and although there was a suggestion that the family were in fact Iraqi nationals, this was another assertion that was not made out by any further evidence by the Entry Clearance Officer despite having nearly four years from the date of application (made in 2012) to establish the facts.
56. The family has now been subject to a take charge requirement which would indicate that there are very compelling circumstances such that their removal should not be effected.
57. I have taken into account Section 117B and have already noted that the public interest would appear to have been satisfied by the fulfilment of the Immigration Rules under the family reunion policy. Nonetheless, I do note and accept that the family cannot speak English and that the father is on benefits. The father is also however suffering from depression and lives alone and not coping, but I also balance into the equation and take into account that the family reunion requirements have no financial requirements and according to SS Congo v SSHD [2015] EWCA Civ 317, I must have reference to those Immigration Rules.
58. That being said, I would allow the mother’s appeal outright. At this stage I can see no possibility that the children would be separated from the mother, and at this stage from the father, after their previous precarious existence. For these reasons I therefore allow the appeal of the mother on human rights grounds.
59. I am aware that Mr Duffy was not given the opportunity at the hearing to make submissions in respect of the children’s best interests and the hearing proceeded on the basis that in the event of an error of law in relation to the children the matter should perhaps be remitted to the First-tier Tribunal.
60. The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007), save where I have indicated that I have preserved the findings and remake the decision under section 12(2) (b) (ii) of the TCE 2007 in respect of the lead appellant.
61. I do not consider that the extent and nature of the findings require remission to the First-tier Tribunal in respect of the remaining appellants and consider that the matter can be progressed by the parties submitting written representations upon which I shall make a decision. Should there be any objection to this course of action notification should be lodged within 7 days of this decision.
Directions
The parties should submit further representations in relation to the appeals of the children within 7 days of this decision and serve those submissions both on the Tribunal and the other party.
Order
The appeal of Mrs F H A (the mother) is allowed
On the remaining appellants please see direction above.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings. This order is made because the decision involves minors.

Signed Date 1st December 2016

Upper Tribunal Judge Rimington



Fee Award

In the light of the decision to re-make the decision in the appeal, I have considered whether to make a fee award (rule 23A (costs) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007). I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011). I reserve my decision on any fee award until determination of the remaining appellant’s appeals.


Signed Date 1st December 2016

Upper Tribunal Judge Rimington