Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/12196/2015
THE IMMIGRATION ACT
Heard at Field House
Decision & Reasons Promulgated
On 12th December 2017
On 18 December 2017

Before
DEPUTY UPPER TRIBUNAL JUDGE MCCLURE

Between
Ms Sacarah Vanique Heslup
(No anonymity direction made)
Appellant
and
The Entry Clearance Officer, Shefo
Respondent
Representation:
For the Appellant: Ms Bexsom Counsel instructed by AJA Solicitors
For the Respondent: Ms Ahmad, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The appellant, Ms Sacarah Vanique Heslup date of birth 15 February 1998, is a citizen of Jamaica. Whilst at the time of the original application the appellant was a minor, the appellant is now an adult. Having considered all the circumstances, I do not consider it necessary to make an anonymity direction.
2. This is an appeal by the respondent against the decision of First-tier Tribunal Judge Majid. I have for the purposes of this appeal kept the designation of the parties as they appeared in the appeal in the First-tier Tribunal.
3. The original application was made on 14 October 2015 for entry clearance to the United Kingdom as the child of a person present and settled in the United Kingdom under the Immigration Rules and under article 8 of the ECHR. The judge allowed the appeal of the appellant against the decision of the respondent to refuse the appellant entry clearance to the United Kingdom to join her mother. The respondent had considered the application under the Immigration Rules and also under Article 8 of the ECHR.
4. The decision of the first-tier Tribunal Judge had been promulgated on 6 May 2017. Permission to appeal to the Upper Tribunal was granted by First-tier Tribunal Judge Holmes on 13 July 2017. Thus the matter appears before me to determine in the first instance whether or not there is a material error of law in the original decision.
5. Within the Explanatory Statement the respondent had highlighted the following factors in refusing the application: -
a) It was accepted that the appellant was the natural child of the sponsor.
b) It was accepted that the sponsor was present and settled in the United Kingdom and working for the NHS.
c) It was not accepted that the sponsor had had sole responsibility for the appellant. Whilst a large number of money transfer had been submitted to establish that the sponsor was financially supporting the appellant, sole responsibility engaged factors other than mere financial support. The ECO was not satisfied that there was evidence that the sponsor had ever provided emotional or other support or paid an abiding interest in the upbringing of the child. There was no evidence that the sponsor had been involved in the major decisions in the child's life.
d) Whilst WhatsApp Internet conversations had been provided these covered a limited period of January 2015 to July 2015.
e) Whilst a number of photographs had been submitted, these did not establish that the sponsor had had a major and active role in the appellant's life.
f) There was no evidence to show that the sponsor had any involvement in any decisions affecting education, moral, religious social, medical or other significant aspects of the appellant's life.
g) There was no evidence of any serious or compelling circumstances which would make exclusion undesirable.
6. In the light of the refusal letter it was incumbent upon the judge to deal with those aspects of the evidence which proved that the appellant's mother had been materially involved in the emotional life of the appellant and had participated in the major decisions of the child's life.
7. Nowhere in the decision does the judge identify those factors which lead him to conclude that the sponsor has had active participation in the major decisions involving the appellant's life. Indeed it does not appear that the judge came to a conclusion on that requirement of the rules.
8. Further was incumbent upon the judge to identify those factors which led him to conclude that there were serious and compelling circumstances which made exclusion of the appellant undesirable. Again the judge appears to have wholly failed to deal with the evidence in respect of that element of the rules or to make a conclusion on the issue.
9. Indeed before me it was conceded that an examination of the decision by the judge disclosed that he had made errors of fact as to the circumstances of the appellant. Those circumstances related not only to the medical condition of the appellant but also as to who exactly was looking after the appellant and what their relationship was.
10. Accordingly the judge in assessing the article 8 rights of the parties had to consider first and foremost the requirements of the rules and has failed to do so. That I am satisfied is an error of law.
11. In the light of the error of law disclosed the only courses is for this matter to be heard afresh in the First-tier Tribunal. In the circumstances there is a material error of law which undermines the findings of fact made by the judge and the judge has failed to deal with the issues in the case. The case is remitted back to the First-tier Tribunal for a hearing afresh.
Notice of Decision
12. I allow the appeal to the extent that the appeal is remitted back to the First-tier Tribunal.
13. I do not make an anonymity direction

Signed
Date 12th December 2017
Deputy Upper Tribunal Judge McClure