Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/12426/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision and Reasons Promulgated
On 20 December 2016
On 03 January 2017

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
TESFABRHAN REZENE
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms Evans for Waddell Taylor Bryan Solicitors
For the Respondent: Mr C Bates Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
3. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Thorne promulgated on 28 April 2014 which dismissed the Appellant's appeal against the decision of the Respondent to refuse the Appellants application for entry clearance under paragraph 297 of the Immigration Rules as the child of Rezene Hedru..
Background

4. The Appellant was born on 16 December 1999 and is a national of Eritrea.
5. The Appellant applied for entry clearance as the son of Rezene Hedru 'the Sponsor'.
6. On 9 November 2015 the Secretary of State refused the Appellant's application. The refusal letter gave a number of reasons:
(a) There was insufficient evidence that the sponsor had sole responsibility for the Appellant.
(b) There was inadequate evidence of the whereabouts of the Appellants mother.
(c) Given that the sponsor had been in the UK since 2004 there was no explanation as to why he had waited so long before making the present application.
(d) There was no basis for a grant of leave outside the rules.

The Judge's Decision
7. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Thorne ("the Judge") dismissed the appeal against the Respondent's decision. The Judge found:
(a) He accepted that the appellant and sponsor was father and son and that the entry clearance officers decision failed to give respect to the putative family life and the possibility of it flourishing.
(b) He considered that the best interests of the child lay in maintaining the status quo and given that the Appellant had spent most of his life in Eritrea or Sudan the decision maintained status quo.
(c) He considered the proportionality of the decision against the framework of the immigration rules while acknowledging that there was no right of appeal against the refusal under the rules.
(d) He found that the sponsor did not have sole responsibility at all material times for the Appellants upbringing.
(e) He found that the sponsor had only been involved in the Appellants life since 2012 and that they had only met on a very few occasions and the majority of their interactions had been by long distance communication.
(f) He accepted that the sponsor sent money and clients and other items two the appellant spoke a lady Nome are saint using his school, no interaction with his teachers, no part in his decision to travel to Sudan or subsequently leave the refugee camp. He made no decisions about the appellants medical care either in Eritrea or Sudan.
(g) He found that there were no serious or compelling family or other considerations which a the exclusion of the appellant undesirable or that suitable arrangements have been made for his care because the appellant was living in Khartoum and with a family to care for him like their own son.
(h) There was insufficient evidence of suitable arrangements for the Appellants care in the UK in the form of evidence of available accommodation or schooling or evidence of the Sponsors present financial circumstances in order to establish his ability to maintain the Appellant. He found that the failure to meet these requirements weighed against the Appellant in favour of the public interest.
(i) He considered those public interest factors that he was required to under section 117B of the Nationality Immigration and Asylum Act 2002 noting that there was inadequate evidence that the Appellant could speak English or that he could be financially maintained by the Sponsor.
(j) He found that the Appellants best interests are met by preserving the status quo.
8. Grounds of appeal were lodged.
9. First tier Tribunal Judge Kelly gave permission to appeal.
10. At the hearing I heard submissions from Ms Evans on behalf of the Appellant that:
(a) She relied on the grounds of appeal which were detailed.
(b) The starting point was the ability of the Appellant to meet the requirements of the rules and having accepted that family life existed and would be interfered with the issue was one of proportionality.
(c) It was unfair for the Judge to make findings against the appellant in relation to accommodation maintenance as these had not been points raised by the entry clearance officer and the sponsor was not given the opportunity in the hearing to address them.
(d) The Judge's assessment of the issue of sole responsibility was flawed as he failed to consider who had responsibility if the Sponsor did not. If he found that the family in whose care he was placed in Khartoum shared responsibility he did not make finding to that effect. There were factual errors in relation to family in Khartoum two where at best very distant relatives but effectively friends who agreed to care for the Appellant in exchange for the Sponsor supporting all of them.
(e) There was evidence to the from and the sponsor that if the only reason the appellant had remained in Sudan when his friend is left was saying but the sponsor could make the necessary application for him to join him in the UK and the Judge made no finding about that at all.
(f) The Judge made adverse findings in relation to the Sponsor not making decisions about the Appellants education or health care where no such decisions were ever required.
(g) The Judges reference to the Sponsor not having sole responsibility at all material times was wrong in law.
(h) The Judge's finding that it was in the best interest of the child to live as a refugee in a refugee camp in Sudan without either of his parents was flawed.
(i) The Judge made no findings in relation to the sponsor as evidence of his concerns that his son's well-being.
11. On behalf of the Respondent Mr Bates submitted that:
(a) Although he accepted that the HOPO did not raise issues of finance or accommodation and that the Judges findings in relation to this were a procedural error.
(b) He accepted that the judge also made no findings about credibility of either the sponsor of all his wife and that this was an error.
(c) He suggested that in referring to' all material times 'the judge was not talking about the period from the Appellants birth to 2012 the but was suggesting that since 2012 the Sponsor had been unable to evidence that he had had sole responsibility for the Appellant although he conceded that there was never a suggestion that In Sudan any decisions were required in relation to education or health care .
(d) The Judge's findings at Paragraph 60 inferred that the Sponsor shared responsibility with family in Khartoum there were distant relatives.
(e) He maintained that there was no clear evidence as to the sponsor having sole responsibility for the Appellant.
(f) Given that the findings as to sole responsibility would be the starting-point of the Article 8 assessment the Judge would have to have found that there were other compelling factors not addressed by the Rules why refusal was disproportionate.
(g) He suggested that the Immigration Rules applied to children as well as to adults.
12. In reply Ms Evans on behalf of the Appellant submitted:
(a) In relation to Mr. Bates last comment none of the Immigration Rules for children required them to speak English so the absence of any evidence that the Appellant could speak English should not be held against him.
(b) In relation to the argument that he shared responsibility could be inferred in paragraphs 60 such a finding would have been an error as he had failed to address whether these were simply the people on the ground that made day-to-day decisions rather than those who shared responsibility.
Legal Framework
13. On the issue of sole responsibility I have taken into account TD (Paragraph 297(i)(e): "sole responsibility") Yemen [2006] UKAIT 00049 from which I have drawn the following guidance:

"A central part of the notion of "sole responsibility" for a child's upbringing is the UK-based parent's continuing interest and involvement in the child's life, including making or being consulted about and approving important decisions about the child's upbringing." (paragraph 13)
"the core issue in "sole responsibility", namely the idea that it is important to identify the person, if any, who alone makes significant decisions about the child's upbringing and whose obligation it is to make those decisions." (paragraph 15)
"Financial support, particularly sole financial support, of a child is relevant since it may be an indicator of obligation stemming from an exercise of "responsibility" by a parent but it cannot be conclusive. There may be other reasons why an individual financially supports a child and so it can only be a factor to be taken into account along with all the other facts."(paragraph 16)
"Where one parent has disappeared from the child's life and so relinquished or abdicated his (or her) responsibility for the child, the starting point must be that it is the remaining active parent who has "sole responsibility" for the child. The fact that the remaining active parent is in the UK makes no difference to this. Of course, the geographical separation of the parent from the child means that the day-to-day care of the child will necessarily be undertaken by others - relatives or friends abroad - who look after the child." (paragraph 49)
14. In Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 88(IAC) (Blake J) the Tribunal held that
(i) the exercise of the duty by the Entry Clearance Officer to assess an application under the Immigration Rules as to whether there are family or other considerations making the child's exclusion undesirable inevitably involves an assessment of what the child's welfare and best interests require;
(ii) Where an immigration decision engages Article 8 rights, due regard must be had to the UN Convention on the Rights of the Child. An entry clearance decision for the admission of a child under 18 is "an action concerning children...undertaken by?administrative authorities" and so by Article 3 "the best interests of the child shall be a primary consideration";
(iii) Although the statutory duty under s.55 UK Borders Act 2009 only applies to children within the UK, the broader duty doubtless explains why the Secretary of State's IDI invites Entry Clearance Officers to consider the statutory guidance issued under s.55.
The Law
15. Errors of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on facts or evaluation or giving legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
16. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue under argument. Disagreement with an Immigrations Judge's factual conclusions, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence that was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration judge concludes that the story told is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration. In Mibanga v SSHD [2005] EWCA Civ 367 Buxton LJ said this in relation to challenging such findings:

"Where, as in this case, complaint is made of the reasoning of an adjudicator in respect of a question of fact (that is to say credibility), particular care is necessary to ensure that the criticism is as to the fundamental approach of the adjudicator, and does not merely reflect a feeling on the part of the appellate tribunal that it might itself have taken a different view of the matter from that that appealed to the adjudicator."
17. In MK (duty to give reasons) Pakistan [2013] UKUT 00641 (IAC), it was held that (i) It was axiomatic that a determination disclosed clearly the reasons for a tribunal's decision. (ii) If a tribunal found oral evidence to be implausible, incredible or unreliable or a document to be worth no weight whatsoever, it was necessary to say so in the determination and for such findings to be supported by reasons. A bare statement that a witness was not believed or that a document was afforded no weight was unlikely to satisfy the requirement to give reasons.

Finding on Material Error
18. Having heard those submissions I reached the conclusion that the Tribunal made material errors of law.
19. I am satisfied that there are a number of errors both factual and legal made out in the grounds of appeal in relation to the Judges assessment under Article 8 such that the decision should be set aside to be remade.
20. I am satisfied that in his assessment under Article 8 the Judge was required to assess to what extent the Appellant met the requirements under the immigration rules given that that these were intended to promote consistency, predictability and transparency in decision-making where issues under Article 8 arose, and to to reflect the Government's and Parliament's view of how, as a matter of public policy, the balance should be struck between the right to respect for private and family life and the public interest.
21. The Judge had erred in his consideration of sole responsibility in that there was no adequate and clear assessment of who had sole responsibility for the Appellant from when he arrived in Sudan as he claimed or acknowledge that sole responsibility may be exercised over a relatively period short period of time. The Judge did not make any findings as to the credibility of the Sponsor and his wife on this issue, specifically in relation to the assertion that the appellants remain to in Sudan at the sponsors request said that an application could be made for reunion, nor did he make clear findings about who had responsibility if it was not the Sponsor.
22. I am satisfied that the Judge's assessment of the best interests of the child which must be a starting point were inadequate. The Judge has failed to give adequate reasons why, contrary to the normal starting point as set out in Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 88(IAC) (Blake J) that it is in the best interest of a child to be brought up by one or both of its parents, in this case the Judge found it was in the child's best interest to continue to live in a country other than that of his nationality in a refugee camp with a family who were at best very distant relatives.
23. The judge's assessment of proportionality was flawed in that he took into account and a number of factors that either should not have been taken into account( he could not speak English) or that had not previously been taken against him and he was not alerted that this was a matter that the Judge was considering (maintenance and accommodation) This was, I am satisfied a proecural unfairness.
24. The Judge made a factual error in relation to the Appellants circumstances in Khartoum in that the reference to him being ''cared for like their own child' referred to the Appellants grandparents when they had cared for him in Eritrea. The evidence was that in Khartoum the Appellant was in the temporary care of a family and there had been no cross-examination in the hearing as to the quality and that care either from the HOPO or from the Judge.
25. These are errors I consider to be material since had the Tribunal conducted this exercise the outcome could have been different. That in my view is the correct test to apply.

26. I therefore found that errors of law have been established and that the Judge's determination cannot stand and must be set aside in its entirety. All matters to be redetermined afresh.
27. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25th of September 2012 the case may be remitted to the First Tier Tribunal if the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
28. In this case I have determined that the case should be remitted as I have found there was an error of law because the Appellant did not have a fair hearing due to procedural unfairness and failure to make findings in relation to the evidence of the two witnesses who gave evidence. In this case none of the findings of fact are to stand and the matter will be a complete re hearing.
DECISION
29. I set the decision aside having found errors of law.
30. I remit the matter back to the First-tier Tribunal sitting at Manchester to be heard on a date to be fixed before me.
31. I made the following directions for the resumed hearing
2 hours
Tigrinyan interpreter.

Signed Date 2.1.2017
Deputy Upper Tribunal Judge Birrell