Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/17114/2018
HU/17116/2018
HU/17117/2018 (‘V’)
THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
And via Teams

On 2nd December 2021
On 24th January 2022
Before

UPPER TRIBUNAL JUDGE KEITH
DEPUTY UPPER TRIBUNAL JUDGE CHANA

Between

‘KJ’
‘AJ’
‘SJ’

(ANONYMITY DIRECTION CONTINUED)
Appellants
and

The ENTRY CLEARANCE OFFICER (Pretoria)
Respondent
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. Failure to comply with this direction could lead to contempt of court proceedings.

Representation:

For the Appellant: ‘MJ’ (a relative of the appellants)
For the Respondent: Mr T Lindsay, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is the remaking of the decision in the appellants’ appeals against the respondent’s refusal of their applications for entry clearance, based on their human rights. Our decision follows the error-of-law decision, which is annexed to these reasons.
2. These are the approved record of the decision and reasons which we gave orally at the end of the hearing on 2nd December 2021.
3. Both representatives attended the hearing via Teams, while the panel attended from Field House, which was accessible to members of the public. There was no objection to attending via Teams and we were satisfied that the representatives were able to participate effectively in the hearing.
4. By way of a preliminary matter, on the afternoon before this hearing, the appellants’ legal representative applied to adjourn the hearing because of COVID. We sought further details from him (in particular, whether he was too unwell to participate in the hearing remotely), at which point he withdrew the adjournment application. This morning, we received confirmation from the legal representative that he was no longer acting, and instead, the appellants would be represented by their sponsoring relative, MJ. We checked with MJ at the beginning of the hearing whether he was content for us to proceed today. He indicated that he was. He wished to refer to the bundle that was before the First-tier Tribunal (‘FtT’) which Mr Lindsay did not have, but Mr Lindsay said that he was in the hands of this Tribunal as to whether we wished to proceed. While Mr Lindsay did not have the appellants’ bundle, we only referred to a small number of documents in it and he was content for the relevant parts to be summarised. Despite not being legally represented, we were satisfied that MJ was able to participate effectively in the hearing, during which he also gave witness evidence, on which he was cross-examined. We checked his understanding at various stages and he was able to give detailed answers to Mr Lindsay’s and our questions. We were satisfied that a fair hearing was possible and that it was in accordance with the overriding objective to proceed.
The issues
5. We turn then to the substance of the issues. The appellants’ applications for entry clearance were refused. They argued that the refusal was under an erroneous provision of the Immigration Rules, namely paragraph 319X, i.e. family reunion with relatives in the UK who had limited leave to remain as refugees, as opposed to paragraph 297(i)(f), as set out in the error-of-law decision annexed to these reasons. Nevertheless, as Mr Lindsay has submitted, other than the immigration status of the sponsoring relative, the test is substantively the same, namely there is a relevant sponsoring relative and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care and the appellants can and will be accommodated adequately by the relative without recourse to public funds in accommodation which the sponsor occupies exclusively. We considered the well-known authority of Mundeba (Section 55 and paragraph 297(i)(f)) Democratic Republic of Congo [2013] UKUT 88 (IAC). We needed to assess what the appellants’ welfare and best interests require, including their emotional needs. Other considerations may come into play where there are other circumstances of the appellants’ lives that may be serious and compelling, for example where they are living in an unacceptable social and economic environment. We needed to consider the children’ background and history and any evidence of neglect or abuse or whether there are needs that should be catered for; and there are stable arrangements for the appellants’ physical care. All involve consideration as to whether the combination of circumstances are sufficiently serious and compelling to require admission. While this is an appeal by reference to the appellants’ human rights, we may begin by an analysis through the lens of the Immigration Rules. Clearly if the appellants met the Immigration Rules, that would be a weighty, if not determinative factor. If they did not, we nevertheless may consider the appeal by reference to wider article 8 ECHR considerations. The burden of showing facts relevant to paragraph 297 remains on the appellants, to the ordinary civil standard.
Evidence and findings
6. We considered the witness evidence not only of MJ, but also in relation to his sibling, who also has a first name similar to MJ, but spelled differently. (Only MJ attended and gave witness evidence in person). While MJ asserts that both he and his brother are co-sponsors, in fact, the application for entry clearance only names MJ, at box 62. The identity of the sponsor was potentially relevant when only one sponsoring sibling had indefinite leave to remain, while the other had only limited leave. However, where, as here, we were not satisfied that the other elements of Paragraph 297 were met, it ultimately made no difference to our conclusions.
7. The first issue on which we heard evidence and made findings was the nature of the relationship between MJ, his sibling, and the appellants. While MJ continued to assert that the appellants had a common father, to whom he was related, but different mothers, in correspondence from the appellants’ own legal representatives dated 24th May 2018, starting at page [13] of the Appellants’ Bundle (‘AB’), they accepted that the appellants did not have common parentage. This was further corroborated by a DNA test of Cellmark 9th May 2018, at pages [35] to [36] AB, in relation to the consanguinity between MJ’s brother and the appellants. The report indicated at page [36] that MJ’s brother and SJ were related, but that there was only weak evidence of consanguinity between MJ’s brother and KJ; and no evidence to support consanguinity between MJ’s brother and AJ.
8. We accept Mr Lindsay’s submission that the evidence of consanguinity is at best confusing, and fundamentally undermines the claimed consanguinity between MJ, his brother and two of the appellants. That is important, but not determinative for the purposes of whether MJ or his brother are ‘relatives’ of the appellants (noting one positive DNA result, albeit in relation to MJ’s brother) for the purposes of 297(i)(f) and the existence of family life for the purposes of Article 8. It also undermines MJ’s credibility, who continued to reiterate the claimed consanguinity despite DNA evidence from the appellants’ own former lawyers to the contrary.
9. The second issue, noting that this is a human rights appeal but one we may consider initially through the lens of Paragraph 297(i)(f), was whether there were or are relevant circumstances rendering the exclusion of the appellants from the UK undesirable. MJ described the appellants as living in a UN displaced persons camp in Uganda. They had previously been under the care of a lady whom, it was claimed, had since moved to Nairobi in Kenya, because of a family illness. MJ described the conditions in the camp as dire. The appellants had to walk 16km each day to get water. There was no security with the result that the children were robbed of their provisions regularly. While the eldest appellant was now an adult, aged 19, she could not work as she needed to look after the two younger appellants.
10. However, when the circumstances were explored further, MJ suggested that the appellants did not in fact live in the displacement camp, which is why they had to travel 16km to the UN facilities for water and provisions. He paid the rent for a plot of land and had bought them a shelter. He had previously visited them in Uganda.
11. In reaching our findings about the circumstances of the appellants’ living conditions and other circumstances, we accept Mr Lindsay’s criticism that these circumstances are far from clear, and the evidence of MJ is not reliable. As Mr Lindsay points out, the claimed conditions of the UN camp are not documented in any press or other reports (which might be expected) and MJ was not even consistent on whether they lived in a displacement camp, or as appeared to be the case, privately rented accommodation. We further accept Mr Lindsay’s submission that where, as here, the consanguinity of the appellants is far from clear, we cannot, with any reliability, find that the appellants are without either or both of their parents, to provide them with care in Uganda. This is relevant as it was argued that regardless of the precise relations between MJ, his brother and the appellants, family unification was proportionate and in their best interests for the purposes of section 55 of the Borders, Citizenship and Immigration Act 2009.
12. In summary, we are not satisfied that the appellants have provided reliable evidence as to their circumstances which would make their exclusion from the UK undesirable, for the purpose of Paragraph 297(i)(f).
13. Even had we concluded differently in relation to the circumstances in Uganda, there was the final issue of the availability of suitable accommodation in the UK, without recourse to public funds. As with other aspects of the appeal, we are not satisfied that there is reliable evidence of the availability of such accommodation. MJ referred to his brother having suitable accommodation. However, the correspondence in the appellant’s bundle at pages [51] to [52] AB refers to MJ, not his brother, living in a rented two-bedroom property with his wife and child. MJ was unable to explain how the accommodation would be suitable to house an additional three people, two of whom were minors, or how he would support them without recourse to public funds. MJ was unable to give precise figures for his income, saying that the limited company he owned had annual turnover of between £60,000 to 70,000 and net profit of between £22,000 and £30,000. While we considered his bank statement which showed payments from the delivery company, DPD, at pages [22] to [26] AB, for example, of £4,194.28, on 15th March 2019, the practical difficulty is that while on MJ’s case he owns an incorporated, limited company, he has not provided any management or statutory accounts or annual returns. Even if we accept his claimed net income as reliable (and for the avoidance of doubt, we do not, given the clear gap in documentary evidence), we accept Mr Lindsay’s criticism that any suggestion that MJ could support his own family and the three appellants (so six people in total) on an income of between £22,000 to £30,000, without recourse to public funds, is not reliable. We are also not clear that the existing accommodation (a two-bedroom property) would be suitable for six people.
14. In the circumstances, and considering initially Article 8 through the lens of Paragraph 297(i)(f), we are satisfied that the appellants do not meet those requirements. The nature of the relations as “relatives” is far from clear. Even if we had concluded differently, the appellants have not produced reliable evidence about their circumstances in Uganda, including whether they have a parent or parents to care for them in Uganda; where they live; their living arrangements and needs, and whether those needs are already met. We are also not satisfied that there are in place suitable arrangements for their accommodation in the UK, such that it is in their best interests to be admitted to this country.
15. On a wider Article 8 analysis, even if we take the appellants’ case at their highest that some form of family life exists, we do not regard family unification in the UK as being in their best interests or proportionate, where their circumstances in Uganda are so unclear and there is plainly insufficient evidence as to appropriate arrangements having been made for them to live in the UK.
16. In the circumstances, we regard the respondent’s refusal as not only proportionate but ultimately in the appellants’ best interests and therefore, without hesitation, we refuse the appellants’ appeals.
17. On the facts established in this appeal, there are no grounds for believing that the respondent’s decision to refuse the appellants’ entry clearance would result in a breach of their rights under Article 8 of the ECHR.

Decision
18. The appellants’ appeals on human rights grounds are dismissed.

Signed: J Keith

Upper Tribunal Judge Keith

Dated: 5th January 2022

TO THE RESPONDENT
FEE AWARD

The appeal has failed and so there can be no fee award.

Signed: J Keith

Upper Tribunal Judge Keith

Dated: 5th January 2022

ANNEX: ERROR OF LAW DECISION

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/17114/2018 (P)
HU/17116/2018
HU/17117/2018
THE IMMIGRATION ACTS

Decided under Rule 34
without a hearing on
21 May 2020
Decision & Reasons Promulgated on
Before

UPPER TRIBUNAL JUDGE KEITH
Between

‘KJ’
‘AJ’
‘SJ’

(ANONYMITY DIRECTION MADE)
Appellants
and

The ENTRY CLEARANCE OFFICER (Pretoria)
Respondent
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
By virtue of the appellants being children, unless and until a Tribunal or court directs otherwise, they are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION AND REASONS

Introduction
1. This is an appeal by the appellants against the decision of First-tier Tribunal Judge Handley (the ‘FtT’), promulgated on 7th June 2019, by which he dismissed their appeals against the respondent’s refusal of their applications for entry clearance as the minor half-siblings of adult relatives in the UK.
2. In essence, the respondent regarded the appellants’ claims as involving whether they met the requirements of paragraph 319X of the Immigration Rules, namely for family reunion with relatives in the UK who had limited leave to remain as refugees. There needed to be serious and compelling family or other circumstances which made the appellants’ exclusions from the UK undesirable. The claims also involved consideration, more widely, under article 8 of the European Convention on Human Rights (‘ECHR’).
The FtT’s decision
3. The appellants’ notice of appeal asserted that the respondent had considered and applied the wrong provision of the Immigration Rules and that instead, the applications should have been considered under paragraph 297, namely for indefinite leave to enter, where their relatives had settled leave in the UK, as opposed to limited leave. The FtT concluded that the application form had been clear as to the terms of the appellants’ application and that the respondent was therefore entitled to treat the applications as being under 319X. The FtT concluded that it was open to the appellants to reapply under paragraph 297 and that there needed to be a further detailed consideration of the appellants’ eligibility under that provision, so it could not be said that they met the requirements of paragraph 297.
4. The FtT rejected the appellants’ appeals on all grounds.
The grounds of appeal and grant of permission
5. The appellants lodged grounds of appeal which are essentially as follows: the FtT had erred in failing to consider whether, if paragraph 297 of the Immigration Rules were satisfied, it would be determinative of the proportionality of the respondent’s decision to refuse entry clearance. The FtT had erred in finding that article 8 of the ECHR was not engaged.
6. First-tier Tribunal Judge Adio stated in the reasons for his permission decision that the first ground, namely by reference to paragraph 297 of the Immigration Rules, was ‘not made out’, but the second ground, namely a failure by the FtT to consider wider article 8 issues, showed an arguable error of law. However, notably in the permission decision, as opposed to the reasons, permission was granted without any restriction on its scope. On renewal of the permission application before Upper Tribunal Judge Stephen Smith, he confirmed that permission was granted in respect of article 8, but not in respect of the issue concerning paragraph 297.

Directions in the light of Covid-19
7. Vice President Ockelton issued directions on 19 March 2020, indicating that on his provisional view, the questions of whether the FtT had erred in law and whether his decision should be set aside could be resolved without a hearing. The parties were directed to provide further submissions and where, despite the provisional view expressed, they regarded a hearing as necessary, they were required to submit reasons for that view not later than 23 April 2020.
8. Both parties provided representations regarding the substance of the appeal. On the issue of whether the FtT had erred in law and his decision should be set aside on a review of the papers, without a hearing, the appellants’ representative stated that the Upper Tribunal was invited to find a material error, but if the Tribunal had any further concerns, the appellants ought to be given an opportunity to answer those prior to any final decision on any error of law. In essence, the appellants’ position was to invite a decision on error of law on the papers if it were to decide in their favour, but to reserve their position in the event that it might not. The respondent did not express a view.
9. I have considered the matter afresh and endorse the Vice President’s provisional view that determination of the error of law and whether the FtT’s decision should be set aside can be resolved without a hearing. The reason for this is that the scope of the issues is narrow, limited to whether the FtT’s analysis of the appellant’s right to respect for family lives was adequate. Both parties have provided further submissions, including a concession by the respondent on an error of law which I record below. There are no submissions which could only be made at a hearing, which had not been addressed in the appeal and rule 24 response. I therefore conclude that it is in accordance with the overriding objective that I reach a decision on the error of law and whether the FtT’s decision should be set aside, on the papers.
The appellants’ submissions
10. In written submissions, the appellants reiterated that consideration of their family life had not been analysed adequately. The appellants had no living parents, or other family members apart from the UK sponsors, who financially supported the appellants and with whom they were in daily contact.
The respondent’s submissions
11. The respondent noted that Judge Adio’s permission decision did not state that permission had been granted on limited the grounds and following the authority of Safi and others (permission to appeal decisions) [2018] UKUT 00388 (IAC) this Tribunal should treat the grant of permission as applying to both grounds of appeal. Nevertheless in respect of the first ground that the FtT should have considered paragraph 297 instead of paragraph 319X of the Immigration Rules, the relevant wording was in fact identical and therefore no error arose from the respondent not considering the applications under paragraph 297. However, in respect of the second ground, the respondent conceded as follows:
“16. This ground argues that the FTTJ erred at [21] in finding that ECHR article 8 was not engaged.
17. In respect of article 8 outside the rules, the respondent accepts that the FTTJ erred materially at[21] in failing to consider - for each of the appellants - what their best interests were, whether they were related to the UK sponsors, whether there was family life between them and – if so - whether interference in the family life by the refusal of entry clearance was proportionate.”
Discussion and conclusions
12. In light of the respondent’s concession, which in my view was properly made, in the absence of any analysis of article 8, I conclude that the FtT’s decision does indeed contain an error of law such that the FtT’s decisions is not safe and cannot stand. The respondent was also, in my view, correct to identify that Judge Adio’s permission decision, as opposed to the reasons accompanying the decision, did not restrict the grant of permission, so that I may consider both grounds.
13. I also conclude that the FtT erred in refusing to consider the appellants’ article 8 claims through the lens of paragraph 297. The issue of paragraph 297 had been referred to in the notice of appeal, and the application for entry clearance had referred to the UK sponsor having indefinite leave to remain prior to the application (see box 74 of the entry clearance application and the covering letter at page [15] of the appellant’s main bundle). The respondent’s decision not to treat the application as one of indefinite leave to enter under paragraph 297(i)(f) is therefore not a ‘new matter’, and the FtT erred in law in failing to consider the appellants’ human rights appeals by reference to that provision. The FtT therefore erred on both grounds.
Decision on error of law
14. I conclude that the FtT’s decision did contain errors of law, such that it is unsafe and cannot stand. I therefore set the FtT’s decision aside, without any preserved findings of fact.
Disposal
15. With reference to paragraph 7.2 of the Senior President’s Practice Statement, given the limited scope of the issues remaining to be determined and limited fact-finding necessary relating to the appellants’ asserted family lives and their application for entry clearance, with the availability of relevant evidence, this is a case where it is appropriate that the Upper Tribunal remakes the FtT’s decision which has been set aside.
Directions
16. The directions below shall apply to the future conduct of this appeal.
17. The Upper Tribunal is provisionally of the view that the remaking hearing in this appeal can and should be held remotely, by Skype for Business, on a date to be fixed.
18. No later than 7 days after these directions are sent by the Upper Tribunal (the date of sending is on the covering letter or covering email):
(a) the parties shall file and serve by email any objection to the hearing being a remote hearing at all/by the proposed means; in either case giving reasons; and
(b) without prejudice to the Tribunal’s consideration of any such objections, the parties shall also file and serve Skype contact details and a contact telephone number for any person who wishes to attend the hearing remotely, which might include the advocates, the original appellant or an instructing solicitor.
19. If there is an objection to a remote hearing, the Upper Tribunal will consider the submissions and will make any further directions considered necessary. If there is no objection, the remaking hearing will be listed accordingly.
20. Anonymity directions shall continue to apply.
Notice of Decision
The decision of the First-tier Tribunal contains errors of law and I set it aside. The remaking of the decision will be retained by the Upper Tribunal.
Signed J Keith Date: 21 May 2020
Upper Tribunal Judge Keith