Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/23783/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On January 18, 2018
On January 22, 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

[D A]
(NO ANONYMITY DIRECTION made)
Appellant

and

THE ENTRY CLEARANCE OFFICER

Respondent

Representation:

For the Appellant: Not represented
For the Respondent: Ms Pal, Senior Home Office Presenting Officer

DECISION AND REASONS
1. I do not make an anonymity direction.
2. The appellant is a Nigeria national. The appellant applied on June 14, 2016 for entry clearance as the daughter of the sponsor, [JB]. The respondent refused her application on September 21, 2016 as she was not satisfied the appellant satisfied the requirements of paragraph 297 HC 395.
3. The appellant lodged grounds of appeal on October 18, 2016 under Section 82(1) of the Nationality, Immigration and Asylum Act 2002. The entry clearance manager reviewed the grounds of appeal on January 16, 2017 but upheld the original decision. Her appeal came before Judge of the First-tier Tribunal Housego (hereinafter called "the Judge") on September 28, 2017 and in a decision promulgated on October 11, 2017 the Judge refused her appeal on human rights grounds.
4. The appellant appealed the decision on November 7, 2017. Permission to appeal was granted by Judge of the First-tier Tribunal Boyes on November 17, 2017. In giving permission Judge of the First-tier Tribunal Boyes found the Judge may have erred by failing to deal with all the evidence that had been submitted.
5. The matter came before me on the above date. Notice of the hearing had been sent out in accordance with the Rules and to the parties and addresses advised by the parties. In this case the address for service for the appellant and sponsor was the solicitors' address. On January 17, 2018 the solicitors sent in a bundle containing all papers from the previous hearing. Neither the sponsor nor the representative had attended at 11.10 when I called the case on. The clerk contacted the solicitors who advised they were no longer acting as they had a lack of instructions.
6. Under Rule 36 of the Tribunal Procedure (Upper Tribunal) Rules 2008 the Upper Tribunal must give each party entitled to attend a hearing reasonable notice of the time and place of the hearing. This had clearly been done as notice had been sent to all interested parties. Rule 13(5) of the 2008 Rules states-
"The Upper Tribunal and each party may assume that the address provided by a party or its representative is and remains the address to which documents should be sent or delivered until receiving written notification to the contrary."
7. In the absence of any written notice from the parties to the contrary I was satisfied the appellant and sponsor had been notified of the hearing and having taken oral submissions from Ms Pal I reserved my decision.
SUBMISSIONS
8. The written grounds of appeal challenged the Judge's decision on the following grounds:
(a) The Judge failed to properly engage with paragraphs 297(i) or (iii) HC 395 and had made inadequate findings of fact as to what the appellant's circumstances were and had overlooked the mother's statement.
(b) The Judge failed to give consideration to section 55 of the Borders, Citizenship and Immigration Act 2009.
9. Ms Pal submitted there was no error in law. The decision was detailed and the Judge had set out in some detail the law and Rules. The Judge considered the evidence both of the sponsor and the appellant together with the statements from other witnesses. The Judge made clear findings that led him to conclude that the appellant had failed to demonstrate her mother had sole responsibility. Having rejected that claim the Judge concluded that family life for the purposes of article 8 was not engaged. She invited me to uphold the decision.
FINDINGS ON THE ERROR IN LAW
10. The appellant was seventeen years of age when her appeal came before the Tribunal. She had applied to enter the United Kingdom under paragraph 297 HC 395. In particular, she argued that her application should have been granted on the basis her mother had demonstrated she had sole responsibility of her.
11. The grounds of appeal highlighted the Judge's approach to subsections (i) and (iii) HC 395 but in truth subsection (iii) would only be of relevance if the appellant demonstrated compliance with subsection (i).
12. The grounds argued the Judge failed to make adequate findings of fact about the appellant's circumstances and had overlooked the mother's statement.
13. The Judge's decision perhaps unnecessarily contains almost thirteen pages of law and Rules and it is not until page 17 of the decision that the Judge considers the evidence. However, between paragraphs [29] and [35] the Judge set out the appellant's claim. Whilst the grounds argued the Judge made no reference to the evidence I am satisfied that anyone reading those paragraphs would have been left in no doubt what was being argued. The Judge made reference to both the appellant's mother and step-father being cross-examined and to having regard to the witness statements that were contained in the bundle. Thereafter the Judge recorded, again in sixteen separate paragraphs, the submissions of both advocates.
14. From [43] onwards the Judge made findings. The Judge concluded the appellant's mother came to this country as a visitor and chose to overstay from 2007 onwards rather than returning to her family in Nigeria. She left the appellant in the sole control of her brother and the Judge concluded, with reasons, that the brother had sole responsibility for her until two years ago. The Judge noted the sponsor sent money but rejected her claim that money was for the appellant exclusively. The Judge commented that the appellant's elder sibling was also now looking after her and the appellant's mother sent the money to this daughter. The Judge considered the evidence about the appellant's schooling and concluded the sister controlled that and the level of contact between the appellant and sponsor was minimal.
15. Whilst permission to appeal was given I am satisfied the Judge did have regard to all the evidence. The findings made were open to the Judge. Between [50] and [63] the Judge gave reasons for rejecting the appellant's claim her mother was solely responsible for her. The Judge rejected other aspects of the claim and gave reasons for those conclusions. Importantly, the Judge found there was no supporting evidence of telephone contact between the appellant and sponsor and the sponsor and the school. At [59] the Judge made the damning conclusion that at no time had the appellant's mother had sole responsibility for her daughter and that it was the appellant's uncle who brought her up.
16. The Judge was entitled to reject the appellant's claim that she met the Immigration Rules. Having made that finding the Judge considered the position on human rights grounds. From [67] onwards the Judge considered proportionality and noted his obligations under section 55 of the 2009 Act. For the reasons spelt out in [69] the Judge concluded refusing the application would not breach section 55.
17. I am satisfied there is no error in law in the decision.
DECISION
18. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law. I uphold the decision.

Signed Date 02/01/2018

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT the appellant
FEE AWARD

No fee award was made in the First-tier Tribunal.

Signed Date 02/01/2018

Deputy Upper Tribunal Judge Alis