Tribunal decisions

The decision

IAC-AH-CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00709/2015

THE IMMIGRATION ACTS

Heard at Belfast
Decision & Reasons Promulgated
On 9 November 2016
On 15 December 2016

Before

UPPER TRIBUNAL JUDGE RINTOUL
Between

miss Beverley Hlophe
(ANONYMITY DIRECTIONn NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S McTaggart, Counsel
For the Respondent: Mr S Whitwell, Presenting Officer

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge S T Fox promulgated on 19 May 2016, dismissing her appeal against the decision of the respondent made on 15 December 2014 to refuse to issue her with a Derivative Residence Card as the primary carer of a British citizen resident in the United Kingdom, pursuant to the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations").
2. The appellant is a citizen of Zimbabwe who has been resident in the United Kingdom since 2003. She has a son who is a British citizen as his father, WP, is a British citizen. The couple were in a relationship which broke down after the birth of the child. It is the appellant's case that she is the primary carer of the child; that the child's father has had no contact with him since 2013; and that in consequence, as he is either unable or unwilling to look after the child, the child will be compelled to leave the United Kingdom were she removed.
3. The respondent's case as set out in the refusal letter dated 15 December 2014 is that as the child's father is a British citizen, he equally shares responsibility for the son's care and that he had not shown, absent proof that the father was no longer living in the United Kingdom, that he could not assume the care responsibility for the child were the appellant forced to leave the United Kingdom as accordingly, she did not meet the requirements of Regulation 15(4A) (c) of the EEA Regulations.
4. On appeal the judge concluded [11] that he was to determine whether the child would be "unable to leave the United Kingdom". That he was not satisfied that she had no contact with the child's father given [13] to [17] inconsistencies in the evidence as to when the relationship between the appellant and her partner had ceased. He noted also that it would appear that the appellant's former partner had been considerably involved with the process of obtaining a passport and had been the informant on the birth certificate [17] also, that there were no indications of attempts to seek maintenance from him either through the courts or the Child Support Agency [18] to [20].
5. The judge then went on to consider the consequences of removal directing himself in accordance with regards to Sections 117A to 117D of the Nationality, Immigration and Asylum Act 2002.
6. The appellant sought permission to appeal on the grounds that:-
(i) The judge had misdirected himself at paragraph [11] in asking the wrong question;
(ii) had erred in making a series of factual errors undermining the factual findings such that it was unsafe in particular failing to appreciate the proper chronology of events and when the relationship had ceased as set out in the appellant's statement [6] to [7] and thus the apparent inconsistencies were not justified by the evidence;
(iii) that the judge appeared not in his findings to have taken into account the appellant's witness statement properly or her evidence and appears, contrary to the Home Office policy, that the appellant had an obligation to trace the father for her child [13]; that there was no justification for the finding that she had come to Northern Ireland with a view to make it more difficult to trace her former partner but again misdirecting himself as to the proper test [15];
(iv) again say the appellant's contention that there had been no contact with the child's father for considerably more than twelve months; the respondent failing properly to undertake obligatory investigations as set out in her guidance [18]; and
(v) the judge had at [29] to [31] improperly referred to Article 8 balancing matters which were wholly inappropriate and Derivative Residence Card application.
The Law
7. Regulation 15A(4A) of the European Economic Area Regulations provides:
(4A) P satisfies the criteria in this paragraph if -
(a) P is the primary carer of a British citizen ("the relevant British citizen");
(b) the relevant British citizen is residing in the United Kingdom; and
(c) the relevant British citizen would be unable to reside in the UK or in another EEA State if P were required to leave.
8. I am satisfied that the judge did approach the case on an incorrect basis. The question he should have asked is whether the child would be compelled to leave the United Kingdom, notwithstanding that he had a British citizen father on account were the appellant to be removed. He also erred in stating at [12] that it was for the appellant to show that she was the sole carer. This again is a failure properly to apply the relevant Regulation.
9. Mr Whitwell submitted that, notwithstanding these apparent errors, the judge had properly reached conclusions open to him with respect to credibility and that, as the onus had been on the appellant to show that the child would be compelled to leave the United Kingdom, a question involving an assessment of whether the father was able to care for the child, he had concluded that she had not shown that the father was unable to support the child. He submitted that in this context the credibility findings were sustainable and were properly open to the judge on the material before him.
10. I am however not satisfied that the judge's conclusions with regard to credibility are sustainable. It is sufficiently clear from the appellant's witness statement at paragraphs [6] and [7] that the relationship broke down whilst the couple were living in Essex not long after the birth of the child. The judge does not appear to have appreciated the chronology of events and therefore erred at [14]. There is no reason why the GP would have known the full circumstances of this and I note that the letter in question does refer to a previous partner and loss of her financial support. This is consistent with the account given of the father walking out not long after the birth but of course after the birth had been registered.
11. The appellant explains how she was able to contact him after this in order for the child to get a passport. There is no indication in the witness statement or otherwise there was any attempt at reconciliation. I considered further with the finding at [17] that there would have been considerable input from the child's father in making a passport application is unwarranted and unsupported by any evidence. The observation that the paperwork would inextricably link him to the child and the child's mother is irrelevant given that there is no indication the relationship broke down before the child was registered.
12. In the circumstances, I am satisfied that the judge's assessment of a lack of credibility on the part of the appellant was reliant to a significant degree on a mistake of fact as to when the relationship broke down and the finding of inconsistencies in the evidence when there were none. I am therefore satisfied that the findings of fact are therefore unsustainable.
13. On that basis alone, I considered the decision must be set aside. I note, however, that there is no indication why the judge speculated about what steps could have been taken to trace the child's father nor whether in fact these were matters put to her in part of the hearing.
14. I also note in passing that the judge erred in considering Section 117A to D of the 2002 Act which infected his approach to the situation of the child; the judge also appears confused at [5] as to whether this was a paper hearing or whether it was an oral hearing.
15. Given that there will need to be fresh findings of fact with regard to the credibility and the circumstances of the appellant's former partner, indeed as to his whereabouts and suitability to care for the child, it is appropriate to remit this matter to the First-tier Tribunal for a fresh determination on all issues. The First-tier Tribunal which hears this appellant would, I consider, be greatly assisted if the parties were to furnish it, well in advance of the hearing, with copies of the relevant policies in place both at the date of decision and subsequently as referred to in the grounds of appeal to the Upper Tribunal.

SUMMARY OF CONCLUSIONS
1. The decision of the First-tier Tribunal involved the making of an error of law, and I set it aside.
2. I remit the appeal to the First-tier Tribunal for it to be remade on all issues. For the avoidance of doubt, none of the findings of Judge Fox are preserved

Signed Date: 13 December 2016

Upper Tribunal Judge Rintoul