Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/02446/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 October 2016
On 28 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

FANNY [V]
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss L. Appiah, Counsel, instructed by M.J. Solomon & Partners
For the Respondent: Mr. S. Kotas, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Devittie, promulgated on 18 March 2016, in which he dismissed the Appellant's appeal against the Respondent's decision to refuse to grant further leave to remain.

2. Permission to appeal was granted as follows:

"At paragraph 11 of the decision the Judge accepted that the Appellant had established private life in the United Kingdom and that her removal would interfere with that life. The Judge has not set out the criteria in Razgar. The Judge has not applied Section 117. The Judge has dismissed the appeal on human rights grounds.

It is arguable that the Judge should have applied these criteria in reaching his conclusion in this respect. It is arguable that an insufficient analysis has been set forward in relation to the proportionality exercise. It is arguable that the matter referred to in paragraph 1 of the permission application should have been taken into account in any such exercise in addition to other relevant factors."

3. The Appellant attended the hearing. I heard submissions from both representatives following which I reserved my decision.

Submissions

4. Miss Appiah relied on the grounds of appeal, and submitted that grounds 1 and 2 should be taken together. She referred me to paragraph 3 of the Appellant's statement before the First-tier Tribunal (pages 1 to 3), which referred to the 2010 application, and paragraphs 5 to 7 which related to the Appellant's ties in the United Kingdom. She submitted that she was not sure whether the ancestry right should have been considered separately but that, in any event, whether the Appellant's grandfather had been a British national was relevant to the question of her ties to the United Kingdom.

5. In response Mr. Kotas referred to the Rule 24 response. He submitted that there was little merit in the grounds. The issue of legacy had been dealt with at length by the judge. In relation to ancestry, it was the quality of any relationship that mattered and it was not material that no finding had been made as to the Appellant's ancestry. He submitted that the relationship did not go beyond normal emotional ties.

6. In response Miss Appiah submitted that there was a clear material error of law. I was referred to the evidence from page 36 onwards of the Appellant's bundle.

Error of law

7. The issue of the legacy is dealt with from paragraphs 4 to 9 of the decision, although much of this consists of setting out the case of H (Iran) [2014] EWCA Civ 1469. The judge finds in paragraph 9 that the issue of legacy takes the Appellant's case no further. The decision states:

"In the final analysis the position in this case is that the appellant's claim to be entitled to leave to remain has been fully considered by the respondent and found to be lacking in merit. It seems plain to me therefore that the argument in relation to Legacy Claims that has been raised in this case is without merit."

8. The judge then goes on to consider the Appellant's Article 8 claim and does so in three paragraphs, 10, 11 and a second paragraph 11. There is a reference to the fact that no evidence has been provided to show that the Appellant's grandfather was born in the United Kingdom, but this is where the consideration of her grandfather ends. There is a reference to her British ancestry having been raised in her witness statement in paragraph 3(i), but there is no further analysis of this point. I find that the relevance of this is limited given that it is the quality of any relationship which is important, however I find that there is insufficient analysis of the Appellant's relationships with any relatives in the United Kingdom in the judge's analysis of Article 8.

9. In the first paragraph 11 the judge states that he does not accept that the Appellant's relationships with her adult relatives and godchildren engage Article 8 in relation to family life. He refers to the fact that the relationships are close, but there is no analysis of these relationships, or of the bonds which do exist. There is no reference to the degree of relationship, whether they are e.g. siblings, aunts, uncles or cousins. There is a reference to the evidence not showing that her "family ties in the UK go beyond normal family ties", but there is no reference to what this evidence is, nor are any reasons given for this finding. Given the extent of the evidence submitted to the First-tier Tribunal, page 36 of the bundle onwards, I find that the judge has failed to give reasons for why he has rejected this evidence.

10. Further, even if these bonds were not sufficient to engage Article 8 in relation to family life, the extent to which the Appellant has formed any ties is relevant to the issue of her private life, and there is no reference to the extent to which these close relationships form part of her private life.

11. Further, in relation to consideration of the Appellant's case under the immigration rules, there is just a statement in paragraph 10 that it is clear that she does not meet the requirements of leave to remain under the immigration rules. There are no reasons given, and no reference to the relevant rule, either Appendix FM or paragraph 276ADE(1). The extent to which an appellant meets the requirements of the immigration rules is relevant to any consideration of Article 8 outside the rules. The only consideration of her ties to Ghana, and the circumstances there, is one sentence in the second paragraph 11. I find that this is insufficient.

12. I find that the Article 8 analysis set out in paragraphs 10, 11 and 11 is inadequate. I find that the failure properly to consider the Appellant's case under the immigration rules, given the relevance of this to an assessment of proportionality outside the immigration rules, together with the failure to make clear and reasoned findings regarding the Appellant's relationships in the United Kingdom, and the failure to consider section 117B at all in the proportionality assessment, amounts to a material error of law.

13. I have taken account of the Practice Statement dated 10 February 2010, paragraph 7.2. This contemplates that an appeal may be remitted to the First-tier Tribunal where the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for the party's case to be put to and considered by the First-tier Tribunal. Given the nature and extent of the fact-finding necessary to enable this appeal to be remade, and having regard to the overriding objective, I find that it is appropriate to remit this case to the First-tier Tribunal.

Decision

14. The decision involves the making of a material error of law and I set the decision aside.

15. The appeal is remitted to the First-tier Tribunal for rehearing.

16. No anonymity direction is made.

Signed Date 27 October 2016

Deputy Upper Tribunal Judge Chamberlain