IA/04032/2015

• Status of case: Unreported
• Hearing date: 13 Jun 2016
• Promulgation date: 15 Jun 2016
• Publication date: 11 Jul 2017
• Last updated on: 11 Jul 2017

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/04032/2015

THE IMMIGRATION ACTS


Heard at Field House

Decision and Reasons Promulgated
On 13th June 2016
On 15th June 2016




Before

Upper Tribunal Judge Rimington
(Immigration and Asylum Chamber)

Between

Mr Jay-Ar Ilasin
(No Anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent
Representation:

For the Appellant: Mr D Coleman instructed by Paul John & Co Solicitors
For the Respondent: Ms Ahmed, Home Office Presenting Officer

DECISION AND REASONS

The Appellant
1. The appellant is a citizen of the Philippines born on 4th February 1989. He appealed against the respondent's decision dated 21st January 2015 to refuse to grant him leave to remain in the UK pursuant to a claim made under Article 8 of the European Convention on Human Rights.
2. On 6th June 2013 First Tier Tribunal Judge Oakley dismissed the appellant's appeal albeit finding family life between the appellant and his mother.
3. The appellant filed grounds for permission to appeal on the basis that the judge erred in applying the wrong standard of proof and in failing to take into account the human right of the mother further to Beoku-Betts v SSHD [2008] UKHL 39.
4. Permission to Appeal was granted by First Tier Tribunal Judge Shimmin on both of the grounds identified above.
Conclusions
5. Although Ms Ahmed referred to paragraph 31 of the judge's decision as indicating that the correct standard of proof was used, nowhere does the judge refer to the standard of proof that he applied either to the facts or to his conclusions. That specific reference may not have been an error had the judge not referred to references of 'certainty' in the decision. At [39] for example the judge states 'I cannot be certain that ?' in relation to facts found. Albeit that the decision appeared well reasoned and comprehensive, this error is fundamental to the correct assessment of the facts and conclusions.
6. In addition, although the judge gave consideration to the reasons the appellant's application was out of time and because the mother overlooked the visa or leave requirements, nowhere does the judge specifically refer to the mother's statement in order to assess the strength of the family life. This is an error.
7. In passing I also note that the judge refers in conclusion that 'the paramount matter for consideration must be the right to control immigration' [41]. Although the Immigration Rules are the starting point and do reflect the position of the Secretary of State in the Article 8 balancing exercise with regards proportionality, they are not the paramount matter for consideration. That too was an error in assessing proportionality.
8. The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). Bearing in mind the nature and extent of the findings to be made the matter should be remitted to the First-tier Tribunal under section 12(2) (b) (i) of the TCE 2007 and further to 7.2 (b) of the Presidential Practice Statement.

Signed Date 13th June 2016


Upper Tribunal Judge Rimington