Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number IA/05881/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower
Decision and Reasons Promulgated
On 22nd March 2017
On 26th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE PARKES

Between

HARJINDER SINGH
(ANONYMITY DIRECTION NOT MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr H Samra (Solicitor, Harbans Singh & Co)
For the Respondent: Mr D Mills (Home Office Presenting Officer)

DETERMINATION AND REASONS

1. The Appellant's application for leave to remain in the UK under article 8 was refused. His appeal was heard by First-tier Tribunal Judge Pacey in Birmingham on the 13th of June 2016. His appeal was allowed for the reasons given in the decision promulgated on the 27th of June 2016 and which is now the subject of challenge by the Secretary of State.

2. The application had been made on the 21st of June 2010. The Refusal Letter of the 27th of January 2015 contained assertions that during the time the Appellant maintained that he had been in the UK (claiming to have arrived in January 1996) he had made 2 applications to enter from outside the UK in 2008 and 2011. It was not accepted that the Appellant had lived in the UK for time claimed there being no evidence since his claimed arrival in 1996 to 2009 and it was not accepted he had been in the UK continuously. The Appellant did not succeed under the Immigration Rules or article 8.

3. The Judge rejected the Secretary of State’s claim that the Appellant had made visit visa applications in the past and found that there was evidence of his continuous residence since 1996 and that he had not left the UK in that time. The reasons are given in paragraphs 12 to 24. The Judge also referred to the Appellant's child, not a British citizen, and the delay in the Home Office’s consideration of the application. The appeal was allowed under the Immigration Rules.

4. The grounds assert that there was a lack of reliable documentary evidence to support the Appellant's claimed presence in the UK for the time that he claimed. The letters referred by the Judge focussed on his physical appearance and were not supported by the individuals giving evidence or photographs. Neither the Appellant nor his partner had lawful status in the UK. The Appellant did not meet the terms of paragraph 276B of the Immigration Rules.

5. The Respondent was granted permission by Judge E B Grant in a decision of the 13th of October 2016 noting that the issue of physical appearance is not an indication of the length of time that a person has lived in a place. Given the absence of the authors of the letters it was arguable that little weight should have been given to the evidence.

6. At the hearing the representatives maintained their respective positions. The Home Office submitted that the letters were inadequate, one went back to 2008 leaving a 12 year gap, the other referred to 1996. It was submitted that the evidence from the Appellant was insufficient the witnesses had not turned up. The Sikh temple had not specified the number of years and there was no corroborative evidence.

7. For the Appellant it was submitted that the Judge had found that the evidence was plausible and had considered the evidence of changing circumstances. From all the evidence she had found that the Appellant had not left the UK since his arrival and had given adequate reasoning.

8. The evidence submitted by the Appellant was couched in very general terms but short on specific detail that would support his claims to continuous presence over so many years. That from the Gurdwara of the 28th of April 2015 only referred to the “past number of years.” Preceding letters started with 1998 but did not go into details or show continuous presence. The affidavit from the Appellant's mother asserts when he left home and she has not seen him in India since but the rest has to be a repeat of what she had been told as she cannot have direct knowledge.

9. The evidence relating to physical appearance again is lacking information that might have been expected to have been available over so many years. As it is the Appellant's case that he was able to enter the UK without detection the Judge’s questioning of his ability to do so misses the fact that his case is based primarily on that ability.

10. Having considered the decision and the evidence on which it is based it is my view that the evidence that the Judge relied on did not justify the findings that were made. Much of the evidence amounted to effectively bald assertions with no supporting information or evidence. The vagueness of the evidence, the lack of supporting evidence that might have been expected and the failure of witnesses to give oral evidence were all features that the Judge should have had regard to. In the circumstances I do not see how the decision can be maintained and the safest course of action is to remit the appeal to the First-tier Tribunal for re-hearing before a different Judge.

CONCLUSIONS

The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

I set aside the decision and the appeal is remitted to the First-tier Tribunal for re-hearing on all issues to be heard not by Judge Pacey.

Anonymity

The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and I make no order.

Fee Award

I make no fee award which remains an issue for the First-tier Tribunal at the conclusion of the re-hearing.

Signed:

Deputy Judge of the Upper Tribunal (IAC) Parkes

Dated: 5th April 2017