Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/06575/2015
IA/06573/2015
IA/06581/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 October 2016
On 31 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

VERA [M]
[D K]
[S K]
(anonymity direction NOT MADE)

Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mr. M. Al Rashid, Counsel, instructed by Carlton Law Chambers
For the Respondent: Mr. S. Kotas, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the Appellants against the decision of First-tier Tribunal Judge Coll, promulgated on 4 March 2016, in which he dismissed the Appellants' appeals against the Respondent's decision to refuse to vary leave to remain in the United Kingdom.

2. Permission to appeal was granted as follows:
"An arguable error of law has arisen in relation to the extent of the available evidence having been considered by the Judge. This arguably has affected the analysis made by the Judge leading to his conclusions. The date of hearing endorsed on the supplementary bundle is 26th January 2016. Mr [O]'s statement appears at page 5 and follows that of the Appellants."
3. The first Appellant attended the appeal. I heard submissions from both representatives following which I announced that I found the decision involved the making of a material error of law and I remitted it to the First-tier Tribunal to be remade.

4. At the outset of the hearing, Mr. Al Rashid stated that he had not seen the grounds of appeal, as he had been instructed under direct access, and Mr. Kotas stated that he had not seen the grounds of appeal either. Both were provided with copies of the grounds of appeal, and the opportunity to consider them.

Submissions

5. In his submissions Mr. Al Rashid referred to paragraph 30 of the decision. This states that the first Appellant was granted permission to appeal to the Upper Tribunal in May 2008, and that she withdrew her appeal on 17.07.2008. The appeal was against the decision of Immigration Judge Handley. He submitted that this was an error as in fact the Respondent had withdrawn the decision. I was referred to a decision by Upper Tribunal Judge Chalkley dated 25 July 2008.

6. He therefore submitted that the judge was not entitled to rely on the decision of Immigration Judge Handley under Devaseelan principles, given that the Respondent had withdrawn the decision on which the appeal had been based. The decision of Immigration Judge Handley was in effect null and void.

7. He submitted that the Appellant had come to the United Kingdom on 24 August 2002. She had therefore been lawfully resident for ten years, taking into account the fact that discretionary leave was granted to the Appellants following the withdrawal of the decision on which the previous appeal was based. He accepted that this was not an issue which was before me, but submitted that as the Respondent had withdrawn the decision and granted leave, the first Appellant had been lawfully resident for ten years.

8. In relation to the witness statement of the second and third Appellants' father, this had not been taken into account, and adverse credibility findings had been made as a result. In addition, two further witness statements had not been considered. The first of these was from [VD] , the sister of the first Appellant (pages 10 and 11 of the Appellants' bundle). The second was from [KT] (page 128). Material evidence had not been considered and, as a consequence, the assessment of the best interests of the second and third Appellants was flawed. There was no formulation in the decision of the best interests of the children being a primary consideration, which in turn impacted on the question of reasonableness of return.

9. In response, Mr. Kotas submitted that the issue of the previous decision and the Devaseelan point had not been raised in the grounds of appeal. However, he accepted that there was an error of law in the decision in the way that the second and third Appellants' father's evidence had been dealt with.

10. He submitted that normally in the case of a material mistake of fact an appeal would need to go back to the First-tier Tribunal for a full analysis. However, he submitted that, in the Appellants' case, it was not necessary as there was enough evidence before me to remake the decision. He referred me to paragraphs 67, 70 and 71 of the decision, and submitted that this contained an adequate assessment of the children's best interests. Taking the Appellants' case at its highest, the second and third Appellants' father was an overstayer and it was a matter of choice whether he returned to Sierra Leone with the children. He submitted that on the facts before me the decision could be remade.

11. Mr. Al Rashid acknowledged the acceptance by Mr. Kotas that the decision involved the making of a material error of law. However, the second and third Appellants' father was Nigerian, not from Sierra Leone, so the judge needed to take into account how the children would be affected either by their father remaining in the United Kingdom or by him being in Nigeria. Additionally there were two other witnesses whose evidence needed to be considered. He submitted that as this was a child centred appeal with the best interests of the children being a primary consideration, the fair way to proceed would be to remit the case to the First-tier Tribunal for a fresh hearing.

Error of Law

12. The issue arising from the withdrawal of the previous decision by the Respondent, the subsequent grant of leave, and whether or not this meant that the first Appellant had been lawfully resident for ten years, was not before me, as was acknowledged by Mr. Al Rashid.

13. In relation to the second and third Appellants' father's evidence, in paragraph 62 the judge finds that there is "no credible core" to the first Appellant's evidence. He goes on to state:
"Secondly the first appellant says that it is critical that children remain in the UK in order to continue their close relationship and regular contact with their father. There is no documentary evidence before me to show that Mr. [O] plays this part in the children's life. I find the explanation for why Mr. [O] neither produced a witness statement nor attended today to be implausible."
14. Paragraph 64 states:
"With regard to Mr. [O], I find that he has not played the highly involved role in his children's life suggested by the first appellant in the light of lack of evidence, his total lack of involvement in these proceedings and my findings about the first appellant's credibility. I find that therefore the children's relationship with him could be continued by modern means of communication (such as telephone calls, emails and social media), and by letter and by card writing if they were to return to Sierra Leone."
15. The grounds of appeal state that there was a witness statement made by Mr. [O] provided to the First-tier Tribunal (paragraph (i)). I was referred to this witness statement (pages 5-9 of the bundle before the First-tier Tribunal). I find that the decision contains a mistake of fact when it states that Mr. [O] had not produced a witness statement for the hearing. It is therefore also a mistake to state that Mr. [O] had a total lack of involvement in the proceedings (paragraph 64).

16. The decision also refers to an explanation that was given for why Mr. [O] had not produced a witness statement. The judge states that he finds this explanation to be implausible. However, given that Mr. [O] had produced a witness statement, it is difficult to see what explanation could have been given, and indeed there is no detail given as to the explanation that was found implausible. This finding has in turn impacted on the judge's credibility findings in relation to the first Appellant.

17. As was accepted by Mr. Kotas, I find that this mistake of fact amounts to a material error of law.

18. I find that, as a result of making a mistake of fact relating to Mr. [O]'s evidence, the judge found the first Appellant, the mother of the second and third Appellants, to be lacking in credibility. Witness evidence was provided from the second and third Appellants' father, and also from their aunt and another close friend. There is no reference in the decision to any of this evidence. Both of these issues impact on the assessment of the best interests of the children, as without consideration of all of the evidence, a full assessment of the children's best interests cannot be carried out. I therefore find that the best interests assessment carried out in the First-tier Tribunal is not sufficient, given that it follows on from adverse credibility findings having been made, and a failure to consider all of the evidence.

19. I accept that the second and third Appellant's father does not appear to have leave to remain in the United Kingdom. However, it is not as simple as stating that he could choose to return to Sierra Leone with the children as he is Nigerian. The assessment of the best interests of the children will need to consider the impact of their return to Sierra Leone with their father remaining in the United Kingdom, and also with him returning to Nigeria.

20. 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, taking into account the fact that a full best interests assessment needs to be made for the second and third Appellants, and having regard to the overriding objective, I find that it is appropriate to remit this case to the First-tier Tribunal.

Notice of Decision

21. The decision of the First-tier Tribunal involves the making of a material error of law and I set the decision aside. No findings are preserved.

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

23. No anonymity direction is made.

Signed Date 27 October 2016

Deputy Upper Tribunal Judge Chamberlain