Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/06812/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision Promulgated
On 6th September 2016
On 7th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

AH
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Moksud, Legal Representative of International Immigration Advisory Services
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND DIRECTIONS
1. Before the Upper Tribunal the Secretary of State becomes the appellant. However, for the sake of clarity and to avoid confusion, I shall continue to refer to the parties as they were before the First-tier Tribunal.
2. The First-tier Tribunal made an anonymity direction in respect of this appeal. I continue that direction:
DIRECTION REGARDING ANONYMITY - RULE 14 OF THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
Background
3. On 28th April 2016 Designated Judge Woodcraft gave permission to the respondent to appeal against the decision of Judge of the First-tier Tribunal Brunnen in which he allowed the appeal against the decision of the respondent to refuse leave to remain in accordance with the provisions of Appendix FM and paragraph 276ADE of the Immigration Rules.
4. Designated Judge Woodcraft noted that the respondent's grounds of application took issue with the First-tier Judge's findings as to the appellant's relationship with a UK partner and their child, a British citizen. In particular the First-tier Judge saw vagueness in the appellant's evidence of the partnership and it was apparent from the evidence of the partner that there were grounds for concern about the subsisting nature of the relationship. The judge had not adequately explained why these difficulties and previous adverse credibility findings in an earlier decision by the First-tier Tribunal were outweighed by the appellant's evidence.
5. Designated Judge Woodcraft also commented that it was not clear that the respondent had considered her duty under Section 55 of the 2009 Act in the refusal decision. That might also mean that the respondent's decision was not in accordance with the law but, nevertheless, the first issue to consider was whether or not the judge's conclusions were adequately explained given the difficulties in evidence which the judge had highlighted.
Submissions
6. Mr Moksud drew attention to a Rule 24 response by the appellant which he thought had been submitted. The response was not on file but he handed in a copy and a copy was also given to Mr Bates. I allowed time to read that document before proceeding.
7. Mr Bates then made submissions. He contended that the judge's finding that the appellant was in a relationship with his partner, IK, was unreasoned particularly since, in the same paragraph, he expressed the view that, because of IK's "intellectual limitations", the relationship might be "exploitative". In reaching that finding the judge had not referred to any of the evidence which might have supported the conclusions. The judge had simply summarised the evidence in, for example, paragraphs 22 to 26, but did not explain how that evidence could support the existence of a genuine and subsisting relationship with IK. In particular, at paragraph 25, the judge had noted that a letter from a local authority in January 2015, had confirmed that the appellant's name had been added to the Electoral Register for the same address as IK, when the alleged relationship was claimed to have been in existence since at least March 2013. Further, the judge's conclusion in paragraph 38, that the appellant has a genuine and subsisting parental relationship with Z, was unreasoned.
8. Mr Moksud relied on the Rule 24 reply. This emphasised that the judge had made detailed reference to the appellant's evidence, particularly in paragraphs 16 to 18, which was sufficient to show the existence of a subsisting and genuine relationship between the appellant and his partner. Additionally, it was contended that the production of the birth certificate of Z showing A to be the child's father and the fact that the appellant had moved back to the property occupied by his partner and played an active part in the care and upbringing of their daughter, showed the parental relationship. The evidence summarised in paragraphs 22 to 27 was also said to conclusively prove that the parties were living together in a genuine and subsisting relationship. It was also contended that the judge did consider the respondent's obligations under Section 55 of the 2009 Act when assessing the best interests of the British citizen child.
Conclusions
9. At the end of submissions and after I had considered the matter for a few moments, I announced that the decision showed errors on points of law such that it should be set aside. My reasons for that conclusion follow.
10. The statements of the judge in paragraphs 30 and 38 that the appellant was in a relationship with his partner, IK, and that the child, Z, was a qualifying child within the meaning of Section 117B(6)(a) and has a genuine and subsisting parental relationship with that child are unreasoned. Although the judge may be said to have referred to evidence which might support those contentions when summarising the evidence in earlier parts of the decision, it was incumbent upon him to identify that evidence and to explain why other unsupportive evidence did not detract from his conclusions. It is clear from the evidence which the judge has summarised there was room for significant doubt about the genuineness of the relationship particularly when the judge thought it might be "exploitative" and the evidence of cohabitation was inconsistent. Further, the judge also made reference to a previous unsuccessful appeal by the appellant in the First-tier Tribunal where the Designated Judge pointed to significant inconsistencies in the appellant's relationship with another claimed partner and child finding the appellant to be incredible on that occasion. The present decision does not seek to explain why earlier significant adverse findings of credibility had no relevance to the present favourable ones.
11. The decision of the First-tier Judge is clearly inadequately reasoned. For that reason there will have to be a fresh hearing before the First-tier Tribunal when the claims and evidence can be considered again. This accords with paragraph 7 of the Practice Statement by the Senior President of Tribunals of 25 September 2012.
Notice of Decision
The decision of the First-tier Tribunal shows an error on a point of law. It is set aside for hearing afresh by the First-tier Tribunal.

DIRECTIONS
12. The appeal is remitted to the First-tier Tribunal for hearing afresh.
13. The hearing will take place at the Manchester Hearing Centre.
14. The hearing should not be before Judge of the First-tier Tribunal Brunnen.
15. No interpreter will be provided for the hearing before the First-tier Tribunal unless representatives or the appellant indicate to the contrary.
16. The time estimate for the hearing is two hours.

Signed Date 7th October 2016

Deputy Upper Tribunal Judge Garratt