Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/07993/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 18th November 2016
On 25th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

S O S
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Coleman instructed by Nandy & Co, London
For the Respondent: Mr Diwnycz, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Nigeria whose date of birth is recorded as 23rd March 1986. On 20th October 2014 he made an application for leave to remain in the United Kingdom on the basis of family and private life. O 12th January 2015 a decision was made to refuse the application and the Appellant appealed.
2. On 9th May 2016 the appeal was heard before Judge of the First-tier Tribunal Porter sitting at Hatton Cross, London. In a decision dated 9th June 2016 she dismissed the appeal. It is clear from the decision that she was, to say the least, "unimpressed" by the evidence of the Appellant. In respect of part of the evidence she said, "I found the Appellant's evidence to be incredible and wholly implausible".
3. It is also of note at paragraph 20 of that decision that whilst the judge accepted that the Appellant's name appeared on the birth certificate of the child associated with this appeal, and that the birth of that child occurred one year after the Appellant and the Sponsor married, absent DNA evidence, the judge found that paternity had
not been established "conclusively". Whether the judge found, on balance of probabilities that paternity had been established is moot since it is clear, and both parties before me agree, that no sufficient finding was made.
4. Not content with that Decision, by Notice dated 23rd June 2016 application was made for permission to appeal to the Upper Tribunal. There were a number of grounds but that which found most favour with Judge Hollingworth, in granting permission, was no sufficient reference to Section 117 of the Nationality, Immigration and Asylum Act 2002, consideration of which is mandatory, and relevant to this appeal is Section 117B(6) because the public interest does not require the person's removal where the person has a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect the child to leave the United Kingdom.
5. It is now trite law that that particular part of section 117B requires consideration of the whole section but that was not done.
6. Application was made before me to introduce further evidence in the form of a DNA report which evidenced the Appellant being the father of the child to a probability of 99.9%. Mr Diwnycz for the Secretary of State made objection to that evidence being admitted on the basis that there had been no DNA testing of the mother, notwithstanding the fact that it was not in issue that the mother of the child was indeed the mother.
7. Given the inevitable finding, certainly on balance of probabilities, based on that evidence that the Appellant was the father of that child, and given the fact that it concerns a child, it seemed to me entirely proper that the evidence should be admitted, all the more so since it went to the issue of whether or not there had been an error of law based on the facts. I gain help from the guidance in the case of E and R v Home Secretary [2004] QB 1044.
Was there an error of law?
8. On the basis of the inevitable finding that the Appellant is the father of the child, which evidence was not before the judge, Mr Diwnycz did not seek to persuade me, quite properly, that the error was not material. It is perfectly clear to me reading the decision as a whole that the judge did not accept that the Appellant was the father of the child and that view appears to have infected, or is at least at risk of having infected, all other findings.
9. In the end, by consent, this case is to be remitted to the First-tier Tribunal with no findings preserved to be heard afresh before a judge other than Judge Porter at Taylor House. If possible the matter should be listed before me but given the involvement of a child it is more important that the case is heard earlier than that it is heard at my convenience.
10. Given the involvement of the child I make an anonymity order in the usual terms.

Notice of Decision

The decision of the First-tier Tribunal contained a material error of law. The decision of the First-tier Tribunal is set aside to be re-made in the First-tier Tribunal.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge Zucker