Tribunal decisions

The decision

IAC-AH-dh-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10002/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 October 2016
On 01 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

Elizabeth [O]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Okunowo, of TolTops Solicitors
For the Respondent: Ms A Fijiwala, Home Office Presenting Officer

DECISION AND REASONS
1. This appeal arises from the decision of the respondent to refuse the appellant's application for a derivative residence card under Regulations 15A and 18A of the Immigration (EEA) Regulations 2006 ("the 2006 Regulations").
2. The appellant, who is a citizen of Nigeria born on 19 May 1982, made an application for a residence card on the basis that she is the primary carer of a British citizen child born on 18 February 2014 who would be unable to reside in the UK if she were required to leave.
3. The reason given by the respondent for refusing the application was that the appellant's son obtained his British citizenship through his claimed father but it was questionable whether the claimed father was indeed his actual father. It was noted that the appellant failed to provide DNA test results and had not explained the fact that she was not residing in the UK when her son was conceived. She also failed to provide any evidence why the purported father was not able to care for the child and to demonstrate that she was the primary carer.
4. The appeal was heard by First-tier Tribunal Judge Afako, whose decision was promulgated on 21 April 2016.
5. The judge stated that the Secretary of State was entitled to entertain and act upon doubts about previous information provided in support of a nationality application. Having heard the appellant give oral evidence the judge found her to be vague and unable to explain either why she came to the UK or the timing of key events in her narrative. He found the appellant's description of her son's father obtaining a UK passport for her son without her knowledge improbable and concluded that the appellant was not the parent of a British child.
6. The judge went on to find that even if the appellant's child was British, she had failed to establish she was his primary carer. At paragraph [25] the judge stated:
"Even if the question of paternity, which is the principal ground of refusal, were to be put to one side, it would take more evidence than has been adduced in this case to reach the conclusion that the appellant is indeed the primary carer of her son. This matter cannot simply be assumed and where there has been false or unreliable evidence adduced it is not possible to rely on the word of the appellant without more".
7. The grounds of appeal submit that the judge improperly focused on the child's nationality when the judge was not competent to make a decision in this regard. The child's citizenship has not been revoked and could not be disputed. It was argued that the only issue should have been whether the appellant is the child's primary carer and on this issue the judge failed to consider key evidence, in particular a letter from the appellant's GP. The grounds also argue that the appeal should have been considered under Article 8 of the ECHR.
Consideration
8. Having heard submissions from Mr Okunowo and Ms Fijiwala, I find that the judge has made two errors which are both material to the outcome of this appeal.
9. The first error was to question the citizenship of the appellant's child. Chapter 55 of The UK Visas and Immigration Nationality Instructions (headed "deprivation and nullity of British citizenship") explains the circumstances in which a person may be deprived of British citizenship. At paragraph 55.7.5 the guidance states that in general the Secretary of State may not deprive of British citizenship a person who was a minor on the date he applied for citizenship unless it is in the public interest to do so.
10. The appellant's son was undoubtedly a minor when the application for citizenship was made. No evidence has been put forward to suggest that it is in the public interest to deprive him of his citizenship and at the hearing before me Ms Fijiwala accepted that the nationality of the appellant's son was not at issue. In these circumstances I am satisfied that the judge made a material error of law by finding that the appellant was not the mother of a British child.
11. The second error of law concerns the judge's assessment of whether the appellant was the primary carer of her son. The judge concluded she was not on the basis he did not find her to be a truthful witness. The judge was entitled (and had good reason) to find the appellant not credible, but that does not mean material documentary evidence could be ignored.
12. The evidence before the judge included a letter from the appellant's GP which stated that the appellant was the sole person who brought her son to the surgery and was the surgery's only point of contact for her son. This letter constitutes clear and unambiguous evidence supportive of the appellant's claim. Whilst arguably it may not of itself be sufficient to establish that she meets the requirements under 15A of the 2006 Regulations, it was an error of law for the judge to fail to address this evidence.
13. Having advised the parties that I found there to be a material error of law in the First-tier Tribunal's decision, I invited them to make submissions in respect of the re-making of the appeal.
14. Mr Okunowo sought to introduce further evidence in support of the claim. Despite failure to apply in a timely manner Ms Fijiwala raised no objection and therefore the evidence is admitted. One of the items adduced was a letter dated 3 October 2016 from the nursery manager at the nursery attended by the appellant's son. The letter states that they have the appellant on their records as her son's mother and she is the person that drops and collects him from nursery. Moreover they note that it is her address that is on their record as the appellant's son's home.
15. In re-making this decision the issue for me to determine is whether the appellant satisfies the requirements of Regulation 15A(4A) in the 2006 Regulations whereby she must establish that:
(a) she is the primary carer of a British citizen;
(b) the relevant British citizen is residing in the United Kingdom; and
(c) the relevant British citizen would be unable to reside in the UK or at another EEA state if she were required to leave.
16. In order to satisfy the definition of a primary carer (at Regulation 15A(7)) the appellant must show she is the person who has primary responsibility for her son's care.
17. For the reasons I have given I am satisfied that the appellant's son is a British citizen. This was not disputed before me. The only issues to be resolved, therefore, are whether the appellant is her son's primary carer and whether her son would be unable to reside in the UK (or elsewhere in the EEA) if she were required to leave the UK.
18. I accept the point made by Ms Fijiwala that judge Afako for good reason found the appellant to not be credible. However the evidence before me in the form of a letter from the appellant's son's GP and from his school overwhelmingly supports the view that the appellant is her son's primary carer. In oral evidence at the rehearing the appellant stated that she has no contact with her son's father and that there is no-one other than her responsible for her son's care.
19. Having considered the documentary evidence referred to above along with the appellant's oral evidence before me, I am satisfied that the burden of proof has been discharged to establish that, on the balance of probabilities, the appellant is her son's primary carer and that if she were to leave the UK her son would be unable to remain without her as there would be no one to care for him.
20. As the requirements under the 2006 Regulations are satisfied the appeal is allowed.

Decision

1. The decision of the First Tier Tribunal contains a material error of law and is set aside.

2. I remake the said decision by allowing the appellant's appeal.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 28 October 2016