Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13156/2011

THE IMMIGRATION ACTS

Heard at Field House, London
Determination Sent
On 9th May 2013
On 4th June 2013
Prepared

Before

upper tribunal JUDGE roberts

Between

mr kiirya fredrick lubega
(ANONYMITY DIRECTION NOT MADE)

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Himself
For the Respondent: Miss Kiss, Home Office Presenting Officer

DETERMINATION AND REASONS

1. The Appellant Kiirya Fredrick Lubega date of birth 14th March 1980 is a citizen of Uganda. This is his appeal against the determination by First-tier Tribunal Judge Geraint Jones QC promulgated 14.06.2011. The First-tier Tribunal Judge dismissed the Appellant’s appeal against the Respondent’s refusal to vary his leave to remain and his Article 8 ECHR claim. At the original hearing before Judge Jones QC, it was conceded by those representing the Appellant that he could not succeed in his appeal under the Immigration Rules and therefore what was left before the First-tier Judge was an Article 8 ECHR claim only.
Background
2. Following Judge Jones’s decision the Appellant, who at that time was represented by Charles Annon Solicitors, sought permission to appeal. The grounds seeking permission relied upon the claim that the Judge had erred in giving insufficient consideration to the rights of the child; whom it was claimed would be able to register as a British citizen as the Appellant’s child’s mother (also from Uganda) had indefinite leave to remain in the United Kingdom when the child was born. The Appellant’s claim is based on his relationship with the child’s mother. He claims to be in a family relationship with her and their child.
3. It was also submitted that insufficient consideration had been given to the Appellant’s private life – the Appellant having been in the UK since 2001 when he entered as a student.
4. Judge Easterman in a fully reasoned decision refused permission to appeal. The Appellant then renewed the application before the Upper Tribunal. Permission was granted by Upper Tribunal Jordan on 31st August 2011 and the relevant parts of the grant reads as follows: -
“(1) I am not sure whether the Immigration Judge found that the appellant’s girl-friend was settled in the United Kingdom and had received indefinite leave to remain.
(2) There is a difference between being a United Kingdom citizen and being entitled to apply for United Kingdom citizenship but it would have been helpful to know if the Immigration Judge found the appellant’s son was entitled to United Kingdom citizenship.
(3) Whilst the Immigration Judge refers to no ‘undesirable difficulties’ for the son to settle in Uganda, the test is whether it is reasonable for him and his mother to do so which the Immigration Judge does not address.
(4) Although the Immigration Judge categorises the appellant as one who has been in the United Kingdom illegally, the respondent herself does not appear to have taken that view since she granted him leave to remain as a Tier 4 (General) Student until November 2010 (as well as 2008-2099). If the Secretary of State does not take the point, it is arguable the Immigration Judge should not have done so.
(5) If the reality of this appeal is that the appellant has a right to enter the United Kingdom under the Immigration Rules in one capacity or another on the basis of a subsisting relationship with the mother of his child, it would have useful (sic) to know that since this is bound to be material for Article 8 purposes, Chikwamba”.
5. Following that grant of permission directions were issued on 3rd November 2011. Those directions stated that the First-tier Tribunal’s decision would be set aside and that the appeal would accordingly proceed to a hearing for the purpose of considering evidence relevant to the remaking of the decision.
6. The matter was then set down for hearing on various dates throughout 2012, but the appeal did not proceed to a hearing throughout 2012, because the Respondent had started to make enquiries about the immigration status of the Appellant’s girlfriend. This of course could impact upon the immigration status of their child.
7. Finally the matter was set down as a resumed hearing before me on 9th May 2013. Notices of the hearing were served at the Appellant’s last notified address and also upon his representatives Charles Annon & Co. Notices for the hearing were sent out on 18th April 2013.
8. The Appellant attended the hearing accompanied by his girlfriend and their child. No representative attended. Miss Kiss attended for the Respondent.
Preliminary Issue
9. The Appellant applied for an adjournment of the hearing. His application was on this basis. He stated that his representative was not in attendance and he wished for them to attend. He claimed that he had not received a copy of the hearing notice. He said that he had been living at 276 Worton Road but had changed address at the end of March. This was due to the property at Worton Road suffering some damage which required building work.
10. Clearly the Appellant had received some notice of the hearing because he was there in attendance. His representatives had certainly been informed of the hearing. He also confirmed that his representatives knew of the hearing today and proceeded to show me a letter on his mobile phone (a copy of which is in the file dated 9th May 2013), briefly stating that an adjournment was sought. That letter was sparse in content.
11. I made further enquiry of the Appellant and asked why he had not kept in touch with his representatives since the Tribunal file clearly showed that on 21st March 2013 his representatives had attended a directions hearing and would have been well aware from that hearing that the case was to be set down for a full hearing. I also asked the Appellant how he knew about today’s hearing. He conceded that some of his post did get through to his new address, but then changed his application to say he had been in touch with his representative and that they wanted £300 off him to attend the hearing today. He said that he had not enough time to gather the money so was now asking for an adjournment to give him time to get the funds.
12. I enquired where the money was to come from for these funds. The Appellant said that his brother would give him the money but could give no indication of how long it would be before any money was available.
13. I concluded that if I were to adjourn there was no realistic prospect that the Appellant would be able to access sufficient funds within a reasonable timeframe. This case has been going on for a considerable period of time. As the Appellant had not been able to accumulate sufficient funds to pay for his representation by this time, I saw no evidence that he would be able to do so within the near future. I therefore declined to adjourn the matter and informed the Appellant I would proceed with the hearing and take evidence from him and his witness, his girlfriend Hadija Kayuki.
14. I confirm that I had all the documents before me which were before the First-tier Tribunal Judge. Importantly those documents included a witness statement of the Appellant dated 6th June 2011 and one dated 21st June 20011 (sic). In addition further documents had been put in by Miss Kiss relating to interviews and applications concerning the Appellant’s girlfriend Hadija Kayuki. Copies of those documents had been properly served upon the Appellant’s representatives.
15. I hereby record that I was unable to locate a manuscript statement of the Appellant’s girlfriend which is referred to in the determination of Judge Jones QC. I took full oral evidence from her however.
16. The Appellant Frederick Lubega told me that his current address is 29 Reynolds Road UB4 9BX. This is the address of his brother. He relied upon two witness statements which in summary states that he entered the United Kingdom first on 9th August 2001 with leave to remain as a student until 9th August 2004. He is a Ugandan national. He states that he lost his passport in 2001 and applied to the Ugandan Embassy but they took a long time to give him a new passport.
17. He states that he was a student at London Southbank University until 9th August 2004. There is a gap then in his immigration history. He was however later granted leave to remain as a student between 6th October 2008 to 31st October 2009. There is then a further gap before he was granted leave to remain as a Tier 4 (General) Student until 3rd November 2010.
18. The Appellant claims that some time in 2004 he met his girlfriend, now his fiancée Hadija. On 1st March 2007 a son was born of their union, the child’s name is Caius.
19. The Appellant said that his child’s mother is his girlfriend at the moment and that he lives with her sometimes but accepted that he was not working or studying at present. She and the child are reliant upon public funds.
20. He told me that he does voluntary work for the church that he belongs to and said he sees his son every day.
21. He claimed that he had adapted to life here in the UK and would like to stay. He agreed that his father is still living in Uganda although he has a brother in the UK.
22. Miss Kiss then asked the Appellant questions. He was asked why when his leave to remain had finished in 2004 he had overstayed? He replied it was because his passport had got lost. He was then referred to his application for leave to remain which was dated November 2010. It was put to him that he had failed to disclose on that application form as he was required to do so, that he had a conviction for fraud. It transpired that he had been convicted of fraud in 2008 when he had fraudulently used his brother’s passport in order to obtain employment. He agreed that he had been convicted of fraud. His explanation was that he wanted to earn money to help support his girlfriend and child. He gave no explanation for omitting to leave out those details on the leave to remain application form.
23. The Appellant stated that his relationship with his girlfriend started in 2004 but in 2007 when she was pregnant with the child; he stopped living with her.
24. He was then referred to an application made by him in 2008. That application makes no mention of his being the father of his child. It gives an address of 38A High Street Richmond and claims on that form that he had no partner or child. He responded to this by saying that he had given all the information to whoever had filled in the form and he had just signed it without reading it. He then blamed the lack of correct information being given on the fact that his representatives’ offices were in Kent and he could not travel there due to lack of funds.
25. When asked if he was supporting his girlfriend and son financially, he said that he did help if he could afford to. He works sometimes but his girlfriend is in receipt of public benefits.
26. He was then asked about the various addresses at which he had lived over the period of years since his entry to the United Kingdom and about the various addresses at which his girlfriend had lived. He was asked if he was claiming that since 2004 he had been in a constant relationship with his girlfriend. He replied in the affirmative. He was then referred to an interview record of a UKBA interview conducted with his girlfriend dated 20th March 2012. Questions from that interview were put to him by Miss Kiss. Question 16 and 21 of that interview record are as follows: -
Question: Where you living together at the time Caius was born?
Answer: We were on and off he was there when he was born. After some time he left, I thought he had returned to Uganda and I was with friends.
Question: When did you last live together?
Answer: Before the end of 2006 when I was pregnant.
The Appellant was asked if he could explain this discrepancy. He responded by saying that he did not know and “she will have to explain that”.
27. He was asked what care he gave to his son. He replied that he took him to school and to football on Saturdays. The Appellant said that he has a brother in the UK (the same person whose passport the Appellant fraudulently used to obtain work) and that his girlfriend also has a brother in the UK.
28. He was then asked what he knew about his girlfriend’s past. He was asked did he know that she had used different names since her entry to the United Kingdom. He said that he got to know this. She had come to the United Kingdom in 1999 when she was young. She had left the house of the people who had brought her because her step-mother expected her to wash cook and clean for all the family.
29. When asked what would happen to her if he returned to Uganda, he claimed that she would be devastated because he is with her everyday. It was put to him that his girlfriend is also a Ugandan national and she could return with him and the child. He responded by saying she has adapted to life in the UK and it is harder to get work in Uganda, the job opportunities are better here. That concluded his evidence.
30. I next heard from Hadija Namata Kayuki. She gave an address of 104 Woodlands Garden Isleworth. She stated that she had moved to that address two months ago because 276 Worton Road is being repaired. She said she moved out of Worton Road in late March. Miss Kiss asked her various questions.
31. She was asked about the interview that was conducted by UKBA regarding her immigration status. She was asked how old she was when she entered the United Kingdom and she replied that she was 16. It was put to her that in her Home Office interview she had said she was 13 and in a subsequent police interview had claimed she entered the United Kingdom aged 15. Which was correct? She responded by saying she did not remember.
32. She was asked when she had first entered into a relationship with the Appellant. She said she thought it was 2003 but did not remember the date. She said they started living together in 2004 but stopped in 2006 before her son was born. After that, she said, she and the appellant were living together “on and off”. She thought that when the Appellant had left her in 2006, he had returned to Uganda. She said that she started seeing him again because she wanted her son to know his father. She said both she and the Appellant spoke Ugandan and that her son also understands Ugandan when spoken to, although he will answer in English. She knew that the Appellant has family in Uganda because she has heard him calling and speaking to his father on the phone. She said she did not wish to return to Uganda. She wanted her son to be brought up in the UK. She accepted that her status here is questionable, but said that she got Job Seekers Allowance. She accepted that she had given evidence on the Appellant’s behalf before the First-tier Tribunal. (As can be seen from the papers, she was investigated by UKBA about her status and identity which she had used when first entering the UK. It would appear that she entered the United Kingdom as the dependant child of someone who was not her biological father. She used various aliases).
33. Miss Kiss asked her about the evidence she had given before the First-tier Tribunal Judge. She was referred to question 32 of her interview of 20th March 2012 when she was asked what name she had used when she signed her witness statement. She responded that she had used the “Hadija” identity. She was then asked if she had disclosed her true name and details in relation to Mr Lubega’s appeal. She replied she had not. When asked why not she replied to Miss Kiss,
“I explained to his Barrister my names and she said no need to make mention of all that”
Miss Kiss then put it to her, “You lied to the Court didn’t you?”
She replied to Miss Kiss “To me it is not lying. I am not lying to the Court. I didn’t think the Court should know the whole truth”.
34. That concluded her evidence.
Consideration of the Evidence and Findings
35. In making my decision I have taken into account in this appeal, as I am tasked to do, the family and private life of the Appellant. As in any Article 8 ECHR claim, regard must be had to the principles as set out in Razgar [2004] UKHL 27. The issue in this appeal is one of proportionality.
36. Since most of what the Appellant claims revolves around his relationship with his partner and their child, I take into account the principles set out in ZH (Tanzania) [2011] UKSC 4, Beoku Betts, E-A (Article 8 – Best interests of child) Nigeria [2011] UKUT 00315.
37. Concerning the familiar five questions which any decision maker should pose in relation to Article 8 and which are contained in Razgar, I am also aware that the determination of any Article 8 appeal must involve the decision maker striking a balance between the family and private life of the Appellant and the interference it may suffer and the interests of the wider community. I accept that the Appellant has demonstrated that he has family life in the United Kingdom at the present time with his partner and child and as I indicated earlier in this determination the issue is one of proportionality.
38. I start my consideration from the point of evaluating the evidence of the Appellant. I regret to say that on the core issue, I found the Appellant to be lacking in credibility. I say this for the following reasons. The main plank of the Appellant’s case, is his claimed relationship with his partner and child. When asked how deep or strong this tie was, his response amounted to,
“I live with her sometimes”…”I would like to stay here with my son and girlfriend – I have adapted to life here”.
The Appellant then gave a series of different addresses to those where his girlfriend lived. He said he lived with his brother. He said that he saw his son every day. It is hard to reconcile that statement with the fact that he only lives with his girlfriend “on and off”.
39. Against the Appellant is the fact that in 2004 he was an overstayer and during that time he started a relationship with his girlfriend. He stopped living with her by all accounts, whilst she was pregnant with her son. When he applied for leave to remain in 2008 made no mention of his girlfriend and son on his application form. His only explanation for that omission was to blame the person who filled in the form. I conclude that certainly during the early years of the child’s life, the Appellant simply wasn’t around. This belief is reinforced by the child’s first school record, which records that they had no record of the Appellant being the child’s father. The most telling part of his claimed relationship with his girlfriend is that he was unaware of the fact that she had taken an alias and that her status in the UK is in doubt. He only found this out at a later stage in their relationship.
40. The Appellant is no stranger to fraud. He fraudulently used his brother’s passport in order to obtain work. This was another fact that he failed to disclose in an application for leave to remain.
41. He told me that he does voluntary work for his church and I have no reason to doubt that. He explained that his father remains in Uganda and that if he had to return to Uganda his girlfriend would be devastated.
42. When asked why he and his partner could not return to Uganda together (since she is a Ugandan citizen as well) he responded that the job opportunities here are better and that it is harder to get work there. In fact he was unable to outline any prospects of work in the UK. When asked by Miss Kiss if he was saying that he was in a constant relationship with his partner he replied in the affirmative. However when it was pointed out to him that his girlfriend in interview had responded that they last lived together before the end of 2006 when she fell pregnant. She also said that they were living together on and off when the child was born. Could he comment on that? His only response was “I don’t know, she will have to explain that”.
43. Piecing all this evidence together, I am led to the conclusion that I can place little reliance upon the Appellant’s assertion his relationship with his girlfriend and son is as deep and durable as he would have me believe.
44. The evidence of his girlfriend did not assist him. She was asked when she had first entered into a relationship with him and she vaguely thought it was in 2003 but could not remember the date. She stated that they had lived together in 2004 but stopped doing so in 2006 before the child was born. She then described their living together as “on and off”. In fact in 2006 when they stopped living together, she said, she thought the Appellant had returned to Uganda so clearly there was not a great deal of communication between the Appellant and his girlfriend at that time. The Appellant in fact had not returned to Uganda but this is illustrative of the precarious nature of their relationship.
45. When asked why she had resumed her relationship with the Appellant, she replied that she wanted her son to know his father. That is to her credit.
46. She accepted that she is Ugandan and that her status in the UK is now in doubt. She was asked why she could not return to Uganda with the Appellant and their son. Her response to this was that her life is here and she is on Job Seekers Allowance.
47. When asked at what age she was when she had first come to the United Kingdom she was unable to give a straight response. In response to Miss Kiss she said she was 16 years of age; at an earlier interview she had said 13 years and in the police investigation concerning her status, she said 15 years. That further discredits her evidence.
48. There was nothing put forward of substance to show why she should not return to Uganda other than that she preferred life in the United Kingdom.
49. In the context of this evidence what of the Appellant’s child? Firstly he was born in the United Kingdom and has lived all his life here. He is now 6 years of age and has started school. He lives with his mother who is his primary carer and by all accounts there are no concerns for his general health and well-being.
50. The child is not a British citizen and his mother’s status in the UK is uncertain. She remains a Ugandan citizen. The child’s father is a Ugandan citizen. The child therefore is also a Ugandan citizen.
51. In normal circumstances I accept that it is in the best interests of a child to live with and be brought up with both parents. This is far from the case here. By all accounts from the child’s early years, the Appellant simply was not around; even though he was in the United Kingdom.
52. In 2008 he did not acknowledge the child and his girlfriend when making application for further leave to remain. I am told that he lives with the child’s mother “on and off”. This comes from the Appellant’s girlfriend. He certainly does not share the same address as his girlfriend. He openly states that his current address and residence is with his brother.
53. His contact with his child is limited. He says he taken him to school every day (that I do not accept) and plays football with him on a Saturday. It does not strike me that the Appellant can be said to be part of the family unit – far from it.
54. Added to this there is nothing that I have heard which would show it would be unreasonable for the child and the child’s mother to relocate to Uganda with the Appellant. They are all Ugandan citizens. There is nothing to prevent the Appellant’s girlfriend and the child from visiting the Appellant in Uganda. They would be entitled to entry.
55. I bear in mind that the Appellant, his girlfriend and their child are in receipt of public funds in the United Kingdom. There is nothing to show why it would be unreasonable for them to return to Uganda.
56. Set against the somewhat weak arguments for the Appellant remaining in this country under the provisions of Article 8, there is also the need of the United Kingdom government to maintain immigration control. He has used deceit to obtain work in the United Kingdom and this is a factor which I cannot ignore in carrying out the balancing exercise under Article 8.
57. In the light of the observations and findings that I have set out above, I have concluded that to refuse this Appellant leave to remain would not constitute a disproportionate interference with the family or private life rights of him or any member of his family. In making that decision I record that I have had regard to the rights of the Appellant’s girlfriend and child but neither those rights nor the Appellant’s own outweigh the public interest which lies in the refusal of this Article 8 claim.
DECISION
58. The decision of First-tier Tribunal Judge Jones QC contained an error of law. I hereby remake the decision.
This appeal is dismissed on human rights grounds (Article 8).

No anonymity direction is made

Signature Dated
Judge of the Upper Tribunal