Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/15555/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
Oral determination given following hearing

On 28 November 2016
On 16th January 2017

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mrs Gloria Egbe Lennon
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant (Secretary of State): Mr L Tarlow, Home Office Presenting Officer
For the Respondent (Mrs Lennon): Mr T Ojo, Solicitor, of CW Law Solicitors

DECISION AND REASONS
1. This is an appeal by the Secretary of State against a decision made by First-tier Tribunal Judge Ghaffar, which was promulgated on 6 July 2016 following a hearing at Taylor House on 10 June 2016. For ease of reference I shall throughout this decision refer to the Secretary of State, who was the original respondent, as "the Secretary of State" and to Mrs Lennon, who was the original appellant as "the claimant".
2. The claimant is a national of Nigeria who was born on 13 December 1978. She entered this country on 14 August 2010 with leave to remain for six months as a visitor but she overstayed. Then, on 8 May 2014, she applied for leave to remain on the basis that her removal would be in breach of her rights under Article 8. That application was refused on 17 July 2014 with no right of appeal. Further representations were made but on 1 April 2015 the respondent made a decision to refuse the application and also made removal directions under Section 10 of the Immigration and Asylum Act 1999.
3. The claimant appealed against this decision and, as already noted, her appeal succeeded before First-tier Tribunal Judge Ghaffar. The Secretary of State now appeals with leave given by First-tier Tribunal Judge Ransley, on 27 October 2016, against this decision.
4. The facts can be set out relatively briefly. As already noted, the claimant remained without leave after visiting but she had previously visited this country in 2006 and had made subsequent visits during the course of which she says she entered into a relationship with one David Innes as a result of which she became pregnant. Her son, Dominion, was born on 15 August 2008. She claims that he is the son of Mr Innes, who is a British citizen, and is accordingly a British citizen but this has not been established. She says that Mr Innes has been uncooperative and has not assisted her in establishing paternity, but it would at all times have been open to her to have sought to have a DNA test to establish paternity, which she has not done. Accordingly, for present purposes she has not established that her son is a British citizen and therefore he cannot be treated as such.
5. Subsequently the appellant has married one Martin Lennon, who is a British citizen and is apparently close to retirement age and working and she now claims that her removal would be in breach of her Article 8 rights and also that of her son. She claims that her son treats Mr Lennon as his father and that it would not be feasible for him to go with her to Nigeria because instead of having a job here he would be destitute in Nigeria. The judge found that there would be no very significant obstacles to the claimant returning to Nigeria and that in those circumstances her appeal had to fail under the Rules. He stated that he had given little weight to the relationship with Mr Lennon having had regard to Section 117B(4) of the Nationality, Immigration and Asylum Act 2002, which provides that:
"Little weight should be given to -
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully",
which of course was the case here.
6. It is not suggested before me that any of the requirements set out within paragraph 276ADE(1)(iii) to (vi) are satisfied and indeed Mr Ojo accepted that they were not and so the only basis upon which the application could be granted outside the Rules is if there was some factor so compelling that exceptionally permission should be given outside the Rules. Although at paragraph 20 of the decision the judge states that "I find that on the facts of this case, there are exceptional circumstances which require me to consider the human rights of the appellant and her family outside the Immigration Rules", Mr Ojo accepts, as he has to, that nowhere within the decision does the judge say what these exceptional factors are. His decision to this effect is wholly unreasoned and for this reason it is unsustainable. It was incumbent upon the judge if he were to make a finding to this effect to state what was exceptional about this case which he has not done. It follows that the decision cannot stand but must be set aside because the failure adequately to explain his reasoning is a material error. In these circumstances the appellant's case has not properly been considered and it is therefore appropriate to remit it back to the First-tier Tribunal so that it can be reheard before another judge but not Judge Ghaffar. I accordingly find as follows:

Decision

The decision of First-tier Tribunal Judge Ghaffar is set aside as containing a material error of law and the appeal will be remitted back to the First-tier Tribunal sitting at Taylor House to be reheard by any judge other than Judge Ghaffar.

No anonymity direction is made.

Signed:

Upper Tribunal Judge Craig Dated: 24 December 2016