Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/15929/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 17 November 2016
On 23 November 2016

Before

UPPER TRIBUNAL JUDGE KEKI?

Between

KWAME KYEI-GYIMIAH
(anonymity order not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Dhanji, Counsel
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. This appeal is brought by the Secretary of State however for convenience I shall refer to the parties as they were before the First-tier Tribunal.
2. The appellant is a national of Ghana born on 12 June 1980. His wife and their two children are his dependants. Both he and his wife entered the UK as visitors and overstayed. A human rights claim was made after their arrest for immigration offences.
3. The appeal against the refusal of the article 8 claim was heard by First-tier Tribunal Judge Juss on 4 May 2016 at Birmingham and in a determination promulgated on 14 June 2016, the appeal was allowed. Regrettably, the judge does not distinguish between the appeal under the rules and on article 8 grounds in his heading "notice of decision", but it would appear from paragraph 13 of his determination that he meant to allow it on both limbs.
4. The judge made adverse credibility findings in respect of the appellant, whose evidence he did not believe; however, having found that the eldest child had been in the UK for seven years and was doing well at school, he considered that the requirements of paragraph 276ADE(iv) and free standing article 8 jurisprudence had been met.
5. The respondent obtained permission to appeal on the basis that the judge had misapplied paragraph 276ADE(iv) and had failed to adequately reason his article 8 findings and conclusions.
6. At the hearing before me on 17 November 2016, Mr Dhanji readily conceded that Judge Juss had made material errors of law; notably, that he had failed entirely to engage with whether it would be reasonable to expect a qualifying child to leave the UK. He asked that the matter be remitted back to the First-tier Tribunal for a hearing afresh as full findings would need to be made. Mr Melvin agreed to that course of action.
Findings and conclusions
7. It is plain from the determination that Judge Juss's findings fall far short of what was required in a case such as this. Not only did he misapply paragraph 276ADE(iv) by disregarding the date of the application as the relevant period in time for assessment, but he also failed entirely to have regard to the test of reasonableness. Thus, he erred in concluding that, having lived here for over seven years, the eldest child was a qualifying child for the purposes of paragraph 276ADE(iv) when, at the date of the application, the child had only been here for six years. He also failed to proceed to consider whether it would have been reasonable to expect the child to leave the UK and there was no consideration of the unduly harsh test. The judge also failed to have any regard to section 117B when reaching his conclusions.
8. The judge made errors of law and the determination is therefore unsustainable and is set aside in its entirety except as a record of proceedings.

Decision
9. The determination contains errors of law such that the decision is set aside. It is remitted to the First-tier Tribunal for a fresh hearing and for the decision to be re-made.
10. There has been no request for an anonymity order and I therefore do not make one.

Signed

Upper Tribunal Judge

Date: 17 November 2016