Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16403/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 October 2016
On 28 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

AMOS [C]
(anonymity direction NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Not represented
For the Respondent: Mr. S. Kotas, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Holder, promulgated on 10 March 2016, in which he dismissed the Appellant's appeal against the Respondent's decision to refuse to grant further leave to remain in the United Kingdom.

2. Permission to appeal was granted as follows:
"The Appellant's case included reference to the Appellant's girlfriend's pregnancy. In the analysis set out by the Judge under the heading "Findings" the Judge has referred at paragraph 31(f) to finding that the Appellant does not have a child and that there is no documentary evidence confirming that his girlfriend is pregnant. The Judge has not made a finding in relation to the question of the pregnancy of the Appellant's girlfriend.
Reference is made in the permission application and accompanying documentation to evidence having been given at the hearing of the pregnancy of the Appellant's girlfriend. The Appellant's girlfriend states that in the appeal she gave new evidence following the discovery on 18th February 2016 that she was pregnant. The appeal was heard on 23rd February 2016.
An arguable error of law has arisen in relation to the absence of a finding of fact by the Judge in relation to this evidence and the bearing of it upon the Judge's findings in relation to whether or not there would be a breach of Article 8 outside the Rules."
3. The Appellant attended the hearing. He was not represented, and had not been represented in the First-tier Tribunal. The Appellant made oral submissions, following which Mr. Kotas made submissions to which the Appellant replied. I was satisfied that the Appellant understood that the issue before me in the first instance was whether or not there was an error of law in the decision of First-tier Tribunal Judge Holder.

Submissions

4. The Appellant said that this issue had been ongoing for some time and had affected his family greatly. He came to the United Kingdom to study and to further his life, as well as to support his father who is terminally ill. He had just celebrated the two year anniversary of being with his girlfriend. It was hard to prepare for the baby given that he was out of work. There had just been oral evidence at the hearing regarding the pregnancy. A home pregnancy test had been conducted which had shown a positive result, but there had been no documentary evidence before the judge.

5. Mr. Kotas submitted, making every allowance for the fact that the Appellant was not represented, that there was no error of law identified in the grounds of appeal. Permission had been granted on the basis that a material mistake of fact had been made. He referred to paragraph 31, and stated that this was correct. Evidence of the pregnancy went to the relationship and the quality of the relationship. The judge had not doubted the nature of the relationship - I was referred to paragraph 31(d).

6. In relation to an Article 8 claim, it was hard to see how, if there was an error of law, that it was material. He questioned what difference it would have made even had the judge made a clear finding that the Appellant's girlfriend was a few days pregnant. There had been no challenge to the statement at paragraph 32(b) that the Appellant's girlfriend had indicated that she was willing to go to Zimbabwe. A finding that she was pregnant would not have overturned the finding at paragraph 32(b) that she was willing to go to Zimbabwe with the Appellant.

7. In response the Appellant submitted that there was a life coming into the world which needed to be cared for and, with his limitations, it had been hard. In relation to paragraph 32(b) he submitted that he had not been represented at the First-tier Tribunal and, on grounds of compassion and humanity, the reality was that he needed to look after his child. His girlfriend was British born and studying here. He asked how he could be expected to move her to Zimbabwe, a state in turmoil and anarchy, to raise a child with British heritage.

Error of Law

8. I have carefully considered the grounds of appeal bearing in mind that the Appellant is not represented. I accept that it is not drafted such that it points to an error of law, but permission has been granted on the basis that the judge failed to make a finding in relation to the question of the pregnancy of the Appellant's girlfriend.

9. I have carefully considered the decision. In paragraph [16], when recounting the evidence, the judge states that the Appellant's girlfriend "said that she believes that she is pregnant. She has undertaken home pregnancy tests but has not had a test at a doctor's surgery."

10. In paragraph 31(f), when considering the public interest aspect with reference to section 117B(6) the judge states "I find that the Appellant does not have a child and there is no documentary evidence confirming that his girlfriend is pregnant".

11. While this is correct, I find that there was oral evidence before the judge that the Appellant's girlfriend was pregnant. The wording in paragraph 16 that the Appellant's girlfriend "believes" that she is pregnant is slightly odd, given that the judge then states that she gave evidence that she had undertaken a home pregnancy test. The judge has not made a finding that the Appellant's girlfriend was not credible. He has not given any reason for why he has not accepted her evidence that she was pregnant. Subsequently he has made no finding as to whether or not she is pregnant, stating only that there is no documentary evidence of the pregnancy, but without reference to the oral evidence.

12. I find that this is a relevant issue on which the judge has failed to make a finding. I find that his failure to do so is an error of law.

13. However, I do not find that it is a material error given the judge's finding that the Appellant's girlfriend was prepared to go to Zimbabwe with the Appellant. In paragraph 16 the judge recounts the Appellant's girlfriend's evidence. "She said that she would go back with him to Zimbabwe if she had to." In paragraph 32(b) he makes a finding that she had indicated that she was prepared to go to Zimbabwe with him. The Appellant's girlfriend knew at the hearing that she was pregnant. Nevertheless, she indicated that she was prepared to go to Zimbabwe with the Appellant. I find that the Appellant's girlfriend stated at the hearing that she was prepared to go to Zimbabwe with the Appellant, and she gave this evidence knowing that she was pregnant.

14. Therefore I find that, even had the judge made a finding that the Appellant's girlfriend was a few days pregnant, this would not have affected the finding in paragraph 32(b) that she was prepared to return to Zimbabwe with the Appellant. The Appellant has not challenged this finding in the grounds of appeal and neither did he do so at the hearing before me. I therefore find that the error is not material, as a finding that the Appellant's girlfriend was pregnant would not have affected the finding that the Appellant's girlfriend was prepared to go to Zimbabwe, and would therefore not have changed the outcome of the appeal.

Decision

15. The decision does not involve the making of a material error of law and I do not set it aside.

16. The decision of the First-tier Tribunal stands.

17. I do not make an anonymity direction.

Signed Date 27 October 2016

Deputy Upper Tribunal Judge Chamberlain