Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17674/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 March 2017
On 14 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

mr olajide durosomo
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms N Bustani, Counsel instructed by Universe Solicitors
For the Respondent: Mr P Armstrong, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the appellant against a decision of the First-tier Tribunal dismissing the appellant’s appeal against the respondent’s decision to refuse his application for leave to remain.
2. The appellant is a citizen of Nigeria who was born on 26 June 1987. He entered the UK as a student on 2 April 2009 with a valid visa subsequently extended to 30 July 2012. On 26 June 2012 he applied for further leave to remain in the UK as the spouse of a settled person. This was granted on 7 February 2013 valid to 7 February 2015. On 5 February 2015 he applied for indefinite leave to remain in the UK outside the Immigration Rules as the partner of a British citizen. On 28 April 2015 the respondent refused his application because the appellant could not meet the requirements for indefinite leave to remain based on his previous leave and previous marriage. The respondent considered that the appellant fell for refusal because of his criminal convictions. The respondent considered the appellant’s application outside the Immigration Rules based on family and private life. That application was rejected under the partner route because the respondent considered that the parties were not in a genuine and subsisting relationship and did not intend to cohabit together permanently in the UK. The respondent also considered that the appellant had failed to demonstrate an active role in the upbringing of his wife’s child.
The appeal to the First-tier Tribunal
3. The appellant appealed against the respondent’s decision to the First-tier Tribunal. First-tier Tribunal Judge Rosemary Bradshaw dismissed the appellant’s appeal in a decision promulgated on 23 September 2016. The First-tier Tribunal found that the appellant’s relationship with his wife, Adebimpe Oluwatoyin Olateju - a British citizen, was not genuine and subsisting with an intention to live together permanently. The judge also found that the appellant did not have a genuine and subsisting parental relationship with his wife’s child. The judge found that the appellant has no family life in the UK so as to engage Article 8 and that no evidence had been produced of a private life established in the UK.
The appeal to the Upper Tribunal
4. The appellant applied for permission to appeal to the Upper Tribunal against the First-tier Tribunal’s decision to the Upper Tribunal.
5. The grounds of permission set out two bases for the appeal. The first was that First-tier Tribunal Judge Bradshaw’s conduct at the hearing was capable of causing an objective bystander to believe that she was biased and as a result it cannot be said that the appeal was procedurally fair. The second ground of appeal was that the judge’s findings were unsustainable. It is asserted that the judge failed to take into consideration documentary evidence when considering the genuineness of the appellant and his wife’s relationship. It is also asserted that the judge failed to give reasons as to why she found that the appellant does not have a parental relationship with his wife’s child.
6. On 27 January 2017 First-tier Tribunal Judge Page granted permission to appeal. Permission to appeal was granted in respect only of ground 2.
The hearing before the Upper Tribunal
7. Ground 2 of the written grounds asserts that there was considerable extensive and cogent written documentary evidence demonstrating cohabitation. The evidence shows that the appellant had been living at Flat 2, Coney Mews, from mid 2014 and had been residing at Flat 3, Citadel Court from 2015. The judge failed to note that the documentation is addressed to each and/or both of them for both addresses. The judge does not note that the appellant and his wife have joint bank accounts. It is asserted that the judge’s finding that “in a genuine relationship bills are joint even if paid by one party” was not open to her. It is also asserted that the judge erred in making factual findings that were not supported by the evidence. In oral submissions Ms Bustani submitted that there is little reference made to the written documentation. There is considerable evidence that post summer 2014 the appellant and his wife lived at the same address. She submitted that whilst the judge was entitled to reject that evidence there has been a failure by the judge to engage with the evidence and to explain why she (if she did so) rejects that evidence. She submitted that the sole reason that the judge rejected the evidence as to the relationship the appellant has with his wife’s son is on the basis that she did not find that the relationship with his wife was subsisting. She referred to two letters that were before the First-tier Tribunal Judge that clearly indicated that the appellant was considered by the child’s nursery to be a stepparent and that he regularly dropped him off and picked him up. There was a letter from the speech therapist that set out that not only was the appellant actively engaged in the therapy for the child but that he had an understanding of the child’s communication needs. The judge simply rejected this evidence on the basis that it was not set out how the speech therapist was aware of that.
8. Mr Armstrong submitted that the judge considered all the evidence before him and that it was a well-reasoned determination. He referred to paragraph 26 and submitted that based on that paragraph neither the appellant nor the wife knew very much about each other and therefore the judge’s conclusions were ones that were open to him. He referred to paragraph 27 and submitted that the judge was entitled to place little weight on the document because there was no name provided to demonstrate that the school were referring to the appellant as the stepparent. He referred to paragraph 31 and submitted that if the appellant is not in a relationship with his wife it is understandable that the judge would find that he has no parental relationship with his wife’s son. He referred to the refusal letter and that the appellant as a result of criminal convictions was refused leave. He submitted that the findings of the judge that the appellant was not credible were clear findings that were open to the judge. He submitted that the appellant’s grounds were no more than a disagreement with the findings of the judge.
9. Ms Bustani in reply submitted that surely a joint bank account must be relevant evidence. She referred to paragraph 21 of the First-tier Tribunal’s decision where the judge sets out a number of pieces of evidence but what is notable by its absence is that the joint bank accounts are not mentioned. Clearly the judge must not have considered these as relevant. These were important documents along with the documents that demonstrated both parties were resident at both addresses over a considerable period of time.
Discussion
10. The First-tier Tribunal Judge set out at paragraph 10:
“10. I have taken into account all the evidence and submissions but I will only record information relevant to the matters in issue and the decision I have to make.”
11. A judge does not have to set out the entirety of the evidence that has been taken into account. However, in this case it is clear that the judge has indicated that there is an intention to record information relevant to the matters in issue. At paragraph 21 the judge did set out specific details of some of the evidence:
“21. In support of the application they produced, in addition to bank statements, BT bills in his name at 3 Citadel Court, a Tax Credits notice showing payment into her TSB Bank (but no statements for this account), her Student Finance details, medical records, details of HB and CT bills and undated photos.”
12. Although the judge has referred to bank statements she has not set out as relevant the fact that there are bank account statements held jointly by the appellant and his wife and neither does she refer to any other documents such as the Kent registration letter confirming the marriage ceremony addressed jointly to the appellant and his wife. Whilst it was open to the judge to reject that evidence it is not clear that the judge has in fact taken all of the evidence into consideration as she appears to only set out a small portion of the evidence as relevant. With regard to the two letters in respect of the appellant’s son, the judge has given a reason for rejecting that evidence. At paragraph 27 the judge sets out:
“27. So far as the relationship with Byron is concerned the appellant said that he takes him to school and picks him up every now and then. I noted the letter dated 13/05/16 from the speech therapist who states that the appellant attends appointments with Byron and has been involved in supporting Byron at home but she does not say how she knows this aspect. Byron’s nursery refers to the appellant as a step dad and states that he quite often drops him off and collects him.”
13. At paragraph 29 the judge concluded:
“…I was not satisfied as to the genuineness of the relationship between the appellant and his spouse nor that it could be said to be subsisting with an intention to live together permanently. Having made that finding as to the relationship element then the claimed relationship with [B} is undermined and the appellant cannot satisfy the Rules so far as the parent route is concerned. I do not accept on balance that the evidence shows that the appellant has a genuine and subsisting parental relationship with [B and has had an active role in his upbringing. The appellant claims that they are very close but by his own account his input both physically and financially is slight.”
14. The letter from the speech therapist sets out “Mr Durosomo demonstrates a good understanding of [B’s] communication needs and is able to provide relevant and appropriate information”. It is clear from this letter that the speech therapist would only have this information from her own assessment of the appellant’s understanding of the child’s communication needs rather than from information provided by the appellant.
15. The judge found that the appellant on his own account his input both physically and financially with the child is slight. The judge recorded at paragraph 27 that the appellant said that he takes him to school and picks him up every now and then. In his witness statement at paragraph 10 the appellant stated that he had developed a very strong relationship with [B] and at paragraph 20 that he takes him to school, attends speech therapy with [B} and that he looks up to him as a father and good role model. His wife in her witness statement said that the appellant has taken over the care of [B] so that she can attend university, that he read him bedtime stories, takes him to football and on educational excursions. So whilst it is correct that the appellant’s financial support is limited the appellant’s own account was not that his input physically is slight.
16. The judge had the benefit of seeing the appellant and his wife first hand in order to assess their evidence and to make findings as to what she accepted. There was clearly evidence that the judge expressed concerns about and was entitled to reject. I do not wish to go behind the judge’s assessment of the credibility of the witnesses. However, it is not clear from the decision that the judge took all the relevant evidence into consideration. When contrasting the judge’s overall findings with the documentary evidence I consider that the judge has failed to give adequate reasons as to why she has rejected the evidence, particularly in relation to cohabitation and the relationship with the appellant’s wife’s child.
17. For the above reasons I find that there is a material error of law in the First-tier Tribunal’s decision. I set aside that decision pursuant to section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 (‘TCEA’).
18. I considered the Practice Statement concerning transfer of proceedings. I am satisfied that the nature and extent of judicial fact finding that is necessary in order for the decision in the appeal to be re-made is such, having regard to the overriding objective, that it is appropriate to remit the matter to the First-tier Tribunal. I remit this matter to the First-tier Tribunal to be heard at Hatton Cross on the next available date before any judge other than Judge Bradshaw.
19. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.

Notice of Decision
The decision of the First-tier Tribunal contained a material error of law. The case is remitted to the First-tier Tribunal for a de-novo hearing to be heard at Hatton Cross before any judge other than Judge Bradshaw.

Signed P M Ramshaw Date 14 March 2017

Deputy Upper Tribunal Judge Ramshaw