Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/17802/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 March 2017
On 9 March 2017

Before

UPPER TRIBUNAL JUDGE WARR

Between

Secretary of State FOR THE HOME DEPARTMENT
Appellant
and

peter oshioma eleta
(NO ANONYMITY DIRECTION)
Respondent

Representation:
For the Appellant: Mr P Nath, Home Office Presenting Officer
For the Respondent: Ms A Childs, of counsel, instructed by, Peer & Co Watford

DECISION AND REASONS

1. This is the appeal of the Secretary of State but I will refer to the original appellant, a citizen of Nigeria born on 27 February 1979, as the appellant herein.

2. The appellant arrived in this country with entry clearance as a visitor on 8 July 2013 with leave to remain until 10 October 2013. He applied for leave to remain on the grounds of family life with his partner and as a parent. This application was refused on 5 May 2015. It was the Secretary of State’s case that on 13 March 2015 the appellant had been requested to provide results of DNA tests with his 2 children in the United Kingdom and he had failed to comply with the request. Accordingly the appellant failed to meet the suitability requirements set out at S-LTR. 7.(c).

3. The appellant appealed against the decision and his appeal came before a First-tier Judge on 1 April 2016.

4. The judge heard oral evidence from both the appellant and his wife who were cross-examined. The judge found it unnecessary to recite the evidence as he considered that the case turned on a short and narrow issue. The question was whether the appellant’s application deserved to be refused under the immigration rules. It was provided that an applicant “will be refused limited leave to remain on grounds of suitability if any of paragraphs S-LTR. 1.2 to 1.7 apply.” The judge considered that this suggested that if any applicant fell within any of the provisions of S-LTR. 1.2 to 1.7 then refusal of the application was mandatory. It was the Secretary of State’s case that the applicant had failed without reasonable excuse to comply with a requirement to “provide physical data” under S-LTR. 7. (c).

5. The Judge continued:
“13. Without taking issue with whether DNA test results fall within the definition of “physical data”, the first interesting question that comes to my mind is whether there has to be reasonable basis for making such a request or can the Secretary of State arbitrarily or whimsically make such a request.
14. In my view it is well-established jurisprudence that when exercising powers either under the Immigration Rules or the statute, the Secretary of State must act reasonably. Therefore when requesting the DNA evidence, the Secretary of State must have a reasonable basis for so doing.
15. In this case the basis for making the request appears ostensibly some doubt [sic] as to whether the appellant is the father of the claimed British Citizen children. If that is genuinely the underlying reason for making the request, then in my view it was reasonable. However I find that there were at least two reasons why the Secretary of State did not entertain a genuine doubt as to the paternity of the two British Citizen children. I say this because she could not on the one hand have had doubts about whether the appellant was the father of a British Citizen and at the same time said that she accepted that the appellant had a genuine and subsisting parental relationship with the children (see page 3 of the refusal letter) and on page 5 of the refusal letter she again repeated that it was noted that the appellant had a British Citizen wife and children.
16. For the reasons given above, I find that the Secretary of State did not genuinely believe that there was any doubt that the appellant had two British Citizen children and therefore the request to him to provide DNA evidence was unreasonable. If as I find it to be, that the request itself was unreasonable then the exercise of the power to make the request was in my view unlawful; it must follow from this that the appellant should not be penalised for failing to respond to the request.”
6. The judge went on to find that there was a burden on the Secretary of State to show that there had been a request to provide “physical data.“ The judge noted that there was a letter dated 13 March 2015 in the Secretary of State’s bundle which the appellant denied receiving. He asked the presenting officer whether there was any evidence that the letter in question had in fact been posted. After the hearing 3 pages of screenshots of Home Office computer records were submitted. One extract read “… considering the App’s immigration history -see above- the birth dates of the two children… whilst it is not impossible for him to be the biological father, it is not unreasonable to request DNA tests for both children have therefore requested this ...”

7. The judge was unable to find any indication that the letter in question had in fact been posted.

8. Surprisingly, having directed himself at some length that the burden of proof lay on the Secretary of State, the judge commences paragraph 25 of his decision with the words “having found that the burden of proof is on the appellant…”

9. However the judge went on to find that if he had been wrong in finding that the burden of proof was on the Secretary of State and it was in fact on the appellant to prove he did not receive the letter, the evidence he had heard from the appellant and his wife would have discharged that burden.

10. The judge noted that after the refusal the couple had undertaken DNA tests and the results showed that the appellant was the biological father of the children. The determination concludes:
“27. If as I find it to be that the appellant did not receive the DNA letter then it must follow that he cannot be penalised on suitability grounds.
28. The respondent has not taken issue with the appellant’s ability to satisfy the substantive requirements of the immigration rules. In this circumstance there is no other issue from me to adjudicate on.”
11. The judge accordingly allowed the appeal.

12. Grounds of appeal were settled on behalf of the Secretary of State. It was argued that the Tribunal “appears to have tied itself into knots trying to establish that the SSHD was not entitled to request DNA evidence in the way she did.” Reference was made to paragraph 15 of the decision where it had been found that the Secretary of State was entitled to make the request providing it was reasonable but it was submitted that this should not be a concern for the tribunal. The findings about the evidential burden in paragraphs 19 and 20 were irrelevant.

13. In paragraph 3 of the grounds it was submitted that the finding that the appellant did not receive the letter was a separate question. The Tribunal should simply remit the matter for further consideration by the Secretary of State.

14. Permission was granted by the First-tier Tribunal on 30 January 2017. If the appellant had not received a letter requesting DNA evidence the matter should have been remitted to the Secretary of State rather than allowed outright. The grounds were arguable.

15. At the hearing counsel relied on her skeleton argument in which she had referred to Muhandiramge (section S-LTR.1.7) [2015] UKUT 00675 (IAC) on the burden and standard of proof and submitted that the First-tier Judge had no power to remit the appeal as the respondent had suggested in the light of what was said at paragraph 24 of Greenwood (No. 2) (para 398 considered) [2015] UKUT 00629 (IAC). She submitted that the Secretary of State’s appeal should be dismissed.

16. Mr Nath submitted that the respondent had not acted unreasonably in requesting DNA evidence. There was no reason notwithstanding Greenwood why the matter could not be put back before the respondent to decide afresh.

17. Counsel submitted that the First-tier Judge had been entitled to take into account the DNA evidence and make findings as the primary decision maker. There was no reason to send the matter back.

18. At the conclusion of the submissions I reserved my decision. I remind myself that I can only interfere with the determination if it was materially flawed in law.

19. The grounds criticise the judge for his approach to the issues before him. Essentially the case turns on the fact that the First-tier Judge was not satisfied on the evidence that the Secretary of State had proved the request for DNA evidence had been sent and was further not satisfied that the appellants had received the request.

20. I do feel that the judge did not properly address the question of reasonableness; the judge in fact reproduces the respondent’s explanation in the Home Office computer records. Further the appellants appear to have complied with the request after the decision. There is no evidence the request was irrational or unlawful.

21. However, the simple answer to this case is that the judge found that the appellant had not received the request and had he received it he would have furnished the evidence which he in fact subsequently did. The judge does not appear to have focussed on the words at the start of paragraph S-LTR. 1.2 to 1.7 “The applicant has failed without reasonable excuse to comply with a requirement to …(c) Provide physical data.” If the request is not received then it would follow the applicant had a reasonable excuse. There was no need to go into the questions that exercised the First-tier Judge.

22. I note the Home Office was represented at the hearing before the First-tier Judge and the new DNA evidence was available at that hearing. Counsel advises that the analysis was conducted by an approved provider. The Presenting Officer did not take issue with the new evidence or request an adjournment.

23. The judge records in paragraph 28 that the Secretary of State had not taken issue with the appellant’s ability to satisfy the substantive requirements of the immigration rules. This is not the subject of challenge in the grounds of appeal. The grounds seek remittal to the Secretary of State. As counsel points out, remittal is no longer an option.

24. Having carefully considered the matter there does not appear anything more for the Secretary of State to consider. The judge was apparently satisfied by the evidence that had been lodged that the parties were related as claimed and that on his findings it is clear the appellant had a reasonable excuse for non-compliance.

25. The decision was not vitiated by a material error of law and accordingly the Secretary of State’s appeal fails and the decision of the First-tier Judge stands.

Appeal dismissed
Anonymity Order
The First-tier Judge made no anonymity directions and I make none.
Fee Award
The First-tier Judge made a fee award which stands.

Signed Date 7 March 2017

G Warr
Judge of the Upper Tribunal