Tribunal decisions

The decision

IAC-AH-SAR-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18604/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 8th March 2017
On 29th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

Mr m i q
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
or the Appellant: Mr N Karnik, Counsel
For the Respondent: Mr G Harrison, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Pakistan born on 2nd May 1981. He claims to have entered the UK on 23rd April 2006 with entry clearance as a spouse valid until 8th April 2008. He was subsequently granted discretionary leave until 18th March 2015 on the basis of his relationship with his daughter Miss A I Q. By Notice of Refusal the Appellant’s further application for leave was refused by the Secretary of State on 5th May 2015. The Appellant failed to provide sufficient documentary evidence from official sources to show that he still had access rights and regular contact with his daughter. Therefore after reviewing the Appellant’s application for discretionary leave the Secretary of State was not satisfied that the grounds upon which the Appellant was previously granted discretionary leave still persisted and the application for further discretionary leave was refused.
2. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal V Jones sitting at Birmingham on 3rd December 2015. In a decision and reasons promulgated on 29th December 2015 the Appellant’s appeal was dismissed under the Rules and on human rights grounds.
3. The Appellant appeared in person before the First-tier Tribunal. On 21st January 2016 he made handwritten application for leave to appeal to the Upper Tribunal. Permission was refused by First-tier Tribunal Judge Holmes as the grounds, as drafted, did not identify any arguable error of law and they were an attempt to offer new evidence to a position that did not exist at the date of the hearing and to re-argue the appeal upon that new evidence. In addition, Judge Holmes was not satisfied on the balance of probability with the explanation offered for why the appeal was lodged out of time.
4. Thereafter, it seems clear that the Appellant instructed legal representatives and on 24th June new Grounds of Appeal were submitted to the Upper Tribunal. On 2nd August 2016 Upper Tribunal Judge Canavan granted permission to appeal. Judge Canavan noted that whilst many of the judge’s findings were likely to be open to her to make, it was at least arguable that the judge provided insufficient reasons to explain why she placed weight on the letter from the Appellant’s former partner in relation to the issue of contact with the child when, even on the judge’s own findings, the evidence was likely to be unreliable in relation to her claims about the nature of the Appellant’s current relationship. Ultimately, Judge Canavan considered that the point might not be found to have made any material difference to the outcome of the appeal but it was sufficiently arguable to warrant further consideration at a hearing.
5. On 12th August 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24.
6. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by his instructed Counsel Mr Karnik. The Secretary of State appears by her Home Office Presenting Officer Mr Harrison.
Submissions/Discussion
7. Mr Karnik submits that the grant of permission turns on the judge’s reasoning in this matter and centres on paragraphs 22, 23, 25 and 28 of her decision. Reference is made by him to the letter written by Mrs A to the Home Office on 26th February 2015 to state that the Appellant had had no contact with his daughter since 2012, had not been supporting her and was giving false information in order to remain in the UK. He submits that the manner in which paragraph 23 thereafter of the judge’s decision is written, asks for speculation about a letter that he did not write, and on the basis of that speculation the judge has wrongly doubted the Appellant’s credibility. He acknowledges at paragraph 29 the judge was satisfied on the balance of probabilities that there was a genuine and subsisting relationship between the Appellant and Ms N. The judge further notes that the Appellant in support of his application had produced some photographs of himself and his daughter and that all were taken between one and five years ago before the Appellant moved to London.
8. He points out that it is accepted that the Appellant’s partner has a disabled son. He submits that the needs of that child create an insurmountable obstacle which is not addressed by the judge. He asked me to find that the judge’s analysis is wrong and that there are material errors of law and to remit the matter back to the First-tier Tribunal for rehearing.
9. Mr Harrison starts by taking me to the Rule 24 reply, pointing out that the First-tier Tribunal Judge made clear findings from paragraph 29 onwards addressing both aspects under the appeal, being the Appellant’s contact with his daughter and his current relationship with Ms N. He submits that the judge has considered all the evidence and then makes a finding that he is not satisfied that the Appellant is in a genuine parental relationship with his daughter and that he gives extensive reasons. He points out that there has been no application made for a contact order and that the decision is silent as to whether the Appellant’s marriage has been formally ended. In any event, he points out that that is not the main thrust of the judge’s decision and that the judge has gone on to consider Section 55 and addressed issues of dependency at paragraph 36. He asked me to find that there are no material errors of law in the decision of the First-tier Tribunal Judge and to dismiss the appeal.
The Law
10. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
11. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge’s factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge’s assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
12. The first thrust of both the Grounds of Appeal and Mr Karnik’s submissions centre on a suggestion that the judge has given undue weight to a letter written to the Home Office by the Appellant’s spouse back in February 2015. I find as a matter of fact that such contention is not borne out. Firstly, at paragraph 23 the judge has indicated that she asked each of the witnesses why, if it were untrue such a letter would be written, and that the Appellant was unable to give an explanation and Ms N submitted the reason was jealousy. This is not a finding made by the judge, the judge asked a perfectly reasonable question and found the explanation lacked credibility particularly, as she points out, the Appellant himself had volunteered no explanation for the letter. Further, it is noted at paragraph 19 that Mrs A would allow limited access to the Appellant’s daughter and evidence was provided of how such contact had taken place. The judge considered all the evidence that was produced with regard to the purported contact and at paragraph 30 made findings that she was not satisfied on the balance of probability that the Appellant had a genuine and subsisting parental relationship with his daughter. I do not need to recite paragraph 30, suffice to say that I have read it and that therein the judge gives full and detailed reasons as to how she reaches that decision. Despite Mr Karnik’s detailed submissions I find the judge has given full reasons as to why the relationship between the Appellant and his daughter was not genuine, and that there is no conflict when assessing the evidence set out at paragraph 28 with the findings made at paragraph 30.
13. Further, the judge has at paragraph 29 made clear findings regarding the Appellant’s relationship with Ms N. She has gone on at paragraph 36 to acknowledge the position with regard to Ms N’s adult son and has emphasised the process the parties may go through if the Appellant wishes to return to Pakistan and make an application for entry clearance to join Ms N under the Rules. Within paragraph 37 the judge has quite properly considered the issue of public interest and it is not challenged that she has given due and proper consideration under Article 8 to the basic principles set out in Razgar and to the matters to be considered in Section 117B of the 2002 Act.
14. This is a judge who has given very careful consideration to the issues that were before her and has made findings of credibility based on the evidence that she heard. Her decision does not disclose any material errors of law. She has made findings that she was entitled to and the submissions made on behalf of the Appellant amount to little more than an attempt to re-argue the case. In such circumstances, the Appellant’s appeal is dismissed and the decision of the First-tier Tribunal Judge is maintained.
Notice of Decision
The decision of the First-tier Tribunal Judge contains no material error of law and the Appellant’s appeal is dismissed and the decision of the First-tier Tribunal Judge is maintained.
The First-tier Tribunal Judge granted the Appellant anonymity. That anonymity direction was continued by Upper Tribunal Judge Canavan when granting permission. No application is made to vary that order and I continue it.
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 24th March 2017

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD
No application is made for a fee award and none is made.

Signed Date 24th March 2017

Deputy Upper Tribunal Judge D N Harris