Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18786/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
on 29th November, 2016
and sent to typing.
Signed and sent to Promulgation
on 2nd February, 2017
on 8th March, 2017

Before

Upper Tribunal Judge Chalkley

Between

mr Arsene Lillian Mbassi
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr O’Odusanyo, solicitor with Gracefields Solicitors
For the Respondent: Mr Bates, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Cameroon, who was born on 13th August, 1987. On 30th April, 2015 the respondent refused to grant him leave to remain in the United Kingdom as the child of a person present and settled here. The appellant appealed to the First-tier Tribunal and his appeal was heard by First-tier Tribunal Judge Lal Paul on 7th December, 2015.

2. The appellant’s application had been for leave under paragraph 298 of Statement of Changes in Immigration Rules HC 395, as amended (“the Immigration Rules”). The judge found that the appellant did not meet the requirements of paragraph 298, because the appellant could not satisfy the requirements of paragraph 298(i)(c). The judge went on to consider the requirements of paragraph 297 of the Immigration Rules but, inter alia, found that the appellant could not satisfy the requirements of paragraph 297(v).

3. The judge further considered the appellant’s Article 8 human rights appeal and concluded that the appellant failed to satisfy the Immigration Rules. He considered Article 8, “at large” and reminded himself of SS (Congo) [2015] EWCA Civ 387. He went on to remind himself of the advice of the Supreme Court in ZH (Tanzania) [2011] UKSC 4 and in Zoumbas [2013] UKSC 0074. He took account of Section 19 of the Immigration Act amending the 2002 Act and noted that he did not find either the appellant or his father to be credible witnesses.

4. No evidence had been provided to the judge concerning the appellant’s mother’s status in France and the judge did not find it credible that the appellant had lost his passport in France. She noted that the appellant claimed that he had a bad relationship with his stepfather, but there was no other evidence about this, despite the fact that a statement could have been obtained from the appellant’s mother. The judge noted that the appellant was 18 years of age and in good health and that there was no reason why he could not return to France, if he had leave to remain there, or to return to Cameroon. He accepted that the appellant’s removal would interfere with his family life that he had enjoyed with his father and new family, but found there to be no reason why they could not continue their relationship with the appellant’s father visiting the appellant wherever he may be living and keeping in contact with him. Bearing in mind the public interest questions the judge found there to be no reason to believe that removal of the appellant would be anything other than proportionate.

5. The appellant sought and obtained leave to appeal. The grounds of appeal are poorly drafted. In granting leave First-tier Tribunal Judge Scott-Baker said at paragraphs 3 and 4:–

“3. The appellant had applied for indefinite leave to remain as a child. The First-tier Tribunal Judge noted that the appellant had entered the UK in July 2014 but failed to give adequate reasons in finding that the sponsor, the appellant’s father, had not had sole responsibility for him since that date.

4. At paragraph 54 and 55 of the determination the judge made reference to Section 55 of the Borders, Nationality and Citizenship Act 2009 but failed to make any findings in relation thereto.”

6. I heard submissions from the appellant’s solicitor at some length.

7. He told me that the appellant had previously lived in France with his mother and her new partner. The appellant had enjoyed a difficult relationship with the partner and eventually left his mother’s home and started living with friends. He then made his way to the United Kingdom, although Mr O’Odusanyo did not know how the appellant entered the United Kingdom. The appellant’s father had sole responsibility for the appellant between July 2014 and 11th February, 2015, when he made application under paragraph 298 of the Immigration Rules. Mr Bates interjected and pointed out that the appellant could not succeed in any event under paragraph 298, because he did not meet the requirements of paragraph 298(ii) namely, “has or has had limited leave to enter or remain in the United Kingdom …”

8. The appellant’s solicitor suggested that the judge had erred in considering paragraph 297(v), because incorrect figures had been used by the Secretary of State in calculating the income available to maintain the appellant in the United Kingdom, taking into account the father’s projected income and accommodation costs. At the hearing the appellant relied on an HM Customs & Revenue self-assessment, showing profit from his business of £9,295, rather than the £7,215 the appellant had indicated on his application form. The judge said that he found it more credible that the figures inserted on the application were correct and more than those contained in a later completed self-assessment, which had been completed once the applicant and his father knew the figure calculated by the respondent in April 2015 needed to be increased to meet their target figure of £333 per month.

9. He submitted that the judge had erred in considering Article 8, because he failed to make adequate findings in respect of Section 55 of the UK Borders Act. I pointed out to him that at the time of the hearing before the judge the appellant was an adult. He sought to persuade me that at the time of the hearing the judge should have considered the facts as they were as at the date of the Secretary of State’s decision. He relied on authorities for this, but the authority he relied on actually dealt with an Article 8 case where the appellant was outside the United Kingdom. It was pointed out to Mr O’Odusanyo that in an in-country Article 8 appeal the relevant date is the date of the hearing. As at the date of the hearing before the First-tier Judge the appellant was an adult. Mr O’Odusanyo then sought to persuade me that there were half-siblings of the appellant who would be affected by his removal and he drew my attention to the fact that copies of their birth certificates were included within the appeal bundle. I pointed out to him that there was no evidence to suggest that the appellant’s half-siblings would be affected adversely by the appellant’s removal from the United Kingdom and this was certainly not pleaded by the appellant’s Counsel at the hearing. I also pointed out that it was not a matter specifically referred to in his grounds of appeal which refer to the appellant and, “the best interests of the appellant child”.

10. Mr Bates invited me to dismiss the appellant’s challenge and uphold the judge’s decision. The appellant was 18 at the time of the hearing and it was clear from the determination in any event, that the judge did consider paragraph 276ADE and concluded that the appellant was not entitled to succeed under the Immigration Rules. He then considered the matter outside the Immigration Rules, but at paragraph 64 of the determination he went on to find that he accepted that the appellant’s removal would interfere with his family life that he enjoys with his father and his new family but, pointed out that there is no reason why they cannot continue their relationship with the appellant’s father visiting the appellant wherever he may be living and keeping in contact with him using various methods of communication. He submitted that the judge had clearly not erred and in any event the appellant was now an adult. The judge was entitled to consider the appellant’s immigration history.

11. Paragraph 298 of the Immigration Rules could not be met because the appellant could not meet paragraph 298(ii). He entered the United Kingdom illegally, Mr Bates told me. Paragraph 297 could not be met for the reasons the judge sets out in paragraphs 37 and 38. The judge did consider the timing of the new evidence in the form of the Customs & Revenue self-assessment and was entitled to find as he did.

12. I reserved my decision.

13. In respect of the first matter on which the appellant has been granted leave, there is clearly no error. The appellant could not meet the requirements of paragraph 298(ii) and nor, on the judge’s findings, could the appellant meet the requirements of paragraph 297(v). At paragraphs 37 and 38 the judge said this:–

“37. At the hearing, Mr Harris argued that incorrect figures had been used and directed me to consider the figures appearing at pages 50A–D. This shows profit from self-assessment at £9,295 for the tax year 2014–15 on the applicant’s father’s HMRC self-assessment. This figure also appears on the tax credits calculation for the tax year 2015–2016 (page 53) as the tax credits are calculated using the income from the previous tax year. It was submitted that the figures used by the respondent in her Reasons for Refusal Letter were the previous year’s income figures, namely £7,215 (page 46). Mr Harris submitted that the difference between £9,295 and £7,215 needed to be divided by twelve and then added to the monthly figure calculated by the respondent. It was his submission that this would add a further £189 to the monthly figure of £299.50 which would take the appellant’s father over the requisite sum of £333 and lead him to satisfy para 298(v).

38. I do not agree with this. I have compared the figures in the appellant’s application form (A4) and he clearly states that his income is £601.25 per month, which equates to £7,215 per annum. The application form was completed in February 2015, and so I find that the appellant’s father would have a good knowledge of his income per month in the tax year 2014–2015 at this point in time. I find it more credible that the figures inserted in the application form are correct than a later completed self-assessment, once the appellant and his father knew that the figure calculated by the respondent in 2015 needed to be increased to meet their target figure of £333 per month. I do [not] place weight on a self-assessment produced after the date of decision without any supporting documents. Accordingly I found the calculation in the Reasons for Refusal Letter is correct and the appellant does not satisfy paragraph 298(v).”

14. The judge was entitled to conclude as he did. He found both the appellant and his father not to be credible. He gives clear and logical reasons for finding as he did.

15. So far as the appellant’s second challenge is concerned, it is a fact that as at the date of the judge’s decision, the appellant was not a child but an adult. It was never suggested to him that the best interests of the appellant’s half-siblings required that the appellant should remain in the United Kingdom and there was certainly no evidence adduced to should that the appellant’s removal would cause them any hardship at all. The judge did carefully consider the appellant’s Article 8 rights and concluded, as he was entitled to, that the decision to remove the appellant was proportionate. The judge was entitled to take into account the appellant’s immigration history, the fact that he is of good health and now aged 18 years. The First Tier Tribunal Judge was obviously clearly concerned as to the evidence he heard, having found that neither the appellant, nor his father were credible witnesses. The judge quite properly took into account Sections 117A, 117B, 117C and 117D of the 2002 Act.

16. I have concluded that the determination of Judge Lal Paul did not involve the making of an error on a point of law. His decision shall stand.

SUMMARY

The decision of the First Tier Tribunal Judge did not involve the making of an error of law. The decision shall stand.

No anonymity direction is made.

Richard Chalkley
A Judge of the Upper Tribunal