Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19341/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 March 2017
On 20 April 2017

Before

UPPER TRIBUNAL JUDGE ESHUN

Between

Victor [O]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms C Charlton, Counsel
For the Respondent: Mr N Bramble, HOPO

DECISION ON ERROR OF LAW
1. The appellant is a citizen of Ecuador born on 1 June 1979. His appeal against the respondent’s refusal to grant him leave to remain in the UK under Article 8 of the ECHR and outside the Immigration Rules on the basis of exceptional and/or compelling circumstances was dismissed by First-tier Tribunal Judge Amin.
2. The respondent noted the appellant’s claim to have entered the UK in January 2001 using a false Spanish passport in the name of Jose [B]. The appellant had provided no evidence of this.
3. In terms of suitability under S-LTR.1.1, the respondent noted that on 16 March 2015 the appellant was convicted of possession/controlling an identity document with intent. He was sentenced to imprisonment of six months, wholly suspended for eighteen months and a requirement to undertake unpaid work for 120 hours.
4. The respondent decided that in view of the appellant’s claim to have entered the UK illegally using a false passport in 2001, along with his claim to have been residing in the UK under an alias, and his recent conviction, his conduct was such that it was undesirable to allow him to remain in the United Kingdom. He therefore fell for refusal under S-LTR.1.6.
5. The respondent then considered the appellant’s claim to be in a relationship with his partner, [JF] whom he claims to have met in 2011 and became a couple in December 2011. The respondent also considered the appellant’s claim that he has a relationship with HIS partner and her daughter [A]. She did not accept that the appellant has developed such strong bonds with the child that his removal from the UK would amount to unjustifiably harsh consequences for her, or be severely detrimental to her wellbeing.
6. The respondent noted that the appellant had provided various documents in the name of Jose [B], but said he had provided no formal evidence of identity to show that he and Jose [B] are one and the same person.
7. The judge dismissed the appellant’s appeal following consideration of the evidence. Her findings and conclusions are to be found at paragraphs 18 to 49.
8. I find that the judge made material errors of law. In particular, at paragraph 16, 30 and 33, the judge referred to the fact that the appellant’s conviction was for possession of controlled drugs in 2015. Miss Charles said that at the hearing below, she had a discussion with the judge about the appellant’s conviction. She had informed the judge that the appellant was not convicted for possession of controlled drugs in 2015; his conviction was for possession of a false identity document. In spite of this, the judge seems to have it into her mind that the appellant was convicted for possession of controlled drugs in 2015, even though this conviction did not exist. I do not accept Mr Bramble’s argument that even though the reference to possession of controlled drugs was a mistake, we could overlay that by reference to the offence for which he was convicted, which was possession of a false identity document. I find that one reference to the conviction for possession of controlled drugs might be considered a mistake but, two further references to the offence which did not exist, and for which he was not convicted, indicated a lack of care on the part of the judge. I also find that because the judge had the drugs conviction in the fore front of her mind, it tainted her consideration of proportionality and also her consideration of the public interest in the appellant’s deportation.
9. The error in respect of his conviction was compounded by the judge’s finding at paragraph 46 that the appellant was to be returned to Jamaica.
10. There is a third material error of law which is this. The judge expressed her doubts about whether the appellant’s relationship with [JF] was genuine, but at paragraph 40, the judge accepted that the appellant has established a family life in the UK with his partner and [A]. The two findings are contradictory.
11. In the light of these material errors, I find that the judge’s decision cannot stand. It is set aside in order to be remade.
12. The appeal is remitted to Hatton Cross for rehearing by a First-tier Judge other than FtTJ Amin.
No anonymity direction is made.

Signed Date: 18 April 2017

Upper Tribunal Judge Eshun