Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number IA/19360/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
6th February 2017
On 7th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE RIMINGTON

Between

Mrs Ngozi Comfort Madjery Chikezie
(aNONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K Tobin instructed by Casa UK
Te Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION AND REASONS

The Appellant
1. The appellant appeals, with permission, against the decision of First-tier Tribunal Judge M A Khan who dismissed her appeal against the Secretary of State’s refusal of her human rights claim. The appellant is a Nigerian national born on 23rd September 1975 and she claims to have entered the UK illegally in 1991. She asserts she met her partner in 2011 and they stated living together on 20th July 2012 and had entered a proxy marriage on 18th May 2013. On 21st April 2015, the respondent refused her application on the basis that she had not entered a valid marriage and she and her partner could relocate. The Secretary of State made a decision to remove her under Section 47 of the Immigration Asylum and Nationality Act 2006.
2. The appellant was granted permission to appeal on various grounds which included that (i) the judge assessed the evidence of the relationship whereas the refusal took issue with the validity of the marriage only, (ii) the judge erred in his assessment of the evidence and failed to consider adequately the documentary evidence or the oral evidence, (iii) Moreover there were numerous factual errors.
3. Ms Tobin outlined those factual errors and added that the judge had made no finding with respect whether the marriage was valid or otherwise and failed to make relevant findings in relation to Paragraph 276ADE.
4. Mr Tufan conceded that the decision contained factual errors but asserted that findings had been made with respect to Paragraph 276ADE.
Conclusions
5. It is clear from the decision that there were errors of fact. At the very first paragraph the judge’s recorded ‘He made a number of applications to remain in the UK as tier 4 Student Migrant’. That was specifically contested as not being correct. ‘He’ was ‘she’ and ‘she’ had not made a number of Tier 4 applications. At the final paragraph [47] the judge refers to the appellant’s marriage ending in divorce. It was denied that it had ever been the case that the appellant entered on the ‘basis of marriage but that marriage ended in divorce’; these facts were incorrect. This calls into question the care and attention paid to the overall analysis of the facts and whether the judge had assessed the matter on the basis of the correct facts or had taken into account irrelevant evidence.
6. At paragraph 37 the judge records when referring to a witness’ evidence, records ‘she came here in 1997 or 1997’ – he presumably meant 1996 or 1997. That may be a slip but, unfortunately, the errors mature in their gravity. At [40] the judge notes that the ‘evidence suggests that she was in the UK in 1998’ but at [42] records
‘The appellant claims to have lived in the UK since 1991 but there is no evidence of her entry. Her right to private life of 8 years in this country has to be balanced with the respondent’s right to maintain effective immigration controls’.
The judge is correct in that legally a balancing exercise needed to be undertaken but the judge needed first to decide whether she had been in the UK for 8 years or 18 years. Once again this may have been a typographical error but it is, in my view, overly optimistic to be certain that it was.
7. The judge needed to decide the position with respect to the validity of her marriage, and the length of time the appellant had been in the UK in order to make a valid assessment under Appendix FM and Paragraph 276ADE respectively. He then needed to consider why there were compelling circumstances to consider the matter outside the Rules factoring in the reasons why the appellant, if the appellant did, had failed to meet the Immigration Rules.
8. There was considerable documentary evidence which was not addressed and the judge needed to address it even if to demonstrate why it was dismissed. I have not sought to elaborate of the nature of that error because of my findings in relation to the errors of fact which were material to the outcome of this decision.
9. The decision contains errors of law central to any assessment under the Immigration Rules and under Article 8. The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). Bearing in mind the factual errors which are fundamental to the nature and extent of the findings to be made the matter should be remitted to the First-tier Tribunal under section 12(2) (b) (i) of the TCE 2007 and further to 7.2 (b) of the Presidential Practice Statement.

Signed Helen Rimington Date 6th March 2017

Deputy Upper Tribunal Judge Rimington