Tribunal decisions

The decision

IAC-fH-nl-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/19978/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 February 2017
On 24 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

C D E
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms I Mahmud instructed by Fletcher Dervish & Co Solicitors
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by a citizen of Ghana born on 5 May 2002. I do make an anonymity order given the age of the Appellant. She applied for leave to remain on Article 8 grounds. That decision was refused by the Respondent on 14 May 2015 and the appeal against that decision was heard on 10 August 2016.
2. The brief background to the appeal is that the Appellant first came to the United Kingdom as a visitor on 15 July 2009 in order to visit her great aunt. The visit visa was issued valid from 3 August 2009 until 3 February 2010. The Appellant arrived and subsequently returned to Ghana within the currency of that visa. On 11 July 2013, a second visit visa was applied for on her behalf and this was issued valid from 23 July 2013 until 23 January 2014. The Appellant entered the United Kingdom on 12 August 2013 and thereafter overstayed beyond the terms of the visa. An application was made on 12 February 2014, on the basis that the Appellant is a dependent child of her mother and that application was refused on 20 March 2014 and, following an application for judicial review and a reconsideration by the Respondent, the decision of 14 May 2015 was issued.
3. At the appeal before First-tier Tribunal Judge Hodgkinson, the Appellant and her stepfather, Mr W attended. An application was made for the appeal to be adjourned on the basis that the Appellant's mother was unable to attend as she was ill on the morning of the hearing. It was submitted that the mother's evidence was crucial and that in the interests of justice it was necessary to adjourn. The Appellant's then representative, Mr Nawaz, stated at [17]:"the role of the appellant's biological father, Mr E in Ghana was in dispute, that it was the appellant's position that she had no ongoing involvement with him and that the appellant's oral evidence could address that issue". This application was opposed by the Respondent's representative and at [19] of the decision Judge Hodgkinson declined to grant the requested adjournment, finding at [19] "I was satisfied that the oral evidence of the Appellant's mother would add nothing material to the evidence which is currently available and which would be available via the oral evidence of the Appellant and Mr W." The judge then went on to hear evidence from the Appellant and Mr W and to dismiss the appeal.
4. An application for permission to appeal to the Upper Tribunal was made in time on 9 September 2016. The grounds in support of the application were essentially concerned with the issue of procedural fairness resulting from the judge's failure to adjourn the appeal in order that the Appellant's mother might attend and give evidence. Reference was made to the Upper Tribunal decision in Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC) at [7] and [8].
5. Permission to appeal was granted on 29 December 2016 on the basis that it was arguable that in light of the issues it was procedurally unfair to proceed in the absence of the Appellant's mother.
6. At the hearing before me I heard submissions from Ms Mahmud on behalf of the Appellant and Mr Kotas on behalf of the Respondent.
Decision
7. I find that the judge did err materially in law in proceeding with the appeal in the absence of the Appellant's mother due to her sickness on the morning of the hearing. It is clear from the judge's decision that he took points adverse to the Appellant in circumstances where had the Appellant's mother been present the matters could have been put to her and addressed by her, in particular the following:
7.1. At [42] the judge states that it was obviously
"the intention of the appellant's mother that the appellant come to the United Kingdom, ostensibly as a visitor, but with the real intention of settlement. I find such deception to be a factor of relevance to my assessment of proportionality";
7.2. At [43]:
"it is the appellant's case that she has not had any meaningful contact with her father since shortly after her birth, but the respondent's position is that such is untruthful".
7.3. At [47] the judge noted that money transfer receipts had been provided as
"purported evidence of the appellant's mother having provided some financial support to the appellant" and he went on to state "I do not know who X, Y or Z are". I note in passing that these are the names of the persons to whom the money was sent.
7.4. At [48] the judge held:
"There is no evidence at all from the appellant's school or schools in Ghana, first to indicate who has paid the appellant's school fees over the years or, second, to indicate that the appellant's father in Ghana has not been involved with the appellant or, third, that the appellant's mother has had any contact or involvement with the appellant's school in Ghana"
7.5. And at [50] the judge made the finding:
"that the available evidence falls materially short of establishing that the appellant's mother was solely responsible for the appellant's upbringing in Ghana and, second, that there are any compelling family or other considerations which make the appellant's exclusion from the United Kingdom undesirable."
The judge went on to find that there was no reason why the Appellant could not return to Ghana and live with her father.
8. It is clear from the extracts from the paragraphs cited above that, in the absence of evidence from the Appellant's mother, the judge proceeded to make negative findings that went to the heart of this appeal. Given the very nature of the case concerned the family life that the Appellant has developed with her mother, her half siblings and her stepfather, the evidence of her mother both generally and specifically is clearly of paramount importance in a fair determination of this appeal. I find that proceeding in the absence of the Appellant's mother did result in procedural unfairness. I therefore remit the Appellant for hearing de novo before a First-tier Tribunal to be heard by a judge other than First-tier Tribunal Judge Hodgkinson.

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 their 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 Rebecca Chapman Date 23 February 2017

Deputy Upper Tribunal Judge Chapman