Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21241/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 3 April 2017
On: 19 April 2017

Before
Deputy Upper Tribunal Judge Mailer

Between
Mr Kunie Samson Oluwole
no anonymity direction made
Appellant
and
secretary of state for the home department
Respondent
Representation
For the Appellant: Mr D Coleman, counsel (instructed by Paul John & Co)
For the Respondent: Ms A Fijiwala, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Nigeria, born on 14 March 1983. His appeal against the decision of the respondent dated 27 May 2015 refusing his application to remain in the UK on the basis of his family life with his wife and a son from a previous relationship, was dismissed by the First-tier Tribunal Judge in a decision promulgated on 1 October 2016.
2. The appellant contended that his wife’s son regards him as his father. He began cohabiting with his wife when her son was about a year old. Her child had no contact with his father.
3. The Judge found that the appellant had not established family life with the child [26]. He had not proved that he had a genuine and subsisting parental relationship with him as the requirements of paragraph 6 of the Rules had not been met [36].
4. On 13 February 2017, Upper Tribunal Judge Rintoul granted the appellant permission to appeal on the basis that it is arguable that, following R (on the application of RK v SSHD [2016] UKUT 00031, the Judge misdirected himself at [35-36] in concluding that the parental relationship could only apply when the definition of “parent” within the rules is met.
5. At the hearing before me on 3 April 2017 the parties agreed that there had been an error of law. The Judge had not had regard to the relevant guidance in the respondent’s IDI as to what constitutes a “genuine and subsisting parental relationship” for the purposes of Appendix FM of the Immigration Rules, and in particular paragraph EX.1 in respect of leave sought as a partner or parent.
6. At paragraph 11.2.1, the guidance noted that the phrase “genuine and subsisting parental relationship” with the child goes beyond the strict legal definition of parent reflected in the definition in paragraph 6 of the Rules, to encompass situations in which the applicant is playing a genuine parental role in the child’s life, whether that is recognised as a matter of law or not.
7. That means that an applicant living with a child of their partner and taking a step-parent role in the child’s life could have a “genuine and subsisting parental relationship” with them even if they had not formally adopted the child, but only if the other biological parent played no part in the child’s life.
8. In the circumstances, the parties submitted that the decision should be set aside and remitted to the First-tier Tribunal for a fresh decision.
Assessment
9. On the basis of the authority and the guidance referred to, I find that there has been an error on a point of law. I accordingly set aside the decision of the First-tier Tribunal.
10. I am satisfied that the effect of the error has been to deprive the appellant of an opportunity for his case properly to be put and considered by the First-tier Tribunal. I was informed that there would also be a substantial amount of fact finding that would have to be made.
Notice of decision
The decision of the First-tier Tribunal Judge involved the making of an error on a point of law. It is accordingly set aside and remitted to the First-tier Tribunal, (Taylor House) for a fresh decision to be made before another Judge.
No anonymity direction is made.

Signed Date 14 April 2017
Deputy Upper Tribunal Judge C R Mailer