Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21550/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 2 November 2016
On 4 November 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

I S
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr B Criggie, of Hamilton Burns, WS, Solicitors
For the Respondent: Mrs M O'Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS)
1. The appellant appeals against a determination by First-tier Tribunal Judge Clough, promulgated on 25 May 2016, on these grounds:
(i) The judge concluded (paragraph 23) that the appellant did not make an application for leave to remain as a parent, but was now in a position to apply under the rules both as a parent and as a partner (paragraph 25). The appellant made such an application in January 2015 and at that time and on the evidence at his appeal hearing met the requirements of the rules - E-LTRPT.2.2 and EX.1 in relation to his son. The judge erred by failing to make any finding on the application of appendix FM.
(ii) The judge failed to consider the best interests of the child of the appellant, which at no point in the decision are taken into account.
(iii) The judge gave no consideration to the impact a decision would have on contact proceedings ongoing at Kilmarnock Sheriff Court. She was referred to the relevant case law, but made no finding on the question of whether the appellant should have discretionary leave while his contact action was ongoing.
(iv) The decision lacked sufficient reasoning in relation to the application of appendix FM and article 8 ECHR. No findings were made regarding the appellant's relationships with his son or the sun, his partner. This overlooked the 360 pages of evidence filed by the appellant including a detailed bar report on the relationship between the appellant and his son. "To dismiss the appeal in the space of 5 [short] paragraphs containing no real reasoning or concrete findings (beyond an incorrect finding that no valid application for leave as a parent had been made) means the determination is flawed".
2. The respondent conceded that the grounds show errors of law, such that the decision must be set aside.
3. The respondent indicated that further evidence was likely to be tendered at a fresh hearing. The appellant did not seek to submit that a fresh decision could be reached without a fresh hearing. Parties agreed that should be in the FtT.
4. While I do not make any directions or restrict the scope of the fresh hearing, it may be useful to record that although the decision appealed against is based on there being no evidence that the appellant's son is a British citizen, the respondent accepts that there is now, on the evidence produced in the FtT, no reason to doubt that the child has that status.
5. The case seems likely to focus on the provisions of EX.1 (a) of Appendix FM (reflected in section 117B(6) of the 2002 Act); most particularly, on whether the appellant is in a genuine and subsisting parental relationship.
6. The decision of the first-tier Tribunal is set aside. None of its findings are to stand. The nature of the case is such that it is appropriate in terms of section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 to remit the case to the First-tier Tribunal for an entirely fresh hearing.
7. The member(s) of the first-tier Tribunal chosen to consider the case are not to include Judge Clough.
8. The FtT made an anonymity direction, not on application but because the case involved a child. The matter was not addressed in the UT, so that order is preserved. 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 his 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.

2 November 2016
Upper Tribunal Judge Macleman