Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/22676/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 11th November 2013
On 15th November 2013

Before

UPPER TRIBUNAL JUDGE REEDS

Between

omer dirilmis
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: No appearance and no representation
For the Respondent: Mr I. Jarvis, Senior Presenting Officer

DETERMINATION AND REASONS

1. The Appellant seeks permission to appeal against the decision of the First-tier Tribunal (Judge Plumptre) who in a determination promulgated on 28th March 2013 dismissed the Appellant's appeal against the decision of the Respondent to refuse his application for leave to remain on human rights grounds under Article 8.
2. There has been no appearance or no representation on behalf of the Appellant at the hearing before this Tribunal. Before I deal with that issue, there is a substantial procedural history which is relevant to this appeal. It is as follows.
3. The Appellant is a citizen of Turkey born on 1st January 1981. He entered the UK illegally on 5th November 1999 and on 9th November lodged an application for asylum. The claim was considered, refused and certified on 18th June 2001. After lodging an appeal on 21st July 2001, which was heard by a judge on 19th May 2003 that application was dismissed on 5th June 2003. An application for permission to appeal to the Tribunal was lodged by the Appellant on 23rd June 2003, permission was granted and the appeal was heard on 2nd November 2004. On 17th December 2004 his appeal was dismissed it appears that he married Vija Balode, an EU national. On 12th January 2005 he sought permission to appeal to the Court of Appeal which was refused on 16th February 2005. In February 2005 he lodged an application for a residence card as the spouse of an EU national. On 16th March 2005, he was considered to have exhausted all rights of appeal.
4. In respect of the application made for a residence card, on 27th September 2005 he was issued with a residence card valid until 27th September 2010. It appears a further residence card was issued on 29th June 2006, valid until 29th June 2011 which superseded the original document.
5. On 27th September 2012 he was encountered by UK Border Agency's officers and served with an IS151A, notice of a person liable to removal. The evidence before the Tribunal was that the Appellant's wife returned to Latvia in 2008 and since that time has not lived with the Appellant nor has she exercised treaty rights in the United Kingdom. The Home Office have not been notified at any time of his wife leaving the United Kingdom.
6. Following the Appellant's arrest on 27th September 2012, his previous representatives made an application for leave to remain on 5th October 2012 under Article 8 of the ECHR on the basis of the private life he had established in the United Kingdom after thirteen years' residence and based on the family life that he had established with Miss Ali Arslan, it was asserted there was a genuine and subsisting relationship. The application was refused by the Respondent in a letter of 5th October 2012. It was this refusal that led to the proceedings before the First-tier Tribunal on 23rd January 2013 and 18th March 2013 before Judge Plumptre.
7. In a determination promulgated on 28th March 2013, the First-tier Tribunal (Judge Plumptre) dismissed the appeal under Article 8. It is apparent from that determination that the first hearing was on 23rd January 2013 but as a result of inconsistent material in a bail document, concerning the circumstances in which the Appellant and Miss Arslan met, the judge granted an adjournment in order that instructions could be taken as to how the information came to be included in the Grounds of Appeal when the information did not form part of the Appellant's instructions. Thus the appeal was part-heard for further hearing on 18th March 2013 (see paragraph 22 of the First-tier Tribunal's decision).
8. In the determination the judge reached a number of findings after having considered the evidence of the Appellant, his partner, medical evidence in respect of the Appellant's partner and a report from Miss Seymour, an independent social worker. She reached the conclusion ultimately that the decision to remove the Appellant was not a disproportionate one for the findings that she set out at paragraphs 39 to 69 of that determination.
9. The Appellant sought permission to appeal that decision and Counsel who represented the Appellant before the First-tier Tribunal settled the grounds for permission on 10th April 2013. There were four grounds set out in the application for permission.
10. On 22nd April 2013 permission to appeal was granted by the First-tier Tribunal (Judge Cruthers). He said this:-
"(1) By a determination promulgated on 28th March 2013, First-tier Tribunal Judge Plumptre dismissed the Appellant's appeal against a decision of the Respondent taken on 5th October 2012. Realistically this matter had been pursued only on the suggestion that the decision under the appeal represents a disproportionate breach of Article 8 of the ECHR. Having assessed the evidence the judge concluded that the appeal failed.
(2) I note that the five page document setting out the grounds on which the Appellant seeks permission to appeal was drafted by Counsel who appeared before the judge on 23rd January and 18th March 2013. I will summarise my assessment of that grounds document:
(a) Oddly, more than three complete pages of the document are simply narrative. The complaints about the determination, the judge's assessment only begin at paragraph 11 on the fourth page.
(b) As regards paragraphs 10 to 12 of the grounds ('failure to proffer enquiries in respect of facts which were material to the appeal'), it is probably unfortunate that the judge was not in a position to raise with the parties her concerns arising from the numerous different addresses appearing from the papers for the Appellant and his 'current partner', Miss Arslan - the judge recognised that herself at paragraph 42. However, it was the Appellant's/his representatives who had put in evidence the materials referred to in the judge's paragraph 41 - materials that undermined the Appellant's claims relating to the history of this claimed relationship with Miss Arslan.
(c) As regards paragraph 13, the judge did not say that there was no interference with the family life which is claimed to exist between the Appellant and Miss Arslan's son - at least, the judge did not say that at paragraph 47 (as paragraph 13 of the grounds alleged).
(d) I am concerned that the grounds may be contaminated by incorrect statements in at least paragraph 13 and paragraph 17. Paragraph 17 is concerned with what the judge said about the purported letters of the Appellant dated 5th July 2010 and 15th March 2011 copied at pages 60 and 61 (respectively) of his bundle. Contrary to paragraph 17 of the grounds, it does not appear to me that any response to those letters of 5th July 2010 and/or 15th March 2011 is to be found amongst pages A1 to E3 of the Respondent's bundle.
(e) - but what is in the Respondent's bundle (page C1) is a copy of the Appellant's letter dated 5th July 2010 which also appears at page 61 of his bundle. In those circumstances the judge's finding that the Appellant manufactured the letters at pages 60 to 61 is unlikely to be a sustainable finding. In the last analysis, it may be that any error here was not material (in the sense that it would not have altered the outcome of the appeal (see paragraph 10 of R (Iran)) but I cannot be sufficiently confident on the question of materiality to refuse permission here.
(f) There may also be an arguable point at paragraphs 13 and 14 of the grounds to the extent that the judge may not have sufficiently considered whether or not the decision under appeal is in the best of Miss Arslan's son.
(g) Similarly in relation to paragraph 15, it is arguable that the judge's analysis does not sufficiently factor in the claim that Miss Arslan is currently pregnant with the Appellant's child.
(3) Overall, there is sufficient in the grounds to make a grant of permission appropriate. But the Appellant should not take this grant of permission as any indication that his appeal will ultimately be successful. Apart from anything else, the Appellant has acquired criminal convictions in this country and his immigration history may fairly be described as chequered. There may also be considerable force in the points made by the judge in, for example, her paragraphs 63 and 64, (including the point that if Miss Arslan was to return to Turkey with the Appellant, that many of the risk factors that led to the success of Miss Arslan's asylum appeal would fall away)."
11. Following the grant of permission, a Rule 24 response was issued by the Secretary of State dated 8th May 2013 who sought to oppose the appeal noting in the response that the judge had made "clear and reasoned findings as to the evidence before her and was considering the Article 8 rights of the Appellant and Miss Arslan and the conclusions were open to her."
12. The case was therefore listed for hearing before the Upper Tribunal to resolve the issue as to whether or not the decision of the First-tier Tribunal disclosed an error of law. It is plain from the case file that the notice of hearing for 14th June 2013 was sent by first class post on 15th May 2013 to the Appellant's address at 56A Liptraps Lane, Tunbridge Wells, Kent. This is the address given on the application for permission to appeal the First-tier Tribunal decision under part A setting out the applicant's details.
13. The appeal came before Upper Tribunal Judge Renton on 14th June 2013. The determination is in the file of papers before this Tribunal. It is plain from the determination that the Appellant did not appear nor was he represented before Upper Tribunal Judge Renton. At paragraph 2 he recorded
"On that occasion there was no appearance by or on behalf of the Appellant. I decided to hear the appeal in the absence of the Appellant in accordance with Rule 38 of the Upper Tribunal Procedure Rules. I was satisfied that the Appellant had been notified of the hearing at his last known address in time, and that it would be in the interest of justice to proceed with the hearing."
Thus Judge Renton considered the grounds but found that there was no error of law disclosed from the determination of the First-tier Tribunal.
14. Following service of the determination upon the Appellant, an application was made for permission to appeal to the Court of Appeal by Geraldine Peterson, Counsel, who had previously been instructed on behalf of the Appellant before the First-tier Tribunal who was instructed by way of direct access by the Appellant. In that application, it was submitted that a procedural irregularity had occurred because the Appellant did not receive notice of the hearing and thus the determination of 4th July 2013 of Upper Tribunal Judge Renton should be set aside. It was further submitted that in the event that the decision should not be set aside under Rule 60, the Appellant would seek leave for an extension of time to submit further detailed grounds in respect of his appeal against the decision of UTJ Renton promulgated on 4th July 2013.
15. It is of significance that the grounds for permission to appeal set out that the Appellant's address is 56A Liptraps Lane, Tunbridge Wells. Appended to the grounds for permission to appeal to the Court of Appeal was a witness statement of the Appellant, again noting that his address was 56A Liptraps Lane, Tunbridge Wells. In that statement the Appellant sets out at paragraph 7 that he did not receive the notification of the hearing before UTJ Renton. It is claimed that it was not clear what address the Tribunal sent the notice to and the judge did not state the address in the decision.
16. A letter was sent to the Resident Judge at Field House (Resident Judge Southern) on 18th July 2013 by the Appellant himself from the address at 56A Liptraps Lane, requesting that the decision of Upper Tribunal Judge Renton be set aside under Rule 60 of the Procedure Rules so that he could be "properly represented at the rehearing of my appeal."
17. As a result of that application settled by Miss Peterson by way of direct access of the witness statement of the Appellant and the letter to Judge Southern the appeal was put before Upper Tribunal Judge King on 21st August 2013. In a notice dated 21st August 2013, Judge King sets out the history that I have set out earlier noting that it was
"the contention of the Appellant that notwithstanding his having received the First-tier Tribunal determination and the Upper Tribunal determination he did not receive the notification of hearing such as would lead him to attend the hearing on 14th June".
The judge went on to state at paragraph 11 as follows:-
"The Appellant maintains that the address was his address but is adamant that he did not for some reason receive the notification of hearing. The point is made by the Appellant that he had every intention of pursuing his appeal and seeks to remain with his partner and her young son. He was anxious to be represented by his barrister and therefore there was no reason at all for him not to have attended the hearing of the appeal had he known. An additional complication in the matter was his solicitors had removed themselves from the record and he had been instructing a barrister privately which is why he had used his address as the communication address. It is right to note from the file of copies of the notice of hearing that it is marked 'no representative'."
18. In those circumstances, Judge King ordered that representations for the parties are invited as to why the determination should not be set aside on the grounds of a procedural irregularity and fourteen days was given for representations to be made.
19. It does not appear that any representation were made on behalf of the Secretary of State because on 23rd September 2013 Upper Tribunal Judge King made the following order:-

"I have had no representations from either party.

In those circumstances I shall follow the course of action which I indicated that I would take in the notice, namely to set aside the decision of Upper Tribunal Judge Renton promulgated on 4th July 3012 arising from the hearing conducted on 14th June 2013.

The position therefore no remains as before the Upper Tribunal, permission to appeal having been given, that there be a hearing on the matter to determine whether or not First-tier Tribunal Judge Plumper erred in law in her approach or findings."
20. Thus the decision of Upper Tribunal Judge Renton was set aside and the matter was to be relisted. Directions were given as to filing of any further evidence or statements.
The hearing before the Upper Tribunal :
21. Thus the appeal came before the Upper Tribunal on 11th November 2013 and there was no appearance or representation on behalf of the Appellant for a second time. I have set out at some length the proceedings before the Tribunal including at each stage the address that has been given by this Appellant for address of service whether or not represented by solicitors or whether or not he has instructed Counsel by way of direct access. It is apparent from all of those documents that he has produced that the address that he has given as his home address is 56A Liptraps Lane, Tunbridge Wells. It is of significance as noted in the determination of Upper Tribunal Judge King that the Appellant had claimed that he had not received a notice of hearing when the case was before Upper Tribunal Judge Renton in June notwithstanding the fact that he had received the First-tier Tribunal determination at the address I have just given but also the Upper Tribunal determination.
22. I have carefully considered the case file and the history of this appeal. The notice of hearing that was sent to the Appellant for the hearing before Judge Renton was sent to his address at 56A Liptraps Lane, Tunbridge Wells on 15th May 2013. That is the address that the Appellant has always stated that he has lived at. There was no evidence attached to his witness statement in support of his claim that he had never received the notice of hearing other than his assertion that he had always sought to litigate this matter for the reasons that he gave. There was no evidence in support to show that there were any problems with post being received at his address particularly bearing in mind that the First-tier Tribunal determination was received by him as was the Upper Tribunal decision which he sought to set aside.
23. It is significant that when the Appellant wrote to the court stating that he had not received the notice of hearing but had received the determination of the Upper Tribunal (see paragraph 7) he accepted at paragraph 4 that his address was given as 56A Liptraps Lane. The witness statement also gives the address at 56A Liptraps Lane indeed that is the address given on all of the documents including the application for permission to appeal to the Court of Appeal and also the letter written to Judge Southern dated 18th July 2013 requesting that the determination be set aside.
24. Looking at the file for the present proceedings for 11th November 2013, again the notice of hearing was sent by first class mail to the address given by the Appellant on all of his documentation of 56A Liptraps Lane on 7th October 2013. There has been no further correspondence from the Appellant of any kind, either requesting from the Tribunal a hearing date, making any enquiries as to when the case was to be listed or any further correspondence giving any change of address. Consequently, I am satisfied that the notice of hearing has been served upon the Appellant at the address that he has notified throughout as his address and in those circumstances and applying the Upper Tribunal Procedure Rules I decided that I should hear the case in his absence.
25. Mr Jarvis appeared on behalf of the Secretary of State and relied upon the Rule 24 response dated 8th May 2012. He submitted that there was no error of law in the decision of the First-tier Tribunal. In respect of the ground asserting that the letters the Appellant produced were fabricated (see paragraph 17) he took the Tribunal through the documentation noting that the judge's findings in relation to those letters, when viewed in the round were properly open to her and that no error of law can be found in her approach. He further submitted that even if there was an error, it was not material in that the judge considered with care the Article 8 claim made by the Appellant and she did so without any obvious reference to the documents that she considered had been "manufactured" by the Appellant. She did not take against the Appellant on that basis and in a similar way did not take against him on the basis of his criminal conduct (see paragraphs 49 and 50) even though that was part of the Secretary of State's reasons. The judge therefore did not hold those matters against the Appellant. The judge had taken a very nuanced approach, and considered the nature of the relationship, the position of the Appellant, his partner and her child and considered the inconsistent and discrepant evidence that had been before her as a whole. Thus it was open to her to make the findings that she did on credibility and ultimately when carrying out the balancing exercise under Article 8.
26. As to the issue of whether or not he had established his family life at the time that it was precarious, the judge noted that the Appellant could not benefit from the Legacy Programme because he had exhausted all of his appeal rights and thus could not meet the criteria even if he had made such an application. Furthermore his wife who was an EU citizen had left the United Kingdom and he had not sought to communicate this to the Respondent in any way and thus in those terms his position was precarious he did not have any leave post 2011 in any event.
27. He submitted that this was a difficult case for the judge and that the judge considered and focused on all the important facets of Article 8 considerations. Mr Jarvis also made a point concerning the ground raised in relation to paragraphs 11 and 12 which was Ground 1, the failure to make proper enquiries in respect of facts which were material to the Appellant. In this respect Mr Jarvis relied upon the decision of the Court of Appeal in SSDH v Maheshwaran [2002] EWCA Civ 173 and relied upon paragraphs 4 to 6 noting that it was not incumbent of the judge to raise that issue with the Appellant or the Appellant's representative on the basis that there were obvious inconsistencies in relation to the evidence relating to the addresses and that as the Appellant was represented it was a matter for the representative to deal with. The judge cannot be criticised for her approach and nonetheless it only represented one finding. There are a number of findings made in this case relevant to the proportionality balance and it has not been determined that the judge had made an error of law in the approach that she had taken to proportionality and the issue of Article 8.
28. I reserved my decision.
The grounds:
29. There are four grounds advanced on behalf of the Appellant in the document filed on 10th April 2013. Whilst the application for permission to the Court of Appeal set out at paragraph 13 that leave was sought for an extension of time "to submit further detailed grounds in respect of this appeal" no further grounds have been forthcoming since 10th April or since the application before the permission to appeal to the Court of Appeal. Thus I consider those four grounds advanced in that permission application as they stand.
30. The first ground advanced on behalf of the Appellant is that it is asserted that the judge failed to make proper enquiries in respect of facts which were material to the appeal. It is said that the judge made findings that the Appellant's relationship was not of the duration the Appellant and his partner had stated primarily because there were different addresses on the documentation. At paragraph 42 the judge stated that she "unhappily" did not raise the concern with the Appellant but had reached the view on those documents that the addresses given demonstrate that they were not indicative of the Appellant and his partner living together as a family unit for as long as it had been claimed (see paragraph 42) of the determination. The grounds submit that the strength of the relationship between the Appellant and his partner and child was essential to the appeal and the failure of the judge to raise the concern which caused her to question the duration of the relationship was therefore a material error of law because it failed to give the Appellant the opportunity to provide a time line for his and his partner's addresses. Thus it was procedurally unfair.
31. Ground 2 asserts that the judge failed to consider properly the best interests of the child. Paragraph 13 of the grounds refers to paragraph 47 stating that the decision of the judge was that there was no interference of the family life which existed between the Appellant and his partner's son because he was not the natural father and the relationship was of short duration. It is asserted that the findings disclosed a "fundamental error of approach" and that the judge should have considered that the decision would interfere with the relationships as they currently existed. It was further submitted that Section 55 relating to the best interests of the child was not considered properly. At Ground 3 it was submitted that the judge failed in her assessment of the relationship between the Appellant and his partner, by focusing on the duration as opposed to the quality of the relationship. In this respect the quality of the relationship was underpinned by the fact that they were expecting a child which was not taken into account. The last ground relates to the failure to consider evidence relating to a factual issue. The judge determined that the strength of the relationships established between the Appellant and his partner and child fell away in the light of her finding that they had established the relationship whilst his immigration status was precarious (see paragraph 69). However the Appellant maintained that he had made an application to the Respondent after his EU citizen wife had left him (albeit wrongly to the CRD) in 2010 before his residence permit expired. He stated that until the refusal in 2012 he thought his application was still being considered by the UKBA. The finding made by the judge was that the letters were fabricated and this highly influenced her determination. However there were copies of a response to those letters from the Respondent in the bundle. Whether or not he had applied to the right department, there was evidence that when he met his partner he had an outstanding application for leave to remain. The judge failed to properly consider the evidence.
32. I therefore considered the grounds in the light of the determination of the First-tier Tribunal and the evidence that was before it.
A summary of the findings of the First-tier Tribunal:
33. The findings of the First-tier Tribunal (Judge Plumptre) are set out at paragraphs 39 to 69 of the determination. I shall deal with those findings in detail when considering the four grounds advance on behalf of the Appellant. In summary, the judge considered the nature of the relationship between the Appellant and Miss Arslan, who had arrived in the United Kingdom in January 2011 and had subsequently claimed asylum noting at paragraph 41 the judge made an assessment of the documentary evidence before her noting that they refer to a number of addresses and that that was not indicative of the Appellant and Miss Arslan living together as a family unit for the duration of time that had been claimed.
34. At paragraph 48 he took into account answers to questions that the Appellant had given on the family questionnaire which were inconsistent with the length of time that they had lived together and made further reference to those inconsistencies at paragraph 51.
35. The judge found that the Appellant could not meet the Immigration Rules indeed it was not submitted on his behalf that he could. The judge did not find that the Appellant's convictions which he considered to be minor had established that he should be removed on public interest grounds.
36. As to his immigration status and position in the UK, she found that the residence card had expired on 29th June 2011 and he had been in the UK thereafter without leave. At paragraph 52, his Latvian spouse had returned in July 2008 and the Appellant had never informed the Immigration Officers of this (paragraph 52). At paragraph 68, the judge found that he had shown disregard for the Immigration Rules and failed to notify UKBA of his Latvian spouse's return to Latvia in July 2008. At paragraph 45 she found that his immigration history was consistent with a determined attempt to remain in the UK and had noted that he had married Miss Balode at a time when his immigration status was precarious in fact he married her on the day his appeal was dismissed on 17th December 2004. She found also that he had made a successful application for a residence card in 2011 but it was clear from the divorce petition that Miss Balode had deserted him in July 2008 and had returned to Latvia. The judge expressly did not accept the evidence that he did not realise that her return to Latvia meant that he has no right to remain nor that he could not continue to work. The judge found nothing to suggest that the Appellant had ever informed UKBA of his spouse's return to Latvia and did not do so when writing letters at pages 60 and 61. Thus she also found that he entered the UK illegally in 1999 and found that he had manufactured letters to suggest that he had an outstanding claim with the Case Resolution Department (CRD) of the UKBA (the reasons given were at paragraphs 39 and 40).
37. As to Article 8, she accepted there was family life between the Appellant, Miss Arslan and the child Mehmet. She found that he was born in the UK and therefore Section 55 applied. She took into account that the child was not the Appellant's, that family life was of a short duration that was fragile and that he remained married to a Latvian national having only recently lodged a petition in January 2013 and there were "considerable emotional and practical hurdles in a relationship of short duration." The judge considered the evidence concerning the submission made on behalf of the Appellant that it would be a disproportionate interference with the Appellant's family life with Miss Arslan for him to return to Turkey given the nature of her mental health and her ability to care for Mehmet.
38. At paragraphs 58 to 59 the judge gave reasons as to why she preferred the evidence from Kent and Medway Social Services rather than the independent social worker and noted the inconsistencies between that evidence, she did not find it unreasonable that for the Appellant to return to Turkey and make an application to join his partner bearing in mind he had sold his business, was a fit and healthy male and had a wife in Latvia. She set out the law at paragraphs 61 and 62 applying EB (Kosovo) and did not find that there was more than a degree of hardship shown for the reasons given.
39. She accepted that it would be unreasonable to expect Miss Arslan to return to Turkey but with the proviso that the judge in her asylum claim found that she did not have any political profile but found that she would be at risk on return as an unmarried, unaccompanied Kurdish woman with a child born out of wedlock and that was the basis for her grant of asylum. Judge Plumptre was finding that it was not reasonable to expect her to go noted that she could choose to accompany the Appellant to Turkey as the risk factors found by the judge in the asylum claim would fall away because she would be returning with the Appellant.
40. She found the Appellant had not established more than a normal emotional tie between himself and his adult siblings and relatives (paragraph 65) and that he had divested himself of employment ties (paragraph 66). She considered also that he had social, cultural and family ties in Turkey (see paragraph 67) and that he had entered the UK illegally, shown disregard for the Immigration Rules since failing to notify UKBA that his Latvian spouse had returned to Latvia and that he had manufactured a letter to show that he had an outstanding CRD application. She also found that he had established family life at a time when his immigration status was precarious and that the strength of the public interest in his removal was an important factor even when balanced by the interests and the welfare of the child. Thus she found when making the proportionality factors found that the balance was in favour of the Secretary of State and that removal would not be a disproportionate measure.
Conclusions:
41. I now turn to the grounds. The ground relates to a procedural unfairness on the part of the judge that in reaching her findings the relationship was not of the duration that the parties had stated.
42. The Appellant's case was that Miss Arslan had arrived in the UK in January 2011 and they had become friends in February 2011 (see paragraph 18 of the determination). It was asserted that they had been living together since 13th October 2011 and that she had given birth to Mehmet on 22nd October (the Appellant is not Mehmet's natural father). It is plain from the determination that the judge made an assessment of the evidence. At paragraph 41 the judge said this:-
"41. I have considered the documents and the various addresses for the Appellant and his partner Miss Arslan. I note that the medico-legal report at page 13 dated July 2011 gave Miss Arslan's address at 79, The Broadway, Langton Green, Tunbridge Wells, that an NHS letter dated 2nd April 2012 at page 10 gave her address at Flat 3, 145 Upper Grosvenor Road, Tunbridge Wells, that a letter dated 27th November 2012 at page 41 gives her address as 58A Liptraps Lane, Tunbridge Wells and finally the tenancy agreement at pages 66 to 88 for Flat 3, 145 Upper Grosvenor Road, Tunbridge Wells. I note that this is also the address given on the birth certificate for the child Mehmet Arslan dated 22nd October 2011. The tenancy agreement gives the current address of both the Appellant and Miss Arslan as 52 Grosvenor Road, Tunbridge Wells. I note from page 76 that Miss Arslan did not sign this tenancy agreement and only the Appellant did so. The witness statement of both the Appellant and Miss Arslan give their address as 56A Liptraps Lane, Tunbridge Wells and at pages 1-8 which also applies to the additional witness statements at pages 8-13 of the Second Appellant's bundle although I note the manuscript alteration in relation to Miss Arslan's statement to give the address of 56A Liptraps Lane when it had been printed as Flat 3, 145 Upper Grosvenor Road, Tunbridge Wells. I note also the letter from the accountants at page 59 referring to acting for Mr Omer Dirilmis situated at 52A Grosvenor Road, Tunbridge Wells and is dated 8th October 2012.
42. Unhappily I was not able to put my concerns to the Appellant about these several different addresses because I did not appreciate that there were so many until I came to read the documents. I find that they are not indicative of the Appellant and his partner living together as a family unit for as long as has been claimed. ?"
43. I do not find that there has been any procedure irregularity that gives rise to any unfairness in reaching those findings. I reach that conclusion for the following reasons. The relationship and its duration was put in issue by the Respondent in the refusal letter of 5th October 2012 (see the Appellant's replies to the family questionnaire that he completed on 27th September 2012) and in the letter where it was noted the relationship was of short duration even if genuine and subsisting (see page 3 of 6). Thus the Appellant was on notice of the issue from the outset. The Appellant had provided those documents in the bundle and it is plain on the face of those documents that there a number of addresses that undermine the Appellant's claim as to the history of the relationship with Miss Arslan and their claim to have been living together since 13th October 2011. As submitted by Mr Jarvis on behalf of the Respondent, the decision of Maheshwaran (as cited earlier) makes it clear at paragraph 5 that:
"Where much depends on the credibility of a party and when that party makes several inconsistent statements which are before the decision maker, that party manifestly has a forensic problem. Some would choose to confront the inconsistencies straight on and make evidential or forensic submissions on them. Others will hope that 'least said, soon as mended' and consider that forensic concentration on the point will only make matters worse and that it would be better to try and switch the Tribunal's attention to some other aspect of the case. Undoubtedly it is open to the Tribunal expressly to put a particular inconsistency to a witness because it considers that the witness may not be alerted to the point or because it fears that it may have perceived something as inconsistent with an early announcer which in truth is not inconsistent. Fairness may in some circumstances require this to be done but this will not be the usual case. Usually the Tribunal, particularly if the party is represented, will remain silent and see how the case unfolds."
44. In this appeal, much did depend on the credibility of the Appellant and he was represented by Counsel and the issue of the genuineness of the relationship and its duration was put in issue plainly and clearly by the Respondent in the refusal letter of 5th October 2012. The Appellant himself had produced documents which had undermined his own case and whilst it is unfortunate that the judge did not put those documents to the Appellant, I do not consider that in the circumstances outlined above that it was incumbent upon her to do so. The requirements of fairness are very much conditioned by the facts of each particular case, and on the facts of this case and the issues as they were before the judge, I do not consider that there was any fairness or procedural irregularity has been established on the part of the judge.
45. Furthermore it is wrong to assert that this was the only evidence upon which the finding was made concerning the duration of the relationship. The judge at paragraph 48 and 51 took into account other evidence relating to this issue. At paragraph 48 the judge took into account a family questionnaire completed by the Appellant dated 27th September 2012. The summary was set out in the refusal letter and the accuracy of what had been stated had not been challenged during the hearing before the First-tier Tribunal. As the judge noted at paragraph 48:
"I give weight to the fact that although dated 27th September 2012 the Appellant stated that he had been cohabiting with Miss Arslan since she moved into his property five - six months ago which must be an inaccurate answer since all the evidence suggests that they moved to live together on 13th October 2011 given that the Appellant has adduced a tenancy agreement to that effect. I find this answer inconsistent with them having purportedly lived together for virtually one year. I find that there is nothing significant in his answer that the son Mehmet Arslan is 10 months old given that he was born on 22nd October 2011 and I do not hold this latter purported inaccuracy against the Appellant. However I find the reason for the Appellant not being able to give precise answers about Miss Arslan is because of the brevity of the relationship and the fact that there are so many addresses suggesting that they have not lived together as a couple for so long as claimed."
Thus it can be seen from paragraph 48 that the judge took into account when reaching her findings not only the inconsistent evidence as to the amount of addresses where the couple were living, but also the Appellant's failure to give answers concerning Miss Arslan and her son which, when viewed together, demonstrated that the relationship had not been of the duration or length or quality that was asserted on behalf of the parties. The types of questions that were set out in the family questionnaire were set out in the refusal letter and they made reference to the Appellant not knowing who Mehmet's biological father was, not being able to provide a full date of birth for Miss Arslan and when doing so gave the wrong year for her birth. The letter concluded that the Appellant was unable to provide basic information and that was not indicative of him having "knowledge of Miss Arslan's personal circumstances". For those reasons, I find that there is no procedural irregularity in reaching those findings as asserted in Ground 1. Ground 1 is not made out.
46. I now turn to Ground 2 which it asserted that the judge failed to consider the best interests of Mehmet. Contrary to the assertion made in the grounds at paragraph 13, the judge did not say that there was no interference to family life which existed between the Appellant, his partner and her son because he was not the natural father and the relationship was for short duration. That misreads the determination and is inaccurate as the grant of permission has identified.
47. The judge expressly found that there was family life between the Appellant, Miss Arslan and the child (see paragraph 57 of the determination) and also took into account the duty under Section 55 of the 2009 Act noting that Miss Arslan's son was born in the UK and Section 55 had been considered by the Secretary of State in the decision that was under appeal. It is plain from the determination that the judge in making an assessment of the best interests of Mehmet took into account a number of factors. They are as follows; he was born in the UK and therefore the Section 55 duty applied to him. Mehmet was not the child of the Appellant (presumably this is on the basis that the Appellant had no statutory responsibility or any parental responsibility for Mehmet), that the family life was of a short duration of seventeen months, and was a fragile one. This was based on the fact that Miss Arslan did not tell the Appellant that she had been raped in Turkey and given her fragile mental health (see paragraph 57). The judge found that he remained married to a woman in Latvia and found that there were "considerable emotional and practical hurdles in a relationship of short duration." In making an assessment of the evidence concerning the nature of family life the judge critically considered and assessed the evidence of the independent social worker Miss Seymour. The judge had earlier in the determination made a summary of her evidence and report at paragraphs 26 to 31. The judge also made a summary of the letters from the Kent and Medway NHS at paragraph 32. The judge's conclusions after considering those documents are set out at paragraphs 58 and 59. It is plain from the determination at paragraph 59 that the judge preferred the evidence from Kent and Medway NHS letters and reports rather than the report of Miss Seymour which was based on a two hour observation. The judge contrasted what had been said by Miss Seymour in the report as Mehmet being a "clingy and needy child" and concerns that he had not bonded well with his mother that was inconsistent with the evidence given by Kent and Medway NHS and Peter Knynenbug that baby Mehmet was doing well and that Miss Arslan had in fact bonded well with him. There were other matters listed at paragraph 58 which the judge found to be inconsistent with the information given by the NHS letters and reports. Those findings are entirely open to Judge Plumptre on the evidence that was based before her. There has been no challenge to those findings as they stand in any event. The judge went on to find that it was not unreasonable for the Appellant to return to Turkey to make an application to join his partner in the UK (see paragraph 60) and set out the applicable law by way of self direction at paragraphs 61 and 62 noting that an applicant must show more than a "degree of hardship". She also applied the jurisprudence set out in EB (Kosovo).
48. In drawing together all of those findings, it is plain from the determination that the judge did give sufficient regard to the best interests of Mehmet who was aged 1 year 5 months at the date of the hearing and it is plain from the determination that those best interests were for Mehmet to remain in the care of his mother given the fact that the Appellant had no responsibility for Mehmet, his very young age and that his ties and bonds were with his mother (based on the evidence from Kent and Medway NHS) and in view of the short duration of the relationship and the fragility of his mother. The judge, by preferring the evidence of Kent and Medway NHS did not attach weight to the assertions made by the independent social worker concerning Miss Arslan's inability to form a bond with her son due to her medical problems (see paragraph 31) and the finding that Mehmet in fact was doing very well and that Miss Arslan had bonded well with her son (see paragraph 58). In doing so, the judge considered the quality of the relationship between the adults and the child concerned but reached the conclusion that it would not be unreasonable in those circumstances for the Appellant to return to Turkey and make an application to re-enter as her partner. The judge gave a number of reasons for reaching that view based on the Appellant's circumstances, namely that he was fit and healthy, the relationship was of a short duration, mother had bonded well with Mehmet, that he had strong ties in Turkey including his parents and a network of support on return. Those are balanced against the countervailing factors also identified at paragraph 69 in which the judge found that the strength of public interest in the Appellant's removal was an important factor "even when balanced by the interest and welfare of the child Mehmet Arslan". Thus it is plain that when the determination is read as a whole, the judge firmly had in mind the best interests of Mehmet and the nature of the relationship when reaching her findings. There is no error of law disclosed in Ground 2.
49. As to Ground 3, I find no error in that ground either. The preceding paragraphs make it clear that the judge did not solely focus on the duration of the relationship but also other factors when reaching her decision on the proportionality balance. Whilst there was no express reference as to the fact that Miss Arslan was pregnant, it was plainly in the contemplation of the judge and that is clear from paragraph 23 when it is recorded that Miss Arslan was now pregnant. This fact by itself does not alter the range of factors that the judge considered were weighing at the various factors that she had identified that were relevant to the proportionality balance. The grounds do not demonstrate that that led to any error in the overall balancing factors identified by the judge.
50. I now turn to Ground 4. In doing so I should set out the judge's findings as to the Appellant's immigration status and his time in the UK generally. She found that he could not meet the Immigration Rules. There is no dispute between the parties that the Appellant was unable to meet the Immigration Rules as they stood. As to his position in the UK and his immigration status the judge noted at paragraph 68 that the Appellant had entered the United Kingdom illegally concealed in the rear of a freight lorry. The history demonstrates that there were a number of applications and appeals against the original decision in 2001 none of which were successful. The judge found that his residence card had expired on 29th June 2011 and he had been in the UK without leave thereafter. At paragraph 52 the judge noted that his Latvian spouse had returned to Latvia in July 2008 and the Appellant had never informed immigration officials of this fact. At paragraph 68 she found that the Appellant had shown disregard for the Immigration Rules and had failed to notify UKBA that his Latvian spouse had returned to Latvia in July 2008. At paragraph 45 she found that the Appellant's immigration history was
"consistent with determined attempts to remain in the United Kingdom. I note he married Miss Balode an EU national at a time when his immigration status was precarious as his appeal was dismissed the day of his marriage i.e. 17th December 2004. He made a successful application for a residence card which was issued on 27th September 2005 valid until 27th September 2010 which for some reason was reissued and valid until 29th July 2011. However it is clear from part 6 of the petition for divorce at page 47 that Miss Balode deserted the appellant in July 2008 and returned to Latvia. I do not accept his evidence that he did not realise that her return to Latvia meant that he had no right to remain, nor that he could not continue to work. There is nothing to suggest that the appellant ever informed UKBA of the return to Latvia of his EU wife, and he did not take the opportunity to do so when writing the letters at pages 60-61."
The judge also makes a finding that he had manufactured letters to suggest that he had an outstanding CRD application and the reasons were given at paragraphs 39 to 40.
51. Thus it can be seen that there are a number of findings concerning his immigration status based on his history in the United Kingdom. The grounds do not take issue with all of those findings but only refer to the findings of the judge concerning the letters at pages 60 to 61 which the judge found at paragraph 39 to have been manufactured by the Appellant in an attempt to suggest that he had an outstanding claim with the Case Resolution Directorate ("CRD").
52. The grounds as drafted are in error. Paragraph 17 of the grounds concern the letters exhibited at pages 60 to 61 and states that "there were copies of a response to these letters from the Respondent to the Appellant in the Respondent's bundle". However as the grant of permission states, it does not appear that there were any responses to those letters found in the Respondent's bundle at pages A1 to E3.
53. Careful consideration should be given to the documents and the findings made by the judge. There was a letter exhibited at B1 which had been sent to the Appellant dated 8th June 2010 referring to the cases in the backlog and that the Case Resolution Directorate were responsible. The letter is simply a request for information and nothing more than that. It does not say that an application has been made or that any form had been sent. It is plain that the judge found the Presenting Officer's submission at paragraph 40 that this letter had not been issued bearing in mind the contents of B1, to be a "surprising one". However the judge considered the letters at pages 60 and 61 in the light of the contents of the documents themselves and the document at B1 and the document exhibited at C13 of the Respondent's document (erroneously referred to as page 13 by the judge).
54. The document at page 61 is dated 5th July 2010 the Appellant's address is given as 58 Liptraps Lane and refers to a CRD form being filled in and signed with documentation . At page 60 there is a further letter purportedly from the Appellant dated 15th March 2011 setting out that further documents were sent by him and address given in March 2011 is the same address as the document at page 61 namely 58A Liptraps Lane. However the judge made a comparison with those two documents with a document at C13 of the Respondent's bundle (erroneously referred to as page 13 at page 40 of the determination). C13 of the Respondent's bundle was a document dated 1st July 2010. The Appellant had stated in it "I am writing to confirm that I reside at 52A Grosvenor Road ?" the judge made the point that on 1st July 2010 (letter exhibited at C13) that he is telling the Home Office that he lived at 52A Grosvenor Road whereas four days later on 5th July 2010 (see page 61) he allegedly wrote to the Home Office concerning the CRD application giving an address at 58 Liptraps Lane. The judge did not find it plausible nor credible that the Appellant would write to UKBA with two letters and two different addresses within five days of each other. In those circumstances she found the documents at pages 60 and 61 had been manufactured to suggest that he had an outstanding claim with the CRD. As she said at paragraph 40, the two letters have been produced in an attempt to rebut the third paragraph of the refusal letter on 5th October 2012 which recorded that the Respondent have no trace of an application and if the Appellant had proof of such an application, further consideration would be given. The judge took into account the letter stating that information was requested but did so in the context set out at paragraph 44 that he found the Appellant never had an outstanding CRD application because it was
"clear from his immigration history that he would not be entitled to such an application since his asylum appeal was certified on 18th June 2001 and his appeal heard and dismissed by an Immigration Judge on 19th May 2003 and dismissed on 5th June 2003 and that although he succeeded in the grant of permission to appeal his appeal dismissed on 17th December 2004 and permission to appeal to the Court of Appeal was refused on 15th February 2005. Thus on 16th March 2005 he was deemed appeal rights exhausted in respect of an asylum claim. Thus for these reasons he would not fall within the Legacy Programme because his asylum appeal had been resolved."
Therefore whilst the Respondent may have written to him in 2010, the judge did not accept that the Appellant had responded by the writing of the letters at pages 60 and 61 but had manufactured those letters (that the judge found to be inconsistent with the contents of another document at C13) solely to attempt to rebut the third paragraph of the refusal letter. Those findings were entirely open to the judge to make on the evidence that was before her and no error of law is disclosed by her consideration of those documents as a whole.
55. Whilst the judge made reference to the Appellant's immigration state as "precarious" when he began his relationship with Miss Arslan, based on those findings, it was open to the judge to reach that conclusion as the Appellant did not have any leave nor was there any application outstanding. Even if were right that he had made such an application, I do not find that it is material to the outcome as it has not demonstrated that there would be any other outcome on the findings of fact made in relation to his immigration history as a whole. The judge made a number of findings concerning his immigration history which I have set out earlier and in particular the concern raised concerning his Latvian wife who had left the country in 2008 and that the judge had expressly found that she rejected his evidence that he did not realise her return to Latvia meant that he had no right to remain or that he could not continue to work. The judge balanced the public interest or the countervailing factors in relation to this case and was entitled to reach the conclusion that the history of the immigration status as a whole was relevant in the balance. Consequently I do not find that it has been demonstrated that the determination of Judge Plumptre discloses any material error of law and that to the contrary this was a careful and considered determination dealing with unsatisfactory evidence. Consequently I find no error of law has been made out and the determination shall stand.
Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law. The decision shall stand.

Signed Date: 13/11/2013

Upper Tribunal Judge Reeds