Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23322/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 December 2016
On 14 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

VICTORMILLS [L]
(anonymity directioN NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss G Brown, Counsel
For the Respondent: Miss A Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal from the decision of First-tier Tribunal Judge Watson promulgated on 5 April 2016. The appellant is a citizen of Nigeria and in June 2015 a decision was made by the respondent refusing his application to remain in the United Kingdom. He appealed from that refusal and the matter duly came before Judge Watson.

2. The key issue with which Judge Watson had to deal concerned the child of a relationship which was then extant, who was then some 2 years of age. The relationship between the mother of the child and the appellant had broken down.

3. The judge at paragraph 5 records the appellant's case as follows:

"He is a devoted father to his young daughter who was born in the United Kingdom. She has the right to grow up knowing him. He has a child arrangement order that sets out that he shall have agreed contact with his daughter. He owns property in the United Kingdom and has a business and is not dependent on the state at all. The Family Court has clearly indicated that it is in the daughter's best interest that he have contact with his daughter and therefore his application should be granted."

4. The judge took the view that the partner route under the Immigration Rules was not open to the appellant but went on to consider whether it was appropriate, having regard to the paternal relationship, for the appeal to be allowed on human rights grounds.

5. The difficulty is this: the judge records at paragraph 21 that there was minimal contact between the appellant and his daughter. The judge effectively draws an adverse conclusion from the fact of minimal contact and reading between the lines implies that this was through disinterest or a lack of fatherly concern for his infant daughter's wellbeing.

6. The case seems to have been advanced (and there is some support for this in the appellant's witness statement dated 12 February 2016 which was before the First-tier Tribunal) on the basis that the reason why contact between father and daughter was relatively infrequent was because the mother was working to frustrate the arrangement. Although one order in the Family Court left the issue of contact to be decided between the parents, another order expressly prescribed that contact take place on a Saturday afternoon.

7. The issue of whether the lack of contact with the daughter was occasioned by the father's lack of interest or the mother's frustration of the order of the Family Court was a highly relevant and material consideration, and from the face of the decision, the judge did not engage with that consideration at all. The judge seemed to come to the conclusion that the proportionality argument under Article 8 militated against the father because of the nature of the relationship as it was perceived to be between himself and his daughter. Were it to be the case that the mother had actively stood in the way of contact taking place, that would certainly throw a different complexion on the matter and it is perhaps significant that when granting permission to appeal in this case Upper Tribunal Judge McWilliams very much focused upon that aspect of the grounds.

8. Entirely sensibly, Miss Brocklesby-Weller who acts for the respondent accepts that there are difficulties with this decision and the fact that there is significant confusion in the way in which the judge dealt with the reason why contact was spasmodic.

9. In all of those circumstances this amounts to a material error of law and the matter must be remitted to the First-tier Tribunal to be looked at afresh.

10. I am informed that the Family Court is due to conduct a final hearing on the issue of contact (to the extent that any order in the Family Court is final) and that is scheduled to take place in January 2017. It would be helpful to the First-tier Tribunal Judge who will hear this matter to have the outcome of the Family Court matter determined before making a decision on the immigration issues. This appeal is allowed and the matter will be remitted for a re-determination.

Notice of Decision

(1) This appeal is allowed and the decision of the First-tier Tribunal is set aside.

(2) The matter will be remitted for a re-determination in the First-tier Tribunal by a judge other than Judge Watson.

Signed Mark Hill Date 13 December 2016

Deputy Upper Tribunal Judge Hill QC