Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23808/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 11 April 2017
On 20 April 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

ebrima kinteh

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Khan of SMK Solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The appellant is a citizen of the Gambia who was born on 21 October 1988. He entered the United Kingdom on 23 May 2009 as a visitor with leave valid until 25 September 2009. Thereafter, the appellant overstayed. During his time in the UK, the appellant formed a relationship with a British citizen, Ms S Jones. She gave birth to twins on 3 October 2014. The children are British citizens and the appellant is named on their birth certificates as their father.
2. At some point, the appellant’s relationship with his partner broke down and on 10 December 2014, she married another person.
3. The appellant entered into a contact agreement with Ms Jones to share parental responsibility for the children dated 3 December 2014.
4. In April 2015, Ms Jones and the two children left the UK and lived in the Gambia. They returned to the UK, it appears, in June 2016.
5. On 25 January 2015, the appellant made an application for leave to remain based upon Art 8 and, in particular relied upon his relationship with the two children. On 25 June 2015, the Secretary of State refused that application.
The Appeal to the First-tier Tribunal
6. The appellant appealed to the First-tier Tribunal. The appeal was heard by Judge Coaster on 5 July 2016. That, as the above chronology shows, was shortly after the sponsor’s now ex-partner and the two children returned from the Gambia. At that hearing, the appellant gave evidence and relied upon three statements made by Ms Jones dated 4 December 2015, 22 April 2015 and 16 June 2016. However, Ms Jones did not attend the hearing to give oral evidence. The appellant’s explanation for that was that she was ill.
7. Judge Coaster dismissed the appellant’s appeal under Art 8. First, she was not satisfied on the evidence that the appellant had a “genuine and subsisting relationship” with the children. That was a requirement which he had to establish under the ‘parent’ route for leave in Appendix FM by virtue of R-LTRPT.1.1.(d) under para EX.1. Further, the judge was not satisfied that the appellant had established that he continued to play “an active role” in their upbringing as required by E-LTRPT.2.4.(b).
8. In reaching her adverse findings, Judge Coaster noted that the appellant’s paternity was in issue and no DNA test had been provided (see paras 48 and 49 of the determination). Further, Ms Jones had not attended to give oral evidence and his explanation that she was ill and that it was “probably her asthma or she has had had a heart problem before” was not supported by any medical evidence. Judge Coaster noted that there were discrepancies between Ms Jones’ statements and, in the absence of her attendance and cross-examination, little weight could be given to her evidence that in the short time since she and the two children had returned from the Gambia he had continued to be “in regular contact” with them and that he would continue to play an active part in their lives (see paras 50-55 of the determination).
9. Having reached that finding, Judge Coaster went on to consider the appellant’s claim outside the Rules. She concluded that the children’s best interests were to remain with their mother and that, given he had not established a genuine subsisting relationship with them, having regard to all the circumstances it was not disproportionate to refuse the appellant’s claim for leave under Art 8.
The Appeal to the Upper Tribunal
10. The appellant sought permission to appeal to the Upper Tribunal on two grounds. First, the judge had been wrong to take into account that the appellant had failed to provide a DNA paternity test which was not a requirement of the Rules. In particular, it was contended that the failure to do so was as a result of the children’s mother’s unwillingness to have such a test carried out. Secondly, the judge had been wrong to find that the appellant had no continuing relationship with his children given that they had been living outside the United Kingdom between April 2015 and June 2016 shortly before the hearing on 5 July 2016.
11. On 14 November 2016, the First-tier Tribunal (Judge Keane) granted the appellant permission to appeal on the basis that the judge had arguably taken into account “irrelevant considerations” by expecting the appellant to submit a DNA test and by drawing an adverse inference due to the absence of Ms Jones attending the hearing.
12. On 22 November 2016, the Secretary of State filed a rule 24 notice seeking to uphold the judge’s decision.
Discussion
13. The first point made on behalf of the appellant by Mr Khan was that the judge had been wrong to doubt the credibility of the appellant’s evidence of his continuing involvement with his children because he had not submitted a DNA paternity test.
14. The judge dealt with this issue at paras 48-49 of her determination as follows:
“48. Turning first to the question of paternity, it was never directly put to the Appellant that he was not the father of the children. The basis for refusal was that he had failed to meet suitability requirements by failing to provide a DNA test proving his paternity. This ground for rejection is misconceived. The Immigration Rules do not specify a DNA paternity test must be provided. The test is one of the parental relationship with the children who are qualifying children in that they are British Citizens and are under the age of 18 years. The Appellant must demonstrate that he has access rights to the children and that he is taking and intends to continue to take an active role in the children’s upbringing. Under EX.1 the requirement is that the Appellant must demonstrate a genuine and subsisting parental relationship with the children and it must not be reasonable to expect the children to leave the UK.
49. Nevertheless given the challenge by the Secretary of State, it was an error of judgment on the part of the Appellant not to settle the issue by providing a DNA test result and it raises a question why he did not do so on a matter that is important to him. The Appellant said that he did not mind whether a paternity DNA test was taken or not because he is certain he is the father of the children. That misses the point that the Home Office wanted it and that the test result would have been useful contributing evidence to the issues.”
15. Mr Khan submitted that the judge had been correct to focus on whether a “parental relationship” and he referred me to my own decision in R (RK) v SSHD (s.117B(6); “parental relationship”) IJR [2016] UKUT 31 (IAC) recognising that a “parental relationship” depended upon individual circumstances and non-parents could be in a “parental relationship with a child” if they “stepped into the shoes” of a parent.
16. In relation to the relevant Rules in Appendix FM in Section R-LTRPT dealing with the requirements for “limited leave to remain as a parent”, Mr Khan’s submission fails to pay due regard to the fact that a claim under this Rule must be made by a “parent”. Whilst the substance of the Rules requires that the relationship be, in effect, a genuine and subsisting one, it must be a relationship between a child and a “parent”. That is clear from the terms of R-LTRPT.1.1. which states that: “The requirements to be met for limited or indefinite leave to remain as a parent are – ” and then the requirements are set out. Clearly, the applicant must be a “parent”. Likewise E-LTRPT.2.2. states that “The child of the applicant must be” – and then sets out the requirements. The relationship must, therefore, be one of parent and child. The case of RK upon which Mr Khan placed reliance was concerned exclusively with the provision in s.117B(6) of the Nationality, Immigration and Asylum Act 2002 which sets out a factor to which a court or tribunal “must have regard” in determining whether a breach of Art 8.2 of the ECHR is established. That provision states that:
“In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where –
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.”
17. That provision, unlike those in the Rules, is not restricted to a “person” who is a “parent” of a qualifying child. Of course, the individual concerned will normally be a “parent” but, by its own terms, s.117B(6) refers to any person who has a “genuine and subsisting parental relationship” with a qualifying child which, as RK identifies, may include a person, other than a biological parent, who has “stepped into the shoes” of a parent.
18. As a consequence, at least in considering the application of L-LTRPT to the appellant, contrary to what Judge Coaster stated in para 48 of her determination, it was crucial to determine whether the appellant was, in fact, the father of the children.
19. Mr Mills, who represented the Secretary of State candidly accepted that the respondent had not sought to challenge the judge’s assumption in para 48. There, the judge seems to have concluded that the issue of whether the appellant was the father of the children was not in issue and, instead, the real issue was whether there was a “genuine and subsisting parental relationship”. As Mr Mills pointed out, whether the appellant was the father of the children had arisen because following Ms Jones’ marriage, her husband had raised concerns about the children’s paternity and, in the decision letter dated 12 June 2015, the Secretary of State had not been satisfied, in the absence of DNA evidence, that the appellant was the father of the two children. Mr Mills accepted that he could not take any point in this appeal on the children’s paternity in those circumstances.
20. Of course, if the judge were entitled to find that the appellant did not have a “genuine and subsisting relationship” with the children and had not established that he intended to continue to play an “active role” in their lives, he could not succeed under the Rules even if he could establish he was their father. Likewise, outside the Rules, he could not rely upon s.117B(6).
21. The point, as developed by Mr Khan, related to the judge’s approach in para 49 and that the judge took into account the absence of a DNA test as raising concerns about the credibility of the appellant’s account and, therefore, whether his relationship with the children was “genuine and subsisting”.
22. In my judgment, Mr Khan’s submission over-reads what the judge was saying in para 49. It is far from clear that she took the absence of the test into account in assessing the appellant’s claim that he had a genuine and subsisting relationship with his children and that he intended to take an active part in their lives. In truth, as the final sentence in para 49 spells out, the judge was merely making an observation that the absence of the DNA test failed to provide the appellant with evidence which would have been useful.
23. In any event, para 49 has to be read in the context of the judge’s reasoning as a whole, in particular at paras 50-55 leading to her adverse finding that the appellant had failed to establish he had a genuine and subsisting relationship with the children and continued to have an active role in their lives.
24. The judge’s reasoning in para 50 is challenged but Mr Khan did not take issue with the reasoning in paras 51-54.
25. Paragraph 50 deals with the evidence of Ms Jones:
“50. Ms Jones did not attend the hearing to give evidence personally. It would have been helpful if she had done so. The Appellant told the Tribunal that she did not attend because she was ill. He said it was probably her asthma or she had had a heart problem before. No medical evidence was provided. The absence of Ms Jones in view of the notable difference between her first two statements, December 2014 and April 2015, and her current statement June 2016, is detrimental to the credibility of the Appellant’s claim that he has a continuing subsisting relationship with the children and plays a major role in their upbringing. Without Ms Jones’ evidence being tested by cross examination, little weight can be attributed to her evidence.”
26. It is clear that the judge had well in mind the appellant’s explanation of why Ms Jones had not attended the hearing. There was no supporting medical evidence to support his explanation of why she did not attend. Mr Khan submitted that the judge had failed to take into account that their relationship had broken down and that it was not easy either to obtain medical evidence or her attendance. In fact, of course, Ms Jones had provided three statements put into evidence by the appellant. This was not a case where she had simply failed to engage with the prosecution of the appellant’s claim. Nevertheless, she did not attend. In the absence of any supporting evidence to explain her absence, I see nothing wrong in the judge taking her absence into account given that her evidence could not, therefore, be subject to cross-examination. It was not incumbent upon the judge to take her evidence at face value and simply accept it. In any event, as the judge explained at para 50, there were “notable differences” between her evidence which remained unexplained in the absence of her attendance and explanatory oral evidence. Mr Khan did not seek to doubt this point made by the judge in para 50.
27. Then, at paras 51-55 the judge analysed the evidence leading to her adverse conclusion as follows:
“51. Whilst I saw evidence of a parental contact between the Appellant and the children until April 2015, the children and Ms Jones were then abroad for approximately a year. The evidence before me did not confirm that on their return there had been a continuation of the weekly travel by the Appellant to Stoke on Trent, fortnightly visits by the children to Newport, financial support or any other evidence of the Appellant having taken responsibility for the children. After such a long gap in their physical contact and no evidence of any contact between Ms Jones and the Appellant when she was in The Gambia, it would not be unreasonable for a detailed account of the Appellant being reunited with the children and express confirmation of the contact agreement being continued. The burden of proof is on the Appellant to the civil standard of the balance of probabilities that he has a continuing active role in the children’s lives and that he has a genuine and subsisting parental relationship with them.
52. The Appellant states at paragraph 11 of his witness statement that he is ‘in regular contact with both the children, playing an active role in their upbringing and welfare. Moreover having shared parental responsibility, I have joint duty and equal say in all major decision with regards to the children’s health, safety education and upbringing.’
53. Ms Jones in her latest statement stated that the Appellant is ‘in regular contact’. Ms Jones goes on to say in her statement that she finds the current contact arrangements with the Appellant should continue until the children reach the age of sixteen because any disruption at this state would adversely affect their wellbeing and settled routine. However, she did not refer again to the Appellant visiting the children weekly and taking a major role in their upbringing. She gives no dates on which contact is or has been made since her return from Gambia or what decisions the Appellant had participated in concerning their welfare. All evidence of an active role by the Appellant in parenting pre-dated April 2015. In view of the year during which the Appellant had no contact with the children when they were in The Gambia, it would not have been unreasonable to expect Ms Jones to provide further detail of the re-establishment of the Appellant’s contact with the children, when it had been made, what role he had played and whether he made any financial contribution to them whether during their absence abroad or more particularly since their return.
54. The children are now almost two years of age. They will have no memory of the Appellant prior to their departure for The Gambia at about 5 months’ old and are unlikely to have been able to establish a relationship aged 18 months with the Appellant in the few weeks since their re-entry to the UK. As Ms Jones does not state that being separated from the Appellant for a year had any impact on the children whilst they were in The Gambia I can attach little weight to her statement that the children are emotionally attached to the Appellant; nor can I attach weight to her statement at 21 June 2016 that ‘any disruption at this stage [of the current contact arrangements] would adversely affect their wellbeing and settled routine.’ There was no evidence of what their settled routine is after their return from The Gambia.
55. The burden of proof is on the Appellant on the balance of probabilities that he has a genuine and subsisting relationship with the children. There was insufficient evidence of a genuine and subsisting relationship since April 2015 or that the children had a settled routine incorporating the Appellant. I find therefore that the Appellant has not discharged the burden of proof.”
28. In my judgment, Judge Coaster was properly entitled to find on the basis of the evidence before her that the appellant had not established that he had a genuine and subsisting relationship with his children. Mr Khan prayed in aid that the children had only recently returned to the UK prior to the hearing. There was, however, no application to adjourn the hearing in order to obtain ‘better’ evidence. The appellant had had no contact with his children whilst they were in the Gambia. They were about 5 months old when they left the UK and were now around 18 months old. There were, as the judge observed, difficulties with Ms Jones’ evidence and these were not matters which could be clarified in oral evidence as she did not attend the hearing. The judge could only decide the appeal on the basis of the evidence that was before him. The judge gave adequate reasons for her adverse finding which was not, in my judgment, irrational or otherwise unsustainable in law.
29. Given the judge’s adverse finding, the appellant could not succeed under the ‘parent’ route in Appendix FM and Mr Khan did not seek to challenge the judge’s decision to find that the appellant could not succeed under para 276ADE or outside the Rules under Art 8. He was clearly right not to do so. The judge’s findings that led to those decisions were ones clearly open to her on the evidence.
30. For these reasons, Judge Coaster did not materially err in law in dismissing the appellant’s appeal.
Decision
31. The First-tier Tribunal’s decision to dismiss the appellant’s appeal did not involve the making of a material error of law. That decision stands.
32. Accordingly, the appellant’s appeal to this Tribunal is dismissed.

Signed

A Grubb
Judge of the Upper Tribunal

Date 19 April 2017

TO THE RESPONDENT
FEE AWARD

Judge Coaster made no fee award as the appeal was dismissed. That decision stands.

Signed

A Grubb
Judge of the Upper Tribunal

Date 19 April 2017