Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: Ia/24790/2012

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 09 November 2016
On 23 November 2016

Before

THE HON. LORD BANNATYNE
SITTING AS A JUDGE OF THE UPPER TRIBUNAL
UPPER TRIBUNAL JUDGE CANAVAN

Between

A I
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves child welfare issues. We find that it is appropriate to continue the order. 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.

Representation:
For the Appellant: Mr R. Ahmed, Counsel instructed by Rahman & Company
For the Respondent: Mr S. Staunton, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appealed against the respondent's decision to refuse to vary leave to remain as a person exercising access rights to a child to Indefinite Leave to Remain.
2. First-tier Tribunal Judge R. Cooper ("the judge") dismissed the appeal in a decision promulgated on 15 February 2016. The appellant appeals the decision on the following grounds:
(i) The judge erred on grounds of procedural fairness in failing to consider whether it was necessary to adjourn the appeal in order to provide an opportunity for the applicant to respond to an issue raised by the respondent on the morning of the hearing. The respondent argued that the application should have been refused under the general grounds for refusal contained in paragraph 320(7A) (false representations) in light of the appellant's failure to disclose the family court order made in February 2012
(ii) Having dismissed the appeal under the immigration rules, the judge erred in failing to make any findings relating to Article 8 outside the rules.
Decision and reasons
3. After having considered the grounds of appeal and oral arguments we are satisfied that the First-tier Tribunal decision involved the making of an error on a point of law.
4. We are satisfied that the respondent did not raise the issue of whether the appellant should have been refused under the general grounds of refusal until the morning of the First-tier Tribunal hearing. The respondent asserted that the appellant made false representations for the purpose of the general grounds for refusal under paragraph 320(7A) of the immigration rules.
5. The appellant's solicitors made an application for Indefinite Leave to Remain as a person exercising access rights to a child on 19 April 2016. In the cover letter they asserted that the appellant continued to have contact with his children, including visits. The respondent relied on an order that was said to have been made by the Family Court in February 2012, when direct contact between the appellant and his children was suspended. The First-tier Tribunal decision indicates that the respondent did not produce a copy of the order. No copy appears to have been before the Tribunal [21].
6. Although it appears that the appellant's representative did not apply for an adjournment, it seems clear from the judge's summary of the submissions that there was an indication that the appellant's solicitors sent a copy of the February 2012 order to the respondent [28]. Given that the judge did not even have a copy of the order which the respondent's representative relied upon to support his submission, it was incumbent on the judge to consider whether it was fair to proceed to determine the appeal without giving the appellant an opportunity to produce further evidence to rebut such a serious allegation.
7. The appellant's grounds of appeal to the Upper Tribunal argue that evidence was available to rebut the respondent's assertion. A letter from Rahman & Co. Solicitors to the UK Border Agency dated 22 October 2012 stated the following:
"Our purpose of writing this letter to inform you that there was an order made by the Bow County Court on 3rd of February 2012 which suspends direct contact of our client with his children. This order had not been previously submitted with our client's application because there was an error in communication with our family department solicitor. The family department solicitor was under impression that this order has already been provided to immigration department by the client.
In reality we have not been provided this order and we were under impression that previous order made by District Judge Gregory on 11th November 2011 sitting at Bow County Court was still a valid order.
Our family solicitor recently conducted review of the case and realised the order dated 3rd February 2012 has not been provided to the immigration department. This order was brought to our attention today and we enclose it for your consideration. Please note that the family court proceedings are still going on to establish direct contact of our client."
8. The letter was sent on the same day the respondent refused the application. However, the respondent should have received it in good time before the First-tier Tribunal hearing and should have been aware of its contents. The letter shows that there was no intention to deceive the respondent. The assertions made by the appellant's solicitors in the original application were made on the mistaken belief that the most recent family court order was November 2011. As soon as the mistake was realised a copy of the order dated February 2012 was forwarded to the respondent.
9. In light of the information now before the Upper Tribunal we conclude that the First-tier Tribunal decision involved the making of the following errors of law.
(i) Firstly, given the issue was raised at such a late stage of the proceedings, without supporting evidence, and in circumstances where there was an indication that the appellant disclosed the February 2012 order to the respondent, the judge's failure to consider whether the interests of justice required an adjournment amounts to an error of law.
(ii) Secondly, having accepted that the appellant was now in contact with his children, but having dismissed the appeal under the immigration rules with reference to the general grounds for refusal, the judge failed to make any findings relating to Article 8 outside the rules. The fact that there was no removal decision is immaterial in circumstances where the relevant ground of appeal under section 84(g) related to removal "in consequence" of the decision, which is what would have happened following refusal of leave to remain. The judge's failure to consider a material issue amounts to an error of law.
10. We gave summary reasons for finding that the First-tier Tribunal decision contained material errors of law at the hearing on 09 November 2016. The Tribunal initially indicated that the case was appropriate for remittal to the First-tier Tribunal for a fresh hearing without objection from either party. However, on reflection the Tribunal issued further directions explaining why it was not in the interests of justice to remit the appeal for a fresh hearing in light of the First-tier Tribunal's findings relating to other aspects of the immigration rules. In particular, the effect of setting aside the First-tier Tribunal's findings relating to the general grounds for refusal was that the appeal should be remade and allowed.
11. We directed the parties to make further written submissions by Friday 19 November 2016. By way of a letter dated 17 November 2016 the appellant's representatives agreed with the proposed course of action. The Tribunal has no record of a response from the respondent. As such, we give our reasons for remaking the decision as follows.
12. At the First-tier Tribunal hearing the respondent's representative made clear that the only issue raised under the immigration rules was whether the appellant met the requirements of paragraphs 248D(ii)-(iii) [33]. The First-tier Tribunal judge went on to make clear and unchallenged findings on the evidence [34-46]. The First-tier Tribunal judge made clear findings that she was satisfied that the appellant met the requirements of paragraph 248D(ii) [44] and 248D(iii) [46] of the immigration rules. The only reason why the judge went on to dismiss the appeal was her finding that the appellant used deception in the application. Paragraph 320(7A) therefore applied [47-53].
13. The Tribunal has found that the failure to afford the appellant an opportunity to respond to such a serious allegation, in circumstances where it is clear that he could have produced evidence to clarify the matter satisfactorily by way of the letter dated 22 October 2012, amounted to an error of law.
14. At the Upper Tribunal hearing the respondent's representative accepted that the letter dated 22 October 2012 was sent to the UKBA and should have been considered. If that evidence had been before the Home Office representative at the earlier hearing it seems clear that the issue of paragraph 320(7A) should not have been raised. It also seems clear to us that, had that evidence been before the First-tier Tribunal, the judge could not have rationally concluded that the appellant intended to make false representations in the application.
15. In light of the above, the consequence of setting aside the First-tier Tribunal's findings relating to paragraph 320(7A) is that the judge's findings relating to paragraphs 248D(ii)-(iii) should stand i.e. the appeal should be remade and allowed based on those findings because the appellant met the requirements of the immigration rules. For these reasons the Tribunal considers that it is not appropriate to remit the appeal for a fresh hearing.
16. We conclude that the First-tier Tribunal decision involved the making of an error on a point of law. The part of the decision relating to the general grounds for refusal is set aside. The decision is remade and the appeal should be allowed as a logical consequence of the First-tier Tribunal's findings relating to paragraph 248D(ii)-(iii) of the immigration rules.

DECISION
The First-tier Tribunal decision involved the making of an error on a point of law
We re-make the decision and ALLOW the appeal

Signed Date 23 November 2016

Upper Tribunal Judge Canavan