(Immigration and Asylum Chamber) Appeal Numbers: IA/25025/2012
THE IMMIGRATION ACTS
Heard at Sheldon Court, Birmingham
On 15th May 2013
On 7th June 2013
MR C M G OCKELTON, VICE PRESIDENT
DEPUTY UPPER TRIBUNAL JUDGE M A HALL
BERNARD KODOWU AGBO (first Appellant)
JULIANA BOAKYEWA APPIAH (second Appellant)
LINUS GAMELI KODOWU AGBO (third Appellant)
ELLIOT EDEM KODOWU AGBO (fourth Appellant)
(anonymity direction not made)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellants: Miss J Onalo of R Spio & Co Solicitors
For the Respondent: Miss A Pleass, Home Office Presenting Officer
DETERMINATION AND REASONS
Introduction and Background
1. The Appellants appeal against a determination of Judge of the First-tier Tribunal Landes promulgated on 27th February 2013.
2. The Appellants born 24th May 1972, 10th September 1979, 19th February 2009, and 11th October 2010 are citizens of Ghana. The first and second Appellants are partners, and are the parents of the third and fourth Appellants.
3. In October 2005 the first Appellant applied for indefinite leave to remain in the United Kingdom on the basis of long residence. That application was refused on 15th January 2008, and the decision served on the first Appellant’s former representatives.
4. The first Appellant contended that he did not receive that decision until 25th June 2012. All the Appellants applied for leave to remain, relying upon Article 8 of the 1950 European Convention on Human Rights (the 1950 Convention). The applications were refused on 2nd November 2012 and Immigration Decisions made, indicating that decisions had been taken to remove the Appellants from the United Kingdom.
5. The Appellants appealed, and their appeals were heard together by Judge Landes on 14th February 2013. The judge found that the first Appellant had not proved that he had resided in the United Kingdom for a continuous period of fourteen years, and therefore did not qualify for leave to remain under the Immigration Rules. The judge also found that the Appellants could not benefit under the Immigration Rules introduced as from 9th July 2012 by HC 194, and which were designed to address Article 8 claims. Finally, the judge found that the Appellants’ appeals could not succeed under Article 8 of the 1950 Convention.
6. The Appellants applied for permission to appeal to the Upper Tribunal. In summary it was contended that the judge had erred in finding that the first Appellant’s passport was not genuine, and that the judge had erred in not taking into account that documents such as a GP registration document and P60s belonging to the first Appellant had not been produced at the hearing by the Respondent and therefore could not be relied upon by the first Appellant.
7. It was also contended that the judge had erred in finding that the refusal decision made in 2008 had been properly served upon the first Appellant’s previous solicitors, and by concluding that such service effectively “stopped the clock” for the purposes of long residence under the Immigration Rules. It was also contended that the judge was wrong to attach very little weight to the delay on the part of the Respondent in dealing with the first Appellant’s application, which was made in 2005, and the judge had failed to assess the best interests of the minor Appellants.
8. Permission to appeal was granted by Designated Judge of the First-tier Tribunal Zucker in the following terms;
1. First-tier Tribunal Judge Landes dismissed the Appellants’ appeal, brought on human rights grounds, against the decision of the Respondent to remove them from the United Kingdom.
2. The Appellants’ claim had in part been based upon long residence. Central to the issues before the judge was whether a passport relied upon was genuine. The grounds submit that the evidence was insufficient. I do not agree. The grounds make no reference to the proceedings brought pursuant to section 108 of the 2002 Act. I have seen the judge’s notes in relation to those proceedings. I am satisfied that there was sufficient evidence for the judge to make the findings she did.
3. The remaining grounds in general submit that the judge’s approach to the issue of proportionality was flawed. This was a very full and carefully considered determination. Contrary to what is submitted in the grounds the judge properly directed herself with regards to the children; see paragraph 55.
4. The judge looked to the totality of the evidence and clearly found as she was entitled to do that it was punctuated with dishonesty and deceit.
5. The grounds taken as a whole are no more than a disagreement with findings of fact all of which were open to the judge to make.
9. Miss Onalo confirmed that when the grant of permission was received, a telephone call was made to the Tribunal, as although permission was granted, the reasons given indicated that the judge had intended to refuse permission. Miss Onalo explained that it was confirmed that permission had been granted.
10. When asked why we should not adopt the reasons given by Judge Zucker, Miss Onalo submitted that the reasons did not deal with all the issues that had been raised in the grounds contained within the application for permission to appeal.
11. When asked to specify what had not been considered Miss Onalo referred to paragraph 5 of the grounds and argued that the judge had been wrong to speculate that it was in the year 2000 that Mamaa Badu had stated that she was told that the Appellant had not been in the UK long enough to qualify for the long residence concession at that time. We were asked to accept that the judge had speculated in stating that it was 2000 as the Appellant had started living with Mamaa Badu prior to that date.
12. Miss Onalo also referred to paragraph 6 of the grounds, submitting that the document from the Appellant’s doctor had been served upon the Respondent and the Appellant had not kept a copy. This document proved that the Appellant had registered with his doctor in 1990 but because the Respondent had not produced the document, the Appellant was unable to rely upon it to show continuous residence since 1990. Miss Onalo accepted, when asked, that the Appellant’s representatives had not sought disclosure of this document from the Respondent prior to the hearing before the First-tier Tribunal.
13. It was also submitted by Miss Onalo that the first Appellant made his application for leave to remain, based on long residence, in 2005, and that he did not receive the Respondent’s decision until June 2012, and the judge had erred by finding that there had been good service of that decision upon the Appellant’s previous representatives in January 2008.
14. We then heard from Miss Pleass, who contended that Judge Zucker had clearly intended to refuse permission to appeal, and that it had been an error to grant permission. We were asked to adopt Judge Zucker’s reasons.
15. In relation to the letter from the Appellant’s doctor, Miss Pleass confirmed that so far as she was aware, it was not in the Respondent’s file when the appeal was heard before the First-tier Tribunal. She had not seen that letter. In any event she argued that the letter itself, would not prove continuous residence from 1990. We were asked to note the judge’s findings on other documentary evidence, such as the first Appellant’s passport, and payslips which the first Appellant had produced, and referred to in paragraph 29 of the determination, which did not have standard tax codes, and there was insufficient evidence to indicate that the company which claimed to have issued the tax codes actually existed.
16. Miss Pleass submitted that Judge Zucker had dealt with all the issues raised in the grounds, and the determination of the First-tier Tribunal disclosed no error of law.
17. In responding Miss Onalo argued that Judge Zucker had not dealt with everything raised in the grounds. She referred to paragraph 48 of the determination contending that the judge had accepted that the Appellant had by the date of hearing lived in the United Kingdom “for at most fourteen years”. That should have been taken into account in assessing proportionality. Miss Onalo also argued that the judge had accepted, in paragraph 34 of the determination, that Mamaa Badu was a credible witness.
Our Conclusions and Reasons
18. Nothing we heard at the hearing persuaded us that we should depart from the reasons given by Judge Zucker, when in our view he clearly meant to refuse permission to appeal, but in fact granted permission. We agree with Judge Zucker, that the determination of the First-tier Tribunal does not disclose an error of law.
19. Dealing with the issues raised in the grounds, we do not find that the judge erred in her consideration of the first Appellant’s passport. We have seen the forgery report that was the subject of an application made pursuant to section 108 of the Nationality, Immigration and Asylum Act 2002. The judge made sound evidence based findings in concluding that the passport was not genuine. The findings were open to her on the evidence, and sustainable. It is contended in the grounds that the judge erred in paragraph 27 of her determination by finding that it was in 2000 that Mamaa Badu had stated that she was told that the Appellant had not been in the United Kingdom long enough to qualify for the long residence concession. It is contended that this was unfair speculation by the judge, as both the Appellant and Mamaa Badu had stated that they lived together between 1998 and 2003.
20. We believe that this was a misunderstanding by the Appellants’ representatives. What the judge actually set out in paragraph 27 was that if the Appellant had been in the United Kingdom since 1986 as he claimed, then he would have qualified for long residence by having had fourteen years’ residence in 2000, and at that time both he and Mamaa Badu were living together. The judge’s point was that the Appellant could if he had been in the United Kingdom since 1986, have applied for leave in 2000 but did not do so. The judge did not err in law in making this finding.
21. In paragraph 28 the judge considered the Appellant’s contention that a doctor’s letter confirmed that he had been registered with that doctor since 1990, but this letter had been given to the Respondent and was not produced. The judge did not err in her consideration of this evidence. The judge was entitled to note that even if the letter was produced, it did not prove continuous residence since 1990. The judge noted that the Appellant had been aware since at least June 2012 that this evidence was not accepted, and that he had not obtained his medical records to show the dates when he visited his doctor, or produced any further details of his visits to the doctor’s surgery.
22. We find no error in paragraph 29 of the determination, in which the judge considered P60 documents from Servo Cleaning Limited, which related to the first Appellant and were said to date back to 1991, although again these documents had been submitted to the Respondent and were not produced. The judge was entitled to make the point that the first Appellant had been aware that these documents were not accepted since at least June 2012, and no further evidence had been produced to indicate that the company existed during the period in question, nor was there any evidence from HMRC, to indicate that the first Appellant was recorded as working for Servo Cleaning Limited during that period. The judge was entitled to find that this evidence could not be relied upon to prove the first Appellant’s presence in the United Kingdom between 1991 and 1998.
23. Paragraph 7 of the grounds refers to the judge being satisfied that the Appellant had been residing in the United Kingdom from 1999, but contends that the judge did not dispute that the Appellant and Mamaa Badu had known each other before then, and their testimony was that they had known each other from 1997. The judge made a specific finding in paragraph 38 that the first Appellant had been in the United Kingdom since 1999. She did not record that the first Appellant and Mamaa Badu had known each other before then, but recorded that they must have known each other for some time before the first Appellant moved to Telford, which the judge found to be in the summer of 2003. There was no error made by the judge in consideration of this issue.
24. Paragraph 8 of the grounds complains about the finding in paragraph 41 of the determination, in which the judge finds that the Respondent’s decision was properly served upon the Appellants’ previous representatives in January 2008, which meant that after service of that notice, no further time in the United Kingdom would count towards long residence. We are satisfied that the judge did not err in so finding, but note that the judge also considered an alternative scenario. The judge went on to consider what the position would be, if the Respondent’s decision was only in fact served in June 2012 and as the judge correctly pointed out, given her finding that the Appellant had been in the United Kingdom since 1999, he would not have acquired fourteen years’ residence even by June 2012.
25. The determination was challenged on the basis that little weight had been given to the Respondent’s delay in dealing with the application for leave to remain. We cannot agree with that submission as in our view the judge considered delay, and the principles in EB (Kosovo)  UKHL 41 in paragraphs 62–64. She explained that the decision in EB (Kosovo) indicated that delay could be relevant in three ways, firstly that during any period of delay an Appellant’s Article 8 claim was likely in fact to strengthen, secondly that although parties might enter into relationships in the knowledge that their status in the UK was precarious, the expectation would grow that if the authorities intended to remove a party they would have done so, and thirdly that delay might be relevant if shown to be the result of a dysfunctional system yielding unpredictable, inconsistent and unfair outcomes. The judge found in paragraph 64 that delay in the second sense must be given significant weight in this case, and took this into account in conducting the proportionality balancing exercise.
26. We conclude that the judge considered, with care, the principles set out in EB (Kosovo), and applied them appropriately.
27. It is also contended on behalf of the Appellants that the judge failed to assess the best interests of the third and fourth Appellants who are minor children. We find this contention to be without foundation. The judge considered the best interests of the children at paragraphs 55–59, and considered them as a primary consideration when making the proportionality assessment required under Article 8 of the 1950 Convention. The judge took into account the young ages of the children, and concluded that it is in the best interests of children to live with and be brought up by their parents, and correctly applied the principles set out in E-A (Article 8 – best interests of child) Nigeria  UKUT 00315. We can discern no error in the way that the judge considered the best interests of the children, and concluded that it would be in their best interests to return to Ghana if their parents returned.
28. This was a determination prepared with care, and the judge took into account all material matters, and did not give weight to any immaterial matters, and gave adequate reasons for her findings, and committed no error of law.
The determination of the First-tier Tribunal does not contain an error of law. That decision therefore stands and the appeals are dismissed.
No anonymity direction was made by the First-tier Tribunal. There has been no request for anonymity and the Upper Tribunal makes no anonymity direction.
Signed Date 20th May 2013
Deputy Upper Tribunal Judge M A Hall
The appeals are dismissed. There is no fee award.
Signed Date 20th May 2013
Deputy Upper Tribunal Judge M A Hall