Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28414/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision & Reasons Promulgated
On 22 November 2016
On 13 December 2016

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
ABDULYEKEEN OLA ADEKOYA
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: not represented
For the Respondent: Mr G Harrison Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
3. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Agnew promulgated on 17 December 2015 which dismissed the Appellant's appeal against the decision of the Respondent to refuse his application dated 17 October 2014 for leave to remain on the basis of his family and private life.
4. The Appellant appeared before me unrepresented. I explained to him the procedure and that I was required to look at the Judge's decision on the basis of the evidence before him and whether based on that evidence the Judge had made an error of law and whether that error was material to the outcome of the decision.
Background
5. The Appellant was born on 27 August 1971 and is a national of Nigeria.
6. On 8 July 2013 the Appellant completed an immigration status questionnaire in which he claimed that entered the UK illegally on 16 February 2001.
7. On 26 January 2009 he submitted an application for an EEA Residence Card in which he claimed he entered the UK on 16 February 2004.
8. On 15 February 2009 the application for an EEA Residence Card was refused.
9. On 19 June 2013 he was served with a notice of his liability to be removed as an illegal overstayer.
10. On 14 October 2014 the Appellant made the application which was the subject of the appeal before Judge Agnew.
11. On 30 July 2015 the Secretary of State refused the Appellant's application. The refusal letter gave a number of reasons:
(a) The Appellant did not have a partner in the UK.
(b) The Appellant did not meet the eligibility requirements of the parent route as there was no evidence that he had sole responsibility for the 4 named children or that they lived with him rather than their mother. The Appellant had also failed to establish that he was taking or intended to take an active role in the children's upbringing.
(c) The private life requirements of the Rules were considered but as he had not lived in the UK for 20 and had failed to show that there were very significant obstacles to his reintegration in Nigeria.
(d) There was no basis for a grant of leave outside the Rules
The Judge's Decision
12. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Agnew ("the Judge") dismissed the appeal against the Respondent's decision after the Appellant had requested a paper hearing. The Judge:
(a) Stated at paragraph 6 that he had the refusal letter and a bundle of documents from the Appellants then representatives Leslie Charles.
(b) He noted that the Appellant was the father of 4 children by his ex partner who had won her appeal to remain in the UK in April 2014 although the Respondent was appealing that decision.
(c) The Appellant asserted that he played a role in the children's life and saw them weekly and sometimes took them out at weekends and to Mosque and sometimes bought them gifts. The Judge found there was no independent evidence that the Appellant had any contact with the children.
(d) He found that the children's best interest was to remain with their mother which was unaffected by the presence of their father.
(e) He did not accept that the Appellant had no ties with Nigeria.
(f) He found that the Appellant did not meet Appendix FM or paragraph 276ADE.
(g) He found that the decision was proportionate.
13. Grounds of appeal were lodged by the Appellant in person arguing that the Judge focused too heavily on the Appellants immigration history; the Judge did not appear to have before him the Respondents bundle and take into account he evidence he submitted to the Home Office; the Judge failed to give adequate reasons why Article 8 was not engaged.
14. On 14 July 2016 First -tier Tribunal Judge Hollingworth gave permission to appeal.
15. At the hearing I heard submissions from the Appellant that:
(a) He was unable to identify any document that would have been in the Respondents bundle that was not in the bundle of documents submitted by Leslie Charles for the paper hearing.
(b) The Appellant then thought he remembered making a document with Binas Solicitors to show that he was in fact living back with his partner that was submitted to the Home Office before the hearing date and the decision of Judge Agnew. He was unable to remember when he made the document, not even what year it was made.
(c) He accepted that he had not been truthful at the time of the application about where he lived at the time of his application or about the status of his relationship with his partner: they were in fact living at the same address and were reconciled.
16. On behalf of the Respondent Mr Harrison submitted that:
(a) He accepted that the Judge did not have a Respondents bundle before him.
(b) He accepts that the Appellant is now back living with his partner and has been for at least 7 months.
The Law
17. Errors of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on facts or evaluation or giving legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
18. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue under argument. Disagreement with an Immigrations Judge's factual conclusions, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence that was not before him.
19. In relation to adequacy of reasons in MK (duty to give reasons) Pakistan [2013] UKUT 00641 (IAC), it was held that (i) It was axiomatic that a determination disclosed clearly the reasons for a tribunal's decision. (ii) If a tribunal found oral evidence to be implausible, incredible or unreliable or a document to be worth no weight whatsoever, it was necessary to say so in the determination and for such findings to be supported by reasons. A bare statement that a witness was not believed or that a document was afforded no weight was unlikely to satisfy the requirement to give reasons.
Finding on Material Error
20. Having heard those submissions, I reached the conclusion that the Tribunal made no material errors of law.
21. I am satisfied that the Judge did not have before him a Respondents bundle that should have contained the material that was before the decision maker when considering this application. This would have been potentially material to the outcome of the appeal had there been any evidence in that bundle that was not before the Judge at the time of his decision.
22. I note that a bundle was prepared for the hearing of the appeal by Lesley Charles Solicitors. While I note that the Appellant has now produced various undated photographs together with witness statements from his partner and himself that post date the appeal hearing he was unable to identify for me anything that he submitted to the Respondent prior to the date of the appeal that was not replicated in Lesley Charles bundle.
23. I reject the Appellants assertion that the Respondent was in possession of a 'document that showed that he and his wife were reconciled at the time of the appeal hearing and that was therefore not before the Judge on 9 December 2015. I note of course that the bundle from Lesley Charles was submitted under cover of a letter dated 1 December 2015 and the Appellants statement in that bundle which clearly stated that he was not living with his partner was signed by him and dated 1 December 2015. I note that the Appellant before me was extremely vague as to the nature of this document and when it was created and initially gave a date for its creation prior to the date of the application under appeal but then changed his mind and suggested that it was made for the appeal in issue. I also find it undermines the Appellants claim that at the time of the appeal he was represented by Leslie Charles Solicitors he stated that he went to another firm of solicitors to create this document.
24. I am satisfied that the bundle produced by Leslie Charles Solicitors contained all of the documentary evidence that would have been in the Respondents bundle because the Appellant was unable to identify anything additional. I am satisfied that the Appellant is unable to be vague and hesitant about the basis on which he pursued this appeal because even on his account he had lied in his dealings with the Respondent. The Judge cannot be faulted that he dealt with the evidence that was before him which did, as he found, show no evidence of contact with his children.
25. I was therefore satisfied that the Judge's determination when read as a whole set out findings that were sustainable and sufficiently detailed and based on cogent reasoning.
CONCLUSION
26. I therefore found that no errors of law have been established and that the Judge's determination should stand.
DECISION
27. The appeal is dismissed.

Signed Date 10.12.2016
Deputy Upper Tribunal Judge Birrell