Tribunal decisions

The decision

IAC-AH-VP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28816/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 December 2016
On 05 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

nana kofi tandoh
(anonymity direction NOT MADE)
Respondent

Representation:

For the Appellant: Mr. P. Armstrong, Home Office Presenting Officer
For the Respondent: Mr. A. Bajwa, A. Bajwa & Co Solicitors

DECISION AND REASONS

1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Blake, promulgated on 22 August 2016, in which he allowed the appeal of Mr. Tandoh against the Secretary of State's decision to refuse leave to remain on the basis of his family and private life.

2. For the purposes of this appeal I refer to the Secretary of State as the Respondent, and to Mr. Tandoh as the Appellant, reflecting their positions as they were before the First-tier Tribunal.

3. Permission to appeal was granted as follows:

"However it is arguable that the Judge has misdirected himself in law by (a) failing to consider and apply section 117B of the Nationality, Immigration and Asylum Act 2002; (b) failing to consider what insurmountable obstacles there are for the Appellant's wife not returning to Ghana to live with the Appellant there, and (c) failing to apply the case of Chen v SSHD [2015] UKUT 00189 (IAC) where there is arguably a sensible reason for requiring removal when the relationship has developed in precarious circumstances which is distinguishable from the facts and ratio of Chikwamba v SSHD [2008] UKHL 40."

4. The Appellant attended the hearing. I heard submissions from both representatives following which I announced that I found the decision involved the making of a material error of law, and that my full reasons would follow.

Submissions

5. Mr. Armstrong submitted that there were inadequate reasons given as to why the Appellant could not make an entry clearance application from Ghana. The judge had not engaged with the public interest argument under section 117B. The relationship had begun when the Appellant was an overstayer and his partner would have been aware of that. His children were all adults.

6. I was referred to paragraphs (i) and (iii) of the head note to Chen. The judge had misunderstood Chen and had made a material misdirection of law. The Appellant still had contact with relatives in Ghana as shown by paragraph 39 of the decision. The judge had failed to give reasons in paragraph 80 as to why a temporary separation would be disproportionate. I was referred to paragraphs 31 and 33of the decision referring to contact with Ghana.

7. In response Mr. Bajwa accepted that the failure to deal with the public interest was an omission on the part of the First-tier Tribunal Judge. He referred to paragraph 64 and submitted that, although insurmountable obstacles had not been explored in much detail, they had been considered. He accepted that the judge had not gone into much detail regarding the case of Chen. With reference to paragraph 69, whether it had been properly applied was a matter for the Tribunal. He submitted that all of the Appellant's family had precarious status until 2011, and it was not clear whether the relationship was formed at the time when the Appellant's wife knew that his status was precarious.

8. In response Mr. Armstrong referred to paragraph 60, where it had been accepted that the Appellant could not meet the requirements of the immigration rules.

Error of Law Decision

9. As I stated at the hearing, and as accepted by Mr. Bajwa, I find that it is difficult to establish the facts of the Appellant's case from the decision. In particular, it is not clear from the decision whether the Appellant's wife had known that his status was precarious when the relationship was formed.

10. The decision and reasons are set out in paragraph 59 onwards. In paragraph 60 the judge states:

"I noted that the Appellant had conceded he could not qualify under the Immigration Rules. I therefore considered whether there were any exceptional circumstances to warrant the consideration of the application outside of the Immigration Rules."

11. I find that the Appellant conceded that he could not qualify under the immigration rules, but there is no reference to this concession in the judge's consideration of Article 8. This is particularly relevant in relation to the issue of insurmountable obstacles given that, by accepting that he could not meet the requirements of the immigration rules, the Appellant has accepted that there are no insurmountable obstacles to family life continuing with his wife in Ghana. This is the wording as set out in paragraph EX.1(b), and as further defined in paragraph EX.2, of Appendix FM. By conceding that he does not satisfy the requirements of this paragraph, the Appellant has effectively conceded that family life could continue with his wife in Ghana. However, there is no reference to this concession in the consideration of Article 8 outside the immigration rules.

12. Paragraph 64 states:

"In this respect I fully understood the evidence of the Appellant's wife, Mrs Nana Yaa Tama when she stated that she would not be able to go to Ghana if the Appellant were removed because all of her children and grandchildren were in the UK lawfully."

13. This arguably runs counter to the concession that paragraph EX.1(b) is not satisfied. However the judge has failed to link this evidence with the concession that the immigration rules are not met.

14. Further it is not clear from the decision whether the judge has found that the Appellant has family life with his sons, given that they are all adults. It is clear from paragraph 75 that he knows that the Appellant's sons are all adults as he lists their ages. In order to find that there was family life between the Appellant and his sons, he would have had to have found that the ties between them went beyond the normal emotional ties to be found between a father and his adult children following the case of Kugathas [2003] ERCA Civ 31. However, there are no such findings.

15. In the consideration of Article 8, it is clear that where an Appellant has waited for fourteen years before seeking to regularise his status, the fact of him being an overstayer for so long is a relevant consideration in relation to public interest considerations. In the consideration of Article 8 outside the immigration rules there is no reference to section 117B of the 2002 Act, or any reference to the factors set out in that section. The factors set out in section 117B must be considered by Tribunals when considering an appeal under Article 8 outside of the immigration rules.

16. In relation to the case of Chen, and whether temporary separation of the Appellant and his wife would be disproportionate, the judge states in paragraph 80:

"I considered that even temporary separation would be disproportionate on the particular circumstances of the appeal."

17. I find that the judge has failed to give any reasons for this, and this is especially difficult to understand given the concession that the immigration rules were not met. Paragraph (i) of the headnote to Chen states:

"Appendix FM does not include consideration of the question whether it would be disproportionate to expect an individual to return to his home country to make an entry clearance application to re-join family members in the U.K. There may be cases in which there are no insurmountable obstacles to family life being enjoyed outside the U.K. but where temporary separation to enable an individual to make an application for entry clearance may be disproportionate. In all cases, it will be for the individual to place before the Secretary of State evidence that such temporary separation will interfere disproportionately with protected rights. It will not be enough to rely solely upon the case-law concerning Chikwamba v SSHD [2008] UKHL 40."

18. There is no reference to any evidence that the Appellant put forward to show that temporary separation would be an interference, and there are no reasons given by the judge for so finding. Chen refers specifically to circumstances where there are no insurmountable obstacles to family life being enjoyed outside the United Kingdom, a concession which the Appellant made. I find that the failure to give reasons for why a temporary separation would be disproportionate is an error of law.

19. Taking the decision as a whole, I find that the consideration of Article 8 is inadequate. There is no consideration of the factors set out in section 117B. In particular, there is no consideration of the relevance of the concession that he did not meet the requirements of the immigration rules, and there is no consideration of the fact that he has been in the United Kingdom for fourteen years as an overstayer. Further, it is not clear whether the judge has found that family life exists between the Appellant and his sons.

20. As stated above, it is difficult to ascertain the facts of the Appellant's case from this decision. It was agreed between the representatives that it would be appropriate to remit the appeal to the First-tier Tribunal as further evidence would need to be adduced. I have taken account of the Practice Statement dated 10 February 2010, paragraph 7.2. This contemplates that an appeal may be remitted to the First-tier Tribunal where the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for the party's case to be put to and considered by the First-tier Tribunal. Given the nature and extent of the fact-finding necessary to enable this appeal to be remade, and having regard to the overriding objective, I find that it is appropriate to remit this case to the First-tier Tribunal.

Notice of Decision

21. The decision involves the making of a material error of law and I set the decision aside.

22. The appeal is remitted to the First-tier Tribunal for rehearing.

23. No anonymity direction is made.

Signed Date 4 January 2017

Deputy Upper Tribunal Judge Chamberlain