Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30400/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 March 2017
On 07 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

AD
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. C. Jowett, Counsel instructed by N. C. Brothers & Co. Solicitors
For the Respondent: Mr. P. Nath, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge A. J. M. Baldwin, promulgated on 26 August 2016, in which he refused the Appellant’s appeal against the Respondent’s decision to refuse to grant leave to remain. The Appellant applied for leave to remain on Article 8 grounds.
2. Permission to appeal was granted as follows:
“The grounds are arguable: it is arguable that the First-tier Tribunal did not engage with the appellant’s detailed evidence going to how she had taken the ETS tests and found that the generic evidence of the respondent alone was sufficient to show she had taken them, which in turn is arguably failing to deal with material evidence and not in keeping with the decision in SM & Qadir and the other ETS authorities. It is also arguable that there is not a clear application of s.117B(6) of the 2002 Act by the First-tier Tribunal, which needed to take place given the acceptance that the appellant is the mother of a British child at paragraph 23 of the decision.”
3. The Appellant and Sponsor attended the hearing. I heard submissions from both representatives following which I reserved my decision.
Submissions
4. Mr. Jowett relied on the grounds of appeal and the skeleton argument. In relation to the TOEIC test results, the judge had addressed the evidential burden in [22]. He had failed to engage with the Appellant’s evidence. The evidential burden which first fell on the Respondent had been met, but the evidential burden which then fell onto the Appellant had subsequently been discharged by the evidence as set out at [12] and [13]. I was referred to the Appellant’s witness statement, [7] to [10]. The judge had not engaged with the detailed explanation which had been set out there. The discrepancy in relation to the cost of accommodation was not material to consideration of the evidence that she had the test.
5. In relation to section 117B(6), this must be considered in the light of the fact that the Appellant had discharged the evidential burden in relation to the allegation of fraud. There had been only a cursory consideration of the child’s best interests in [23]. There had been no engagement with the poor healthcare conditions in Nepal in [24] or the fact that the Appellant’s daughter is a British citizen.
6. Mr. Nath relied on the Rule 24 response. The Appellant had accepted that the evidential burden rested on her. The finding in [22] in relation to the Appellant’s credibility following the inconsistent evidence of the cost of the accommodation was open to the judge. The evidential burden had fallen on the Appellant and she had failed to discharge it.
7. In relation to section 117B(6), he submitted that there had been a very detailed assessment, but he accepted that it could be clearer. The judge had considered the circumstances with the Appellant leaving the United Kingdom. He gave reasons as to why he found against the Appellant. He had approached the issue in the right way.
8. In response Mr. Jowett submitted with reference to [12] that it was incumbent on the Respondent to discharge the legal burden. There was no mention of the three stage approach. It was incumbent on the judge to engage with the evidence. The evidence regarding taking the test had nothing to do with the evidence of the cost of accommodation. The Appellant had given a witness statement and been cross-examined on the issue. The burden was on the Respondent to show that there had been a proxy taker. The evidence relied on by the Respondent met only the evidential burden, not the legal burden.
9. In relation to section 117B(6) evidence had been provided of the lack of medicines (page 41). The judge found that it was in the best interests of the Appellant’s daughter to remain in the UK [23]. Paragraph 24 was very garbled and ambiguous. Some time had been taken trying to work out what it meant. His consideration of section 117B(6) was entirely unclear, and proportionality had not been properly considered under Article 8.
Error of Law Decision
TOEIC/ ETS
10. The judge deals with the TOEIC issue in [22]. It was accepted by the Appellant that the Respondent had provided evidence sufficient to discharge the evidential burden following SM & Qadir (ETS – evidence - burden of proof) [2016] UKUT 229 (IAC). The Respondent provided the generic witness statements of Peter Millington and Rebecca Collings. She also provided a witness statement from Lesley Singh dated 3 August 2016 which exhibited an extract from the ETS SELT Source Data. This showed that the Appellant’s test had been declared as invalid. The case law is clear that this evidence only meets the evidential and not the legal burden.
11. The judge states in [22] that “the Respondent, I find, has provided evidence of sufficient strength and quality to prove that the Appellant’s Test Certificate had been declared invalid by the examiner and that the Appellant had not sat the Test herself. The Respondent was fully entitled, I find, to conclude that this was a serious matter, being one which struck at the heart of the lawful objective of trying to ensure that social integration and the cohesion of UK society is not undermined by a lack of English language ability.”
12. In doing so, the judge found that the evidence provided by the Respondent was sufficient not only to meet the evidential burden, but also the legal burden. The approach in such cases is that first the Respondent must discharge the evidential burden. Following this, the burden shifts to the Appellant. The only two matters which the judge considered were the fact that her command of English at the hearing was good, and the evidence about the cost of accommodation. In relation to her English at the hearing, the judge found that the Appellant had been in the United Kingdom for over three and a half years since the date of the test, and therefore such a command of English would be expected. Therefore, the fact that her English was good at the hearing did not weigh in her favour when considering her claim to have sat the test herself. This is in accordance with paragraph 80 of SM & Qadir: “We consider that in appeals of this nature evidence of this kind is likely to be of substantially greater force and cogency than the tribunal’s own assessment of an Appellant’s English language proficiency based on performance at the appeal hearing.”
13. The judge then found that the Appellant’s credibility had not been done “any good at all” by the fact that her evidence about the cost of her accommodation was inconsistent with the evidence of her partner. I find that, while the judge was entitled to draw an adverse inference from the fact that there was inconsistent evidence given about the cost of accommodation, first this evidence is not connected to the evidence in relation to the ETS test, and secondly, the judge has not considered this evidence in the round with the other evidence provided by the Appellant regarding how she took the ETS test. In [12] the judge refers to the witness statement of the Appellant. “In it she sets out to the best of her recollection her taking of the tests in question over 2 days, and the route she took to get into the College in Hounslow. She felt she had done well, did not cheat and passed.”
14. The judge does not refer to the Appellant’s witness statement in his findings [22]. His summary in [12] is short and does not reflect the detail contained in [7] to [10] of the witness statement. In finding that the Appellant has not discharged the evidential burden on her the judge has relied only on the fact that the Appellant’s evidence of the cost of her accommodation was inconsistent with that her partner. He has not given reasons for rejecting the evidence of the Appellant set out in her witness statement of which he was clearly aware. He has not given reasons for finding that one piece of inconsistent evidence regarding accommodation costs outweighed the evidence contained in the witness statement. The evidence of current accommodation costs is entirely unrelated to whether or not the Appellant sat the test herself.
15. No further evidence was provided by the Respondent to discharge the legal burden, and the evidence provided by the Respondent was sufficient only to meet the evidential burden. In failing to take into account the evidence provided by the Appellant to discharge her evidential burden, I find that the judge erred in law.
16. In order to establish whether or not this error is material, I have considered the evidence provided by the Appellant in her witness statement. This was adopted at the hearing the First-tier Tribunal without corrections [12]. The Appellant said that she wished to set out the particulars of the two exams that she sat and the events leading up to them. In the reasons for refusal letter the Respondent stated that the “scores from the test taken on 15 January 2013 at New College London have now been cancelled by ETS”. In her witness statement referring to the timing of the tests, the Appellant said that “The first was on 28th December 2012; the second took place on the 15th of January 2013” [4]. However, in paragraph 8 of her witness statement, the Appellant states that according to the reasons for refusal letter “one of the days was the 30th December 2011”. I have carefully considered the reasons for refusal letter and I cannot find where the Respondent states that the Appellant took a test on 30 December 2011. The only date referred to by the Respondent is 15 January 2013, which is the same as one of the dates referred to by the Appellant [4]. Even if the Respondent had stated that one of the tests was taken on 30 December 2011, given that the Appellant claims to have sat the tests on 28 December 2012 and 15 January 2013, it is unclear why she would then accept that she had taken a test on 30 December 2011.
17. In paragraph 8 the Appellant goes on to state: “Because it was so long ago I cannot remember if this was the first exam or the second. As I remember the exams were a few days apart.” In paragraph 4 the Appellant has stated that she sat the tests on two dates, indicating that she knew that the tests were approximately two weeks apart. It is therefore inconsistent to state in paragraph 8 “as I remember the exams were a few days apart” given that she has already set out the dates on which she took the tests in paragraph 8. I find that the direct contradiction between paragraphs 4 and 8 casts doubt on the reliability of the evidence in her witness statement of having taken the tests. I find that the dates are particularly important. To claim to have taken a test on 28 December 2012 and then on 30 December 2011 within the same witness statement is a significant discrepancy. The witness statement is not an “extremely thorough” account of her taking the tests, as submitted in the skeleton argument, but is an inconsistent and contradictory account.
18. Further, the Appellant stated that it was her tutor who recommended that she sat the TOEIC test [6]. She said that she remembered paying the exam fee to her tutor [7]. She had tried to locate the payment details on her bank statements but she had not been able to do so. She said that she could not recall the exact details given the length of time, and she had not been able to find the corresponding bank statements. While claiming that she paid the fee to a person, her tutor, who then passed the fee onto ETS, she has provided no explanation as to why she cannot recall the exact details given that she claims to have paid the money to an individual, her tutor. She has not given any reason why she paid the fee to the tutor rather than paying the fee directly to ETS or to the college. She has given no indication that her tutor was connected in any way to ETS or to the college. I find that she has failed satisfactorily to explain why she paid her tutor, and why she has not been able to recall the details of the payment, given that she claims to have made the payment to an individual.
19. In paragraph 9 the Appellant states “As I recall the test centre was at New London Collage (sic) in Hounslow.” This information could have been taken from the Respondent’s reasons for refusal letter. She then set out details of the journey, but this is no more than travel information which can easily be obtained at any time. She then sets out how she had to show her passport at reception and leave her bag in a separate area from the test, but most people sitting an exam are not allowed to take bags in with them. Her evidence is vague and unspecific.
20. In paragraph 10 she states that both exams started mid-morning, she thinks around 11am. She states that it was like an office with table set in rows with a computer on the table. She states “I think there were two staff members who were in charge. They showed us where to sit, and checked our identification.” Again, even given the passage of time from the date of the examination to the reasons for refusal letter, which is when the Appellant would have started to recall what happened at the test, I find that this is vague.
21. I find that, although the Appellant has claimed to have set out in some detail her experience of sitting the test, there is a significant discrepancy in the dates that she claims to have sat the test, and the period of time in between. On the one hand she claims to know the exact dates, yet on the other claims that they were a few days apart, with the first one in December 2011. This goes to the core of her claim to have sat the tests. Further, there is no explanation as to why she paid her exam fee to her tutor rather than to ETS or to the college where she sat the test. Much of her evidence is vague, even given the passage of time. Given this, I find that the Appellant has failed to discharge the evidential burden, and I therefore find that the error is not material. Even had the judge considered her witness statement in more detail, given the contradictions he would not have been able to find on the basis of the evidence in her witness statement that she had discharged her evidential burden.
Article 8
22. The judge considered Article 8 in [23] and [24]. At [23] he considers the Appellant’s British citizen child. He finds at the end of the paragraph that “her interests would probably be best served by allowing her to remain in the UK but that is not in itself a trump card.”
23. Although section 117B is mentioned in the decision [18], there is no specific reference to section 117B(6). To the extent that the judge deals with this section, it is in the second half of [24], page 7 of the decision.
“The child is not yet at school and, indeed, is not yet three years old. The medical evidence is well short of proving her eczema would be likely to become significantly worse in Nepal, where her families both have relatives with whom it would appear her father has maintained links quite recently. Even if she and her mother cannot be accommodated with his relatives, the partner should be able to finance modest accommodation and Nepal is a country in which the mother remained well past her majority, only leaving it when she was 25.”
24. The judge then turns to consider the circumstances were the Appellant to depart from the United Kingdom. However, the test under section 117B(6) is whether it would be unreasonable for the child to leave the United Kingdom. The whereabouts of the Appellant does not come into the consideration under 117B(6).
“The mother’s departure from the UK would not necessarily mean the child would have to leave with her as it would appear clear that the paternal grandparents, who live in the same town as they presently do, would be likely to be supportive. It would be a matter for the child’s parents whether she goes with the mother, or remains with the father, or both parents leave. In all the circumstances it would not be unreasonable to expect the child to leave the UK if they agree that is for the best. The circumstances in Nepal are clearly not easy, but they do not present insurmountable or very significant difficult obstacles and neither parent can never have had any legitimate expectation that their life together would be in the UK.”
25. There is no test under section 117B(6) of any “insurmountable or very significant difficult obstacles”. This language is a mixture of that from paragraph EX.1(b) and paragraph 276ADE(1). It does not feature in section 117B(6) where the only test is of reasonableness.
26. It is unclear whether the judge has properly considered section 117B(6). There is no direct reference to this section. It appears that he has assessed the situation on the basis that the Appellant’s partner remains in the United Kingdom and sponsors the Appellant’s return. “The reality is probably that the Appellant’s partner will choose to remain in the UK in order to sponsor the Appellant’s return, perhaps accompanying her for a short stay in order to see her settled before returning to his job in the UK.” This is not the basis on which section 117B(6) should be considered.
27. Putting aside those parts of paragraph 24 where there are irrelevant considerations for the purposes of section 117B(6), the extent of the consideration of section 117B(6) is that set out in paragraph [18] above. This is an inadequate consideration of whether it is reasonable to expect a British citizen child to leave the United Kingdom, irrespective of the judge’s finding in relation to the TOEIC tests.
28. I find that the judge erred in failing adequately to consider section 117B(6). I find that this is a material error of law. I set aside the decision in relation to the Article 8 consideration. I preserve the finding that the Appellant had not discharged the evidential burden in respect of the TOEIC tests.
29. As agreed at the hearing, were I to find that the decision involved the making of a material error of law, I would go on to remake the decision on the papers before me.
Remaking
Article 8
30. I find that the Respondent was entitled to refuse the application under the suitability requirements of the immigration rules as the Appellant did not discharge the evidential burden (see [16] to [21] above). I find that she cannot meet the requirements of the immigration rules.
31. I have considered the Appellant’s appeal under Article 8 outside the requirements of the immigration rules in accordance with the case of Razgar [2004] UKHL 27. I find that the Appellant has a family life in the United Kingdom with her partner and her daughter. They are both British citizens. I find that the decision to remove the Appellant would cause an interference with their family life. I find that the Appellant has been in the United Kingdom since May 2011 and has established a private life in the United Kingdom sufficient to engage the operation of Article 8. I find that the decision would interfere with her private life.
32. Continuing the steps set out in Razgar, I find that the proposed interference would be in accordance with the law, as being a regular immigration decision taken by UKBA in accordance with the immigration rules. In terms of proportionality, the Tribunal has to strike a fair balance between the rights of the individual and the interests of the community. The public interest in this case is the preservation of orderly and fair immigration control in the interests of all citizens. Maintaining the integrity of the immigration rules is self-evidently a very important public interest. In practice, this will usually trump the qualified rights of the individual, unless the level of interference is very significant. I find that in this case, the level of interference would be significant and that it would not be proportionate.
33. In assessing the public interest I have taken into account section 19 of the Immigration Act 2014 which inserted a new section 117B into the Nationality, Immigration and Asylum Act 2002. Section 117B(1) provides that “the maintenance of effective immigration controls is in the public interest.”
34. It was found by the judge that the Appellant’s command of English was good [22] (section 117B(2)). Evidence provided for the appeal showed that the Appellant’s partner was earning approximately £29,000 per annum working for Mitie as a Helpdesk Administrator. I find on the balance of probabilities that the Appellant and her family are financially independent (section 117B(3)).
35. Sections 117B(4) and 117B(5) are not relevant to family life. Section 117B(6) provides that 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”. The Appellant’s daughter is a British citizen and is therefore a qualifying child. I find that the Appellant has a genuine and subsisting parental relationship with her.
36. In considering whether or not it is reasonable to expect the Appellant’s daughter to leave the United Kingdom, I have taken into account her best interests. I have also taken into account section 55 of the 2009 Act.
37. I find that it is in the Appellant’s daughter’s best interests to live with both of her parents. The decision would result in her separation from her mother, which is not in her best interests.
38. I find that the Appellant’s daughter was born in the United Kingdom on 5 November 2013. She is three years old. I find that she has lived in the United Kingdom since her birth. There is no evidence in the witness statements to indicate that she has started any form of education, given that she is only three years old. I have no evidence before me that the Appellant’s daughter speaks Nepalese.
39. Evidence was provided to show that she has atopic eczema (page 28 of the Appellant’s bundle). I have carefully considered this letter, although the copy in the bundle is not complete. This letter is dated 3 June 2015, but there is no more up-to-date medical evidence than this. This letter states that the Appellant’s daughter is “thriving and well”. It states that she has “a dry skin generally and has eczema particularly on the hands today”. It states that management of her eczema was discussed, and her parents were happy with this management plan. The treatments prescribed are a moisturising cream and a steroid cream. I do not have any medical evidence to indicate whether these creams are still prescribed.
40. I have considered the evidence in the witness statements regarding the Appellant’s daughter’s eczema. The Appellant refers to it only by reference to the statement of her partner. He states that his daughter has “severe” eczema. However this is not corroborated by the medical evidence provided, where there is no mention of it being “severe”. If her condition had become worse, I would have expected to see further medical evidence from consultants to show this. He states that he fears that medical ointment will either be unaffordable or non-existent in Nepal.
41. I was referred to an article from Al Jazeera online dated 30 November 2015 (page 41 of the bundle). This is dated some nine months prior to the hearing in the First-tier Tribunal, and over a year prior to the appeal before me. The article is entitled “Millions of Nepalese children at risk from shortages, says UNICEF”. It states that there are severe shortages of vaccines which have left millions of children at risk of disease or death “this winter”. It refers to disruption been being caused to medical supplies after a key border crossing had been blockaded. The article refers throughout to problems that this will cause “this winter”, i.e. the winter of 2015/2016.
42. It was submitted by Mr. Jowett that it was not likely that there would be any medicine specific evidence referring to the creams used by the Appellant’s daughter. This may be the case, but the evidence that I do have is out of date and refers to particular problems which were being suffered in the winter of 2015/2016 due to a blockade on the border. The Appellant’s partner states in his witness statement that the blockade has been lifted but “its effects are still being felt across my country”. He has provided no detail of what he means by this. While it is the case that Nepal suffered from a devastating earthquake, the evidence provided does not show that the Appellant’s daughter will not now be able to obtain ointment for her eczema in Nepal.
43. There is no indication in the evidence before me that the Appellant’s daughter’s eczema is as severe as claimed. Neither is there any evidence to corroborate the Appellant’s partner’s claim that her eczema would become significantly worse in Nepal. There is no evidence to corroborate the claim that it is made much worse in high temperatures, as there is no detail given of when she has visited anywhere with very high temperatures. The evidence shows that she was suffering from eczema in 2015. Given the nature of the condition, I find on the balance of probabilities that she still suffers from eczema, but I have no evidence before me as to its severity or to the treatment that she is currently receiving.
44. I find that the Appellant’s daughter is a British citizen with the consequent entitlement to healthcare and education in the UK. She has received medical care in connection with her eczema. Taking into account all of the above, I find that it would be in her best interests to remain in the UK.
45. Although I have found that it is in her best interests to remain in the UK, under section 117B(6) it is necessary to consider whether it is reasonable to expect her to leave the UK. The judge found that “it is clear that earthquakes did cause devastation in Nepal, making accommodation, food, fuel and medicines less available”. This is not in dispute.
46. I have considered the Appellant’s partners claim that they would be homeless if they returned to Nepal. I find that the Appellant’s parents live in Nepal. In oral evidence at the First-tier Tribunal she said that her relationship with her partner had caused “very bad feeling with her family back in Nepal” [12]. She did not mention this in her witness statement where she did not address why she could not return to Nepal but instead relied on her partner’s statement [16]. He does not refer to her parents in his statement.
47. I find that the Appellant’s partner’s parents live in the UK. I find that the Appellant’s partner has relatives in Nepal who he visited in 2013. He claimed that his relationship with them was “broken”, as was the relationship with his father, but he also had to concede that he was living rent-free in a house owned by his father. I find on the balance of probabilities that he is in contact with relatives in Nepal, but I have no evidence as to the support that they could offer.
48. While I find on the balance of probabilities that the Appellant, her partner and their daughter would receive some support from relatives on return to Nepal, I find that following the earthquake, conditions are very difficult in Nepal and that there are housing shortages, as well as food and medicine shortages. I have taken into account the evidence at pages 35 to 40 of the Appellant’s bundle. I find on the balance of probabilities that circumstances in Nepal will be difficult for the Appellant’s daughter, a three year old girl, who has never travelled to Nepal, and has lived all of her life in the UK.
49. In the Appellant’s partner’s witness statement he talked about the discrimination that he suffered in Nepal in the past and would suffer because of his caste [8] to [10]. I have no evidence to corroborate these claims. There is no expert evidence regarding the caste system in Nepal or any background objective evidence. The Appellant’s partner claims that their daughter will live in fear of being “publicly humiliated, paraded naked, beaten, and raped with impunity by upper-caste Hindus”. I have no evidence to corroborate this claim.
50. I have taken into account the fact that the Appellant has not discharged the evidential burden in relation to the fraud allegation. However, no blame should be attached to her daughter for this. She is a British citizen who is entitled to remain in the UK. The decision will force the Appellant’s daughter to be separated from her mother, or will result in her having to leave the UK.
51. I have also taken into account the Respondent’s “Immigration Directorate Instruction - Family Migration - Appendix FM, Section 1.0(B) "Family Life as a Partner or Parent and Private Life, 10 year Routes", August 2015”, in particular paragraph 11.2.3. The Respondent’s decision is dated 1 September 2015, so this guidance was in force at the time. This states:
“Save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British Citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child.”
52. It continues:
“Where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case must always be assessed on the basis that it would be unreasonable to expect a British Citizen child to leave the EU with that parent or primary carer.”
53. The guidance goes on to state that there are some situations “where the conduct of the parent or primary carer gives rise to considerations of such weight as to justify separation”. The examples given are criminality and “a very poor immigration history, such as where the person has repeatedly and deliberately breached the Immigration Rules.”
54. This is not a case involving criminality. The Appellant has failed to discharge the evidential burden in relation to the allegation of fraud, but she has not “repeatedly and deliberately” breached the immigration rules. I find that I can give significant weight to the Respondent’s guidance. I find that the Appellant’s circumstances are not of such weight as to justify separation from her daughter.
55. While I have some reservations about the evidence, I find, taking into account all of the Appellant’s daughter’s circumstances, giving particular weight to the fact that she is a British citizen who has never visited Nepal, let alone lived there, and given the difficult circumstances in that country, that it would not be reasonable to expect her to leave the United Kingdom, where she is entitled to receive both health and education owing to her status as a British citizen. I therefore find that section 117B(6) applies to the Appellant.
56. I find, taking into account all of the particular circumstances in the Appellant’s case, while considering the public interest, but giving particular weight to my findings in relation to section 117B(6), that the balance comes down in favour of the Appellant. I find that the Appellant has shown on the balance of probabilities that the decision is a breach of her rights, and those of her partner and their daughter, to a family life under Article 8 ECHR.
57. Given the involvement of a child, I have made an anonymity direction.

Notice of Decision
58. The decision of the First-tier Tribunal involves the making of a material error of law and I set the decision aside.
59. I remake the decision, allowing the Appellant’s appeal on human rights grounds.
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her 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.

Signed Date 6 April 2017

Deputy Upper Tribunal Judge Chamberlain

TO THE RESPONDENT
FEE AWARD
I have allowed the appeals and a fee has been paid. Further evidence was provided at appeal stage. In the circumstances I make no fee award.

Signed Date 6 April 2017

Deputy Upper Tribunal Judge Chamberlain