Tribunal decisions

The decision

IAC-AH-KRL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/30785/2015
IA/11624/2015

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 8 December 2016
On 1 February 2017
Prepared 8 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

mr Jude Clement Ofenor (first Appellant)
miss Helen Omachile Ilemi Kanwei (second Appellant)
(ANONYMITY direction NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms K Parker, Counsel
For the Respondent: Mr I Richards, Senior Presenting Officer

DECISION AND REASONS

1. The Appellants, nationals of Nigeria, dates of birth respectively 6 December 1979 and 11 November 1981 appealed against the Respondent's decision in respect of the first Appellant on 3 September 2015 and the second Appellant against the Respondent's decision of 11 March 2015.
2. Before First-tier Tribunal Judge O'Brien (the judge) on 1 March 2016 their appeals were dismissed on immigration and human rights grounds. No anonymity order was made. The matter was given permission to appeal by First-tier Tribunal Judge Pedro on 1 August 2016. Leave was granted to the Appellants on the basis that whilst the judge had correctly directed himself on the law but that his conclusions and reasons are relatively brief. The grounds raised arguable errors of law; particularly addressing the consideration of Article 8, ECHR outside of the Rules, of the circumstances and best interests of the children. The Appellants have two children who are dependants, Malcolm Ofenor (date of birth 24 May 2013) and Michael Ofenor (date of birth 25 August 2015). Both children were born in the United Kingdom.
3. Having heard the submissions of the parties it seemed to me the following points arose from the brevity of the judge's decision on the key issues. First although addressed on the matter the judge does not really deal with the issue of whether the first Appellant could have met the requirements of Tier 1 requirements under the Immigration Rules; certainly in respect of its relevance to the proportionality of the decision to remove the Appellants. Secondly if the first Appellant met the requirements of the rules but by reason of his overstaying was excluded that was relevant to the proportionality assessment, SS Congo reference to be added. Thirdly the judge, having considered that there were reasons to consider Article 8, ECHR outside of the Immigration Rules, not only should have considered the first Appellant's fulfilment of the Tier 1 requirements as being relevant to proportionality but also he gave insufficient consideration to the effect of removal of the eldest child from his support network in the UK. The eldest child Malcolm has a range of support, medical and otherwise educational in relation to his development for he is on the autism spectrum. Though it appears that there is possibly little merit in the point this matter was not considered sufficiently by the judge.
4. Mr Richards urged the view that effectively the judge's failings, even if he had addressed the matter, would not materially alter the outcome of the appeals and therefore no other Tribunal would have reached the a different view had the matter been properly considered and adequate reasons given. Whatever sympathy one might have with that view as to the general outcome it is trite law that the parties are entitled to receive sufficient and adequate reasons for the decision.
DECISION.
5. I am satisfied in this case the Original Tribunal's decision cannot stand, that there are errors of law and the matter will have to be reconsidered in the First-tier Tribunal.
DIRECTIONS
6. Relist for hearing two hours.
No interpreter required unless the parties inform the Tribunal not less than seven days in advance of the further hearing.
Any updated bundle dealing with Article 8 ECHR issues and in particular health issues to be served not later than seven days by the Appellants on the First tier Tribunal and the Presenting Officers' Unit.
7. No anonymity direction is made.

Signed Dated 30 January 2017
Deputy Upper Tribunal Judge Davey

TO THE RESPONDENT
FEE AWARD
I have allowed the appeal to a limited extent but it has yet to be remade so there should be no fee award at present.

Signed Dated 30 January 2017
Deputy Upper Tribunal Judge Davey

P.S. I regret promulgation has been seriously delayed because the file has been mislocated.