Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/32391/2013

THE IMMIGRATION ACTS

Heard at City Centre Tower, Birmingham
Decision & Reasons Promulgated
On 5th August 2016
On 31st August 2016

Before

DEPUTY upper tribunal JUDGE RENTON

Between

Dionne [F]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Wilson of J M Wilson Solicitors
For the Respondent: Mrs H Aboni, Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The Appellant is a female citizen of Jamaica born on 15th March 1970. She applied for a residence card on the basis that her son [SM], a British citizen, was dependent upon her. That application was refused for the reasons given in the Respondent's letter of 17th July 2013. The Appellant appealed and her appeal was heard by Judge of the First-tier Tribunal Andrew (the Judge) sitting at Birmingham on 2nd February 2015. She allowed the appeal for the reasons given in her Decision dated 12th February 2015. The Respondent sought leave to appeal that decision, and on 5th May 2015 such permission was granted.
Error of Law
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
3. The Judge found that the Appellant had first arrived in the UK on 14th November 2002 when she had been granted six months' leave to enter. Thereafter she formed a relationship with [KM] and their son [SM] was born on [ ] 2003. He had become a British citizen on 1st November 2011 on the basis that his father had had indefinite leave to remain in the UK. The Judge heard evidence that the Appellant's relationship with [KM] had come to an end in or about October 2009, and that he had left their household in September 2011. [KM] had then gone to Jamaica for a holiday and had not returned to the UK. The Judge was not satisfied as to the credibility of this evidence, however, on the basis of evidence consisting of letters from [SM]'s school, a pastor, and a medical practice the Judge found that the Appellant was [SM]'s primary carer, and that [KM] had not cared directly for [SM] in recent years. The Judge therefore found that if the Appellant was obliged to leave the UK, she would go to Jamaica and that [SM] would have to accompany her there. Therefore the Judge allowed the appeal under the provisions of Regulation 15A(7) and Regulation 18A of the Immigration (European Economic Area) Regulations 2006 as the Appellant had a derivative right to a residence card.
4. At the hearing, Mrs Aboni referred to the grounds of application and argued that the Judge had erred in law in finding that [SM] would have to leave the UK on the removal of his mother. The evidence did not show this to be the case. It was not sufficient merely to find that the Appellant was [SM]'s primary carer. Likewise it was not sufficient to find that [SM]'s father had not cared for him in recent times.
5. In response, Mr Wilson submitted that there was no such error of law. The Judge had analysed all of the relevant evidence and had made findings which she had explained and for which she had given sufficient reasons. The Judge had made a clear finding that [SM]'s father was not in contact with him at all. The Judge had come to a realistic assessment of the situation from the evidence before her.
6. I find no error of law in the decision of the Judge which therefore I do not set aside. The Judge carefully analysed all the relevant evidence before her and came to findings of fact which were open to her on that evidence and which she adequately explained. It was not in dispute that the Appellant was [SM]'s primary carer. That much was conceded by the Respondent in the refusal letter. The Judge also found that regardless of whether [KM] had returned to Jamaica, in recent times he had had no involvement with [SM] at all. There was therefore no prospect that he could become the primary carer should the Appellant be removed from the UK. At paragraph 20 of the Decision, the Judge found that there was no one else who might become [SM]'s primary carer. The Judge therefore made no error of law in allowing the appeal.
Decision
7. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside that decision.
The appeal to the Upper Tribunal is dismissed.
Anonymity
8. The First-tier Tribunal did not make a direction for anonymity. I was not asked to do so and indeed find no reason to do so.

Signed Dated 31st August 2016

Deputy Upper Tribunal Judge Renton