Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/35403/2014

THE IMMIGRATION ACTS

Heard at The Royal Court of Justice, Belfast
Decision & Reasons Promulgated
On 1 August 2016
On 13 September 2016

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

Aimee [G]
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms M Gavin, instructed by Francis Hanna & Company
For the Respondent: Mr M Matthews, Senior Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of the Philippines, born in 1975. On 12 August 2013 she applied for a derivative residence card as the primary carer of a British citizen residing in the UK - her child, born 17 August 2006. The child's father is a British citizen.
2. The Secretary of State refused this application in a decision of 29 August 2014. The appellant appealed such decision to the First-tier Tribunal and that appeal was heard on 23 February 2015 by First-tier Tribunal Judge Fox and dismissed in a decision promulgated on 24 March 2015. Judge Fox refused claims that: (i) the appellant was entitled to a derivative residence card; and, (ii) that the SSHD's decision would lead to a breach of Article 8 ECHR.
3. First-tier Tribunal Judge Holmes granted permission to appeal to the Upper Tribunal in a decision of 21 May 2015. The appeal came before the President of the Upper Tribunal on 19 October 2015 but was adjourned to await the decision of the Court of Appeal in Amirteymour & Ors [referenced in the Upper Tribunal as (EEA appeals; human rights) [2015] UKUT 466]. Although the Court of Appeal has yet to determine Amirteymour it has now ruled on the legal issue therein in its decision in TY (Sri Lanka) [2015] EWCA Civ 1233.
4. At the outset of the hearing Mr Matthews properly accepted, on behalf of the SSHD, that the issue of whether the appellant is her child's 'primary carer' had not been dealt with lawfully by the First-tier Tribunal. I concur with this view.
5. In short, it was the appellant's case that the child's father is severely disabled and unable to look after their son. The First-tier Tribunal rejected this assertion. In doing so it is clear that it either failed to take into account, or misdirected itself to, the evidence before it.
6. At paragraph 11 of its decision the First-tier Tribunal states, inter alia:
"There is no clinical evidence to corroborate the appellant's claim that the partner would be unable to look after his son. DLA documentation only confirms the amount of money Mr Attree receives. It does not help with identifying what restrictions, if any, that Attree has in the activities of his daily life. In the absence of any information to the contrary I must find that Mr Attree has no material restrictions preventing him from fulfilling the role of carer for his child."
7. In fact, there was clear evidence before the First-tier Tribunal, both medical and in the form of DLA documentation, relating to exactly this issue; such documentation providing support for the appellant's contention as to the disabilities, and abilities, of Mr Attree. It is unnecessary in light of Mr Matthews concession to set this evidence out.
8. Furthermore, in paragraph 12 of its decision the First-tier Tribunal 'observed' that Mr Attree did not give any evidence as to his inability to physically assist in the raising of his child. Once again, however, this observation is inaccurate - this evidence being found in Mr Attree's witness statement.
9. Despite the aforementioned that the FtT's decision contains an error of law, Mr Matthews maintained that such decision should not be set aside. In support of this submission attention was drawn to the following conclusion of the First-tier Tribunal, found in paragraph 13 of its decision:
"?there are others in the United Kingdom who can provide family support assistance and maintenance for [the child]"
10. The aforementioned conclusion is, however, itself legally flawed. The starting point in the First-tier Tribunal's mind for the assessment of the level of additional support required by 'other' family members in order to bring the child's overall care package up to the level which would not necessitate its departure from the EU is its earlier conclusion that there is no material limitation on Mr Attree's abilities to fulfil the role of carer for his child [paragraph 11]. In other words, the finding in paragraph 13 relied upon by Mr Matthews is itself infected by the error Mr Matthews has conceded exists in the assessment of Mr Attree's caring abilities.
11. For all these reasons I find that the First-tier Tribunal's decision contains an error of law capable of affecting the outcome of the appeal and I set it aside.
12. Both parties agreed that the appeal should be remitted to the First-tier Tribunal to be considered on a de novo basis. I agree that that is so. The matter should be remitted to a Judge of the First-tier Tribunal other than Judge Fox to be determined afresh, save that the First-Tier Tribunal shall not consider whether the SSHD's decision will lead to a breach of Article 8, in light of the decision in TY
Notice of Decision

The First-tier Tribunal's decision contains an error of law capable of affecting the outcome of the appeal. I therefore set it aside.

The appeal is remitted to the First-tier Tribunal for a judge other than Judge Fox to determine afresh.

Signed:

Upper Tribunal Judge O'Connor
2 August 2016