Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/39964/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4th August 2016
On 31st August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD

Between

S M G
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Neale, instructed by Maya Linstrum-Newman Solicitors
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of Nigeria who appealed the Secretary of State's refusal to grant her a residence card as confirmation of a deriviative right of residence to reside here under Regulation 15A of the Immigration (EEA) Regulations 2006. That appeal was dismissed by First-tier Tribunal Judge Mozolowski in a decision promulgated on 17th August 2015.
2. Grounds of Appeal were lodged two grounds. Firstly that the interpretation of Zambrano (C-34/09) was divorced from reality of the Appellant's situation and secondly that there were inadequate reasons given by the judge for the findings and fact that the child's father would be expected to look after her. In particular it was said that the judge had failed to give any adequate reasons for her findings of fact that the Appellant had cut off contact with S's father after learning that he was married and for then speculating that the father was willing to resume contact and could therefore be cared by the father.
3. Permission to appeal was initially refused but granted by Upper Tribunal Judge Hanson who noted that the only issue in the appeal was whether the Appellant's son S would be unable to reside in the UK or another EEA state if the Appellant was required to leave the UK. It was also noted that the Respondent might care to consider ascertaining the situation for themselves and obtaining evidence from the father to assist the Tribunal at the forthcoming hearing.
4. Thus the appeal came before me on the above date.
5. Mr Neale for the Appellant submitted that there had to be a practical not hypothetical standard which was the thread running through the various case law including DH (Jamaica) v SSHD [2012] EWCA Civ 1736. The judge had engaged in extremely speculative factors. The past contact between the father and the child was of considerable vintage and went back to September 2013. It was notable that the local authority were seeking payment from the Appellant's father and he was not cooperating. While the judge was of course entitled to make credibility findings against the mother it did not follow that the judge could then speculate upon the possibility of the father looking after the child. I was invited either to set the decision aside and remit it to the First-tier, or to allow the appeal outright on the evidence already given.
6. For the Home Office Mr Tarlow said he had nothing to say on the point taken by Judge Hanson that the Respondent might obtain evidence from the father to assist the Tribunal. Reliance was placed on the Rule 24 notice and to paragraph 30 of the judge's decision where it was noted that there had been a substantial amount of contact being exercised between the father and the child.
7. I reserved my decision.
Conclusions
8. The parties were agreed that whether or not the father could look after S had to be viewed not on a hypothetical but on a practical basis. Inevitably, in this type of case, there is likely to be an element of uncertainty as to what the parent who does not have custody of the child would do if the mother of the child is forced to go back to her country of nationality. On the facts of this case I agree with the submission of Mr Neale that the judge acted speculatively. There was no evidence that the father would be prepared to look after S in the event of the Appellant departing the country. In my view this could not reasonably be inferred from the facts as we know them as at the date of the hearing and it is at that date that the judge had to look at the position - see Boodhoo and Another (EEA Regs: Relevant Evidence) [2013] UKUT 00346 (IAC). As at that date contact - of any kind - between the father and the child had ceased for a period of almost two years. On that factual basis the judge was not entitled to conclude as she did and made a material error in law in so doing. It is necessary to set the decision aside.
9. The crucial and undisputed fact is that a child's mother stopped contact between the child and his father when she found out that the child's father was already married. He is not supporting the child. As at the date of the hearing the inescapable conclusion is that the Appellant has shown on a balance of probabilities that the child would be required to leave the EEA if the Appellant were to be returned to Nigeria. That being so the Appellant must succeed in this appeal.
Notice of Decision

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside the decision.

I re-make the decision in the appeal by allowing it.

I shall make an anonymity direction having regard to the best interests of the child.

Signed Date 30th August 2016

Deputy Upper Tribunal Judge J G Macdonald