Tribunal decisions

The decision

IAC-AH-pc-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/42413/2013

THE IMMIGRATION ACTS

Heard at Centre City Tower
Decision & Reasons Promulgated
On 26th June 2015
On 9th July 2015

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

JN
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No legal representation
For the Respondent: Mr N Smart (HOPO)

DECISION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Sangha, promulgated on 1st October 2014, following at hearing at Birmingham on 30th July 2014. In the determination, the judge dismissed the appeal of JN. The Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
2. The Appellant is a female citizen of Kenya who was born August 1978. She entered the UK in July 2008 as a domestic worker. She has been looking after three children whilst the children's mother has been studying at university and the father is working in Sweden. On 3rd July 2013 the Appellant applied for leave to remain on the grounds of her private and family life. This application was rejected on 6th August 2013 by the Respondent on grounds that an Article 8 application from 9th July 2012 falls under paragraph 276ADE of the Immigration Rules.
The Judge's Findings
3. The judge heard evidence from EK, and she gave evidence that the Appellant now lived with her at her home address and that "she and her children have developed a very strong relationship with the Appellant and that they are emotionally attached to her and it would not be in the children's best interests if the Appellant were now forced to return to Kenya" (paragraph 11). The Appellant provides the children with "childcare, cooking and assists the children with their homework" (paragraph 11). The judge held that the Appellant had originally been granted a domestic worker visa in a diplomatic household from June 2008 until June 2009, but because of mistreatment, she left that employer when she met EK, and began living with her. The judge observed that, "despite the fact that the Appellant appears to have changed her employer she has not made any application to extend her stay in the UK on the basis that she is now employed by a different employer" (paragraph 15). Nevertheless, the judge concluded that "the Appellant has no family relationship with EK or her children". She may have established a private and family life with Emily and the children for the past three and half years but the Respondent's decision was in pursuance of the legitimate aim of maintaining immigration control. The Appellant had her parents in Kenya. Her six brothers and three sisters lived in Kenya. Moreover, there were no exceptional circumstances (see paragraph 16). The appeal was dismissed.
Grounds of Application
4. The grounds of application state that the judge erred in law in overlooking the full extent of the private and family life of the Appellant.
5. On 2nd December 2014, permission to appeal was granted on the basis that, as the grounds state, one of the children is particularly vulnerable, as she was the victim of sexual assault whilst attending a church Sunday school. But there is no mention of this in the judge's determination. In granting permission, it was stated that, "what is clear however, is that the Appellant and the children enjoyed an extremely close relationship and that the Appellant was considered to be part of the family" (paragraph 2). Given that this was the case, proper consideration ought to have been given to Section 55 of the 2009 Act. This would have allowed the judge to look at the best interests of the children with respect to whether or not they could properly be returned to Kenya. This was not done.

Submissions
6. At the hearing before me on 26th June 2015, JN, the Appellant, appeared herself to make submissions. She said that she has lived with the children for a very long time and that they love and need her. She has always been there for them. The mother, EK was alone. She has always been there for the children always.
7. For the Respondent, Mr Smart submitted that I should have regard to the Rule 24 response. This was dated 11th December 2014. The judge did give proper regard to the relationship between the Appellant, her employer, and the employer's children (see paragraph 16). There was no blood relationship with either the employer or children and no dependency. There was no submission that the children are dependent on the Appellant. There was no submission that the children would come to any harm if the Appellant is required to leave to the UK. Section 5 of the BCIA is designed for the protection of children from harm and it does not mean that it has to be factored into every Article 8 evaluation in the consideration of the issues. The judge had applied the law properly. It is possible that the judge can be considered in his consideration of Article 8 at paragraph 16 because of the failure to factor in Section 117B of the Immigration Act 2014. However, the Appellant only had precarious leave and little weight should be given to private life developed in circumstances where there is a precarious immigration status. Therefore, the judge would not have erred in law.
Error of Law
8. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law, see Section 12(1) of TCEA 2007, such that I should set aside the decision. My reasons are as follows. This is a case where the Appellant has been looking after three children over the past five years and all the evidence is that the "children have developed a very strong relationship with the Appellant and that they are emotionally attached to her" (paragraph 11). The judge gave consideration to paragraph 276ADE of the Immigration Rules. He did not apply Section 55 of the BCIA. The effect of this omission was that, whereas in relation to Article 8, regard was given to "the Appellant has not demonstrated any exceptional circumstances as to why she cannot return to her country of origin" (see paragraph 16), no regard was given to the "best interests" of the children. This was important, not least because one of the twins, who was aged 4, had been sexually abused whilst attending Sunday church school and proceedings had been ongoing in the court over the past two years so that on 20th May 2014 the accused was charged at [?] Justice Centre, and there is an excerpt of a newspaper article confirming this. No consideration has been given to this state of affairs in the application of Section 55 of the BCIA. Accordingly, having found an error of law, I now proceed to remake the decision.
Remaking the Decision
9. I have remade the decision on the basis of the findings of the original judge, the evidence before him, and the submissions that I have heard today. I am allowing this appeal for the following reasons. The Section 55 of the BCIA 2009 obligation upon the responsible party has been overlooked by the judge because this was a case where the statutory guidance issued under Section 55 had to be taken into account. In JO (Section 55 duty) Nigeria [2014] UKUT 00517, the Tribunal explained that the decision maker must be properly informed of the position of the child. Being properly informed and conducting a scrupulous analysis is a prerequisite of identifying the child's best interests, and then balancing them with other essential considerations. Performing these duties would be an intensely fact-sensitive and contextual exercise. In this case, there was an administrative failing in this regard with respect to the children. The judge did not engage with this failing. This is a failing of a legal obligation.
10. In Mundeba [2013] UKUT 88 the Tribunal explained that the focus in Section 55 cases is on the circumstances of the child in the light of his/her age, social background and developmental history. The facts here are quite compelling and they have not been taken into account. The judge's determination makes it clear at paragraph 11 that the evidence was that the Appellant and the "children have developed a very strong relationship with the Appellant and they are emotionally attached to her ?". The judge did not consider this in his eventual findings, preferring instead to give consideration to the fact that the Appellant had six brothers and three sisters in Kenya, a country the language of which she spoke, and to which she could easily return (see paragraph 16). Yet, the facts are that one of the twins, at the age of 4, was sexually abused in a church school. A court case has been going on for the last two years. On 20th May 2014 a person was charged.
11. It is the Appellant who has been attending court, as she makes clear in her evidence before the First-tier Tribunal in writing (see her "my reasoning and argument" at paragraph 2) and she makes clear that, "I have accompanied her to every court hearing throughout the proceedings and we have cried many tears along the way and I have stood between the gaps for this family whose father/husband works in Sweden". She explains that the child's mother, EK, is a person who,
"... finds it very hard to trust anyone with her children except myself because I have been there ever since the sexual assault. I can confirm that even though the perpetrator was charged that did not bring closure for this family because there is the element of fear by both parents as to whether their children are safe out there" (paragraph 2).
12. In Mundeba [2013] UKUT 88, the Tribunal made it clear that the Section 55 obligation requires an enquiry into whether there is (a) evidence of neglect or abuse; (b) there are unmet needs that should be catered for; and (c) whether there are stable arrangements for the child's physical care. The assessment involves a consideration as to whether the combination of circumstances are sufficiently serious and compelling.
13. Since the Appellant has not had these matters taken into account, and since the question of the sexual assault on one of the two twins has not been addressed in the determination below, the only appropriate course of action is for this matter to be remitted back to the First-tier Tribunal under Practice Statement 7.2 because the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for the party's case to be put and considered by the First-tier Tribunal. I therefore direct that the matter be remitted to the First-tier Tribunal to be determined by a judge at Birmingham other than Judge Sangha.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This matter is remitted back to the First-tier Tribunal at Birmingham under Practice Statement 7.2 to be determined by a judge other than Judge Sangha at the earliest possible opportunity.
No anonymity order is made.

Signed Date

Deputy Upper Tribunal Judge Juss 9th July 2015