Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/42705/2014
IA/42718/2014
IA/42729/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 February 2017
On 21 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

IK
RON
RON
(ANONYMITY DIRECTION MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DECISION AND REASONS
1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings
2. The first and second appellants are nationals of Ghana whose dates of birth are 18 December 1976 and 16 February 1974 respectively. The third appellant whose date of birth is 6 September 2004 is a British citizen and also a citizen of Ghana. The first and second appellants are the parents of the third appellant. The appellants applied for leave to remain in the United Kingdom on the basis of their private and family life. Those applications were refused by the respondent. All three appeals were heard by the First-tier Tribunal on 14 April 2016. The appeals of the first two appellants were dismissed. The appeal of the first appellant was allowed.
3. The appeals of the first and second appellants were heard before me on 17 February 2017. The full background to the appeals and the issues are set out in my ‘error of law’ decision of 7 March 2017. Following the hearing of the appeals I made the following decision:
‘The failure of the judge to consider whether in fact the appellants’ eldest child did have a choice to remain in the UK without her parents and to consider that in the proportionality exercise was a material error of law and I set aside the decision pursuant to section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 (‘TCEA’).’
4. I decided that the decision could be re-made in the Upper Tribunal with the assistance of further written submissions from the parties.
5. I made the following directions:

1. The respondent is directed to file and serve on the appellant written submissions on the issues identified above, copied to [judge] within 14 days of the release of this decision.

2. The appellant is directed to file and serve on the respondent written submissions on the issues identified above and on any response to the respondent’s written submissions copied to [judge] within 14 days of service of the respondent’s submissions.

3. The respondent may provide any written submission in response to the appellants’ submissions within 14 days of service.

4. If either party fails to provide written submissions within the timescales set out above I will proceed to re-make the decision on the papers before me.

6. On 7 April 2017 I received submissions on behalf of the the respondent and on 14 April 2017 I received submissions and further evidence in the form of a Social Services Report, GP and school letters on behalf of the appellants. I am grateful to the parties for their responses.
Re-Making the decision
7. The re-making of the appeals can be dealt with very shortly. The respondent submits that that as no application had been made for a derivative right of residence card under the EEA Regulations the First-tier Tribunal judge was not under an obligation to consider the Zambrano issue. However, having considered the matter further and in light of SF and others (Guidance, post-2014 Act) [2017] UKUT 120 and on the very particular circumstances of this case the respondent is content for me to allow the appeals under Article 8 of ECHR
8. In light of that concession I do not need to consider this appeal in any more detail to re-make the decision.

Notice of Decision
9. The appeals of the appellants against the decision of the Secretary of State are allowed under Article 8 of the ECHR.

Signed P M Ramshaw Date 17 April 2017

Deputy Upper Tribunal Judge Ramshaw