IA/43336/2014

• Status of case: Unreported
• Hearing date: 7 Dec 2015
• Promulgation date: 4 Jan 2016
• Publication date: 2 Sep 2016
• Last updated on: 2 Sep 2016

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/43336/2014


THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 December 2015
On 4 January 2016



Before

DEPUTY UPPER TRIBUNAL JUDGE MAHMOOD


Between

CUDKOUR YAKUBO
(anonymity direction NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT


Respondent

Representation:

For the Appellant: Miss G Kiai, Counsel, instructed by Turpin Miller
For the Respondent: Miss Sreeraman, Home Office Presenting Officer


DECISION AND REASONS

1. This is my extempore decision following this afternoon's error of law hearing. The matter had come before me following a decision of First-tier Tribunal Judge Brennan whereby permission to appeal had been granted by way of a decision dated 5 August 2015. This appeal relates to Article 8 only because Judge Brennan had only granted permission to appeal in respect of Article 8. He had said (page A3 of the bundle at paragraph 3):

"The grounds submit that the judge erred in law in that he made contradictory findings as to whether it was or was not proportionate to remove the Appellant - paragraph 42, disproportionate, paragraph 47, not disproportionate. This submission is arguable."

2. The original appeal hearing had taken place before First-tier Tribunal Judge Lodge at Sheldon Court, Birmingham. Judge Lodge had considered both the protection issue and Article 8 issue in relation to the appeal.

3. In clear findings Judge Lodge has said at paragraph 28.

"I do not find the Appellant to be a credible witness for the following reasons."

The judge then set out various reasons why he did not find the Appellant to be a credible witness. In fact he thought that the appellant was a liar. Judge Lodge then went on to consider Article 8 and said the following at paragraph 39,

"I move on to consider his Article 8 claim. It was not suggested that he falls within Appendix FM or 276ADE. I begin by having regard to the report of the independent social worker Judi Lyons at pages 20-30 in the Appellant's bundle. The most pertinent question asked is at paragraph 15. What impact would the removal of the Appellant have upon the two children of the Appellant's partner? ..."

4. At paragraph 41 the judge set out in quite a long paragraph the following:

"Whilst I have expressed [my] reservations about the evidence of the Appellant I am satisfied having heard him and more particularly his partner that they are in a genuine and subsisting relationship and have been for some six years. I also have letters from the two children at pages 31 and 32 describing their relationship with the Appellant whom they describe as dad or stepdad. I start therefore from the premise that the Appellant is and has established that he is in a committed relationship akin to marriage with Miss F and is a father of her two children. I have regard to Nagre. I am satisfied that there are insurmountable obstacles to family life continuing for the appellant, his partner and two children in Ghana. His partner does not speak Ghanaian and neither do the two children who are both, of course British citizens, and enjoying the benefits of education in this country. Against that I must balance the fact that a family life which the appellant enjoys was created at a time when he and his partner were aware that his immigration status was such that the persistence of family life within the host state (this country) would from the outset be precarious. Indeed where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8. ..."

5. There was discussion during the hearing today as to whether contradictory findings were made when considering paragraphs 42 and 47 of the decision. At the end of paragraph 42 it was said, "It would be disproportionate to remove the appellant" and at 47 it is said, "I cannot find that it would be disproportionate to require the appellant to return to Ghana". Was a removal proportionate or not? I shall return to this in a few moments.

6. I have considerable sympathy for the First-tier Tribunal Judge's concerns about the task at hand in having to deal with the Appellant with a very poor immigration history. The starting position though is that there is no reference in the decision to Section 117A-D of the Nationality, Immigration and Asylum Act 2002 which was an amendment brought by Section 19 of the Immigration Act 2014. The provision applies as of 28 July 2014 and because Judge Lodge's decision is dated 3 April 2015 (see page A18) then this mandatory section had to be taken into account.

7. I accept of course that the specific section need not be referred to if regard has been had to that provision in substance. However in my judgement it is not possible to easily decipher that the judge did have regard to Section 117. Indeed, instead the House of Lords' decision in Chikwamba is referred to at paragraph 44 and it is very difficult to conclude that the judge took Section 117 into account. As I discussed during the hearing with Miss Kiai, the judge noted at paragraph 41 that he was dealing with British children. In my judgement it is therefore obvious that Section 117 had to be taken into account.

8. Despite it being an obvious point this was not a clear ground raised in the grounds of appeal originally drafted by different Counsel meaning no disrespect to that person, and similarly Miss Kiai did not raise Section 117 before me today either. However, canvassing the point with the Presenting Officer she very fairly noted that this appeared to be a glaring omission. Although initially she sought to contend on behalf of the respondent that perhaps regard might have been had to section 117. But as I say, looking at the determination as a whole, in particular paragraphs 43 onwards, it is not possible to see that the judge had regard to section 117.

9. In those circumstances I conclude that there is an error of law in the decision of First-tier Tribunal Judge Lodge.

10. I canvassed with the parties as to whether the matter could proceed further today. There is no disagreement that the matter has to return for further consideration. Therefore that will be before the First-tier Tribunal at Sheldon Court, Birmingham. It will not be before Judge Lodge.

11. I stress and I make it clear that I am not indicating what the ultimate result might be, particularly because the Judge at the further hearing will have to consider section 117 as a whole and take into account the Appellant's immigration history. I also note the adverse findings which have been made in relation to the asylum aspect. I canvassed with the parties as to whether or not the argument about contradictory findings in respect of Article 8 means that the decision in respect of Article 8 as a whole has to be set aside.

12. In my judgement it does. The findings in respect of the protection claim shall remain though. That is because the findings in respect of the protection claim are clear and they were never appealed. However, the Appellant did appeal the Article 8 findings and indeed his very ground was that the findings in respect of Article 8 were contradictory and it was on that very ground that permission was granted. Therefore despite Miss Kiai's submissions I am against her that the "favourable" findings in respect of Article 8 should somehow remain.

13. In my judgement it is clear there needs to be a wholesale reconsideration of the Article 8 aspect of this case and indeed of the factual matrix that pertains to it. To be absolutely clear, Judge Lodge's findings and decision in respect of the protection claim remain. However, Judge Lodge's decision in respect of Article 8 and his findings in respect of Article 8 are set aside.

14. As to the future conduct of the appeal, the parties shall prepare for the hearing which will take place before the First-tier Tribunal, in the following way:

1. The Appellant shall file with the Tribunal and serve on the Respondent a bundle of documents relied upon including any witness statements 21 days before the hearing at the First-tier Tribunal hearing;

2. There shall be a skeleton argument (with authorities relied upon attached) filed and served 21 days before the hearing.

3. The Respondent shall file and serve a skeleton argument 7 days before the hearing.

Notice of Decision

15. The original appeal involved the making of a material error of law in respect of Article 8 only. The decision and finding in respect of Article 8 are to be reheard and remade at the First-tier Tribunal at Sheldon Court, Birmingham or such other hearing centre as the Resident Upper Tribunal Judge at Birmingham might direct.

16. There is no anonymity order made.

Signed Date


Deputy Upper Tribunal Judge Mahmood