Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/44998/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 August 2016
On 10 August 2016

Before

UPPER TRIBUNAL JUDGE WARR

Between

Secretary of State for the Home Department
Appellant
and

ZOS
(ANONYMITY DIRECTION MADE)
Respondent

Representation:

For the Appellant: Mr L Tarlow, Home Office Presenting Officer
For the Respondent: Ms L Dickinson, Solicitor

DECISION AND REASONS

1. This is the appeal of the Secretary of State but I will refer to the original appellant, a citizen of Nigeria born on [ ] 1973, as the appellant herein.

2. On 23 October 2014 the respondent took a decision to remove the appellant from the United Kingdom. She appealed against the decision and her appeal came before a First-tier Judge on 5 May 2015. The appellant was acting in person on that occasion. There was no Home Office Presenting Officer.

3. The judge accepted the appellant's account. The judge found that the respondent's decision was in accordance with the Rules and that the Rules had been appropriately applied. However he concluded that the decision to remove the appellant was not proportionate in the light of the fact, in particular, of her relationship with her long-term partner and because there were three children of the family, one of whom was British. He found that the appellant had been credible and honest in her evidence as regards her immigration history and she had been supported by her partner and had numerous letters of support from friends and family. The judge accordingly allowed the appeal under Article 8.

4. The Secretary of State appealed and permission to appeal was granted on 20 July 2015. The matter came before Deputy Upper Tribunal Judge McClure on 19 October 2015. In a decision dated 26 January 2016 and sent to the parties on 17 February 2016 the judge found a material error of law in the decision. He found that the judge had failed to have regard to the guidance given in EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874. Consideration had to be given to the best interests of the children in the light of the facts as they were - it appeared that neither the appellant nor her partner had any right under the Immigration Rules to be in the UK. The children's best interests would have to be assessed in that context. The question was whether other factors in the interests of the children were so strong as to override the circumstances with regard to their parents. In assessing the position of the parent consideration had to be given as to whether or not it was reasonable to expect the children to go to Nigeria.

5. The judge accordingly directed a fresh hearing and the hearing was transferred to be heard by me.

6. The appellant attended. As previously, her partner did not attend. There were no updating witness statements and no further bundles or evidence. The position was identical to the position as it had been before the First-tier Judge.

7. I noted that the respondent's notice of the decision on 23 October 2014 referred to an accompanying letter. This letter did not appear in the bundle.

8. The appellant produced a passport for her child born on 15 August 2014. This child was born of a relationship which was not with her current partner during a rift in that relationship. However she and her partner were reconciled and it was her evidence as stated in paragraph 5 of her witness statement before the First-tier Judge that her partner had looked after her son as he did her two daughters. The judge found that the appellant had been credible and honest and accepted all aspects of the account of her relationship with her partner.

9. The appellant's son's British passport was issued on 3 October 2014 prior to the decision, the subject of challenge. Mr Tarlow was able to produce the letter accompanying the refusal on 27 March 2013. Of course at that stage the child had not been born. By the time of the 2014 decision the child had been born and had been issued with a British citizen passport.

10. I adjourned the matter to enable Mr Tarlow to take instructions.

11. It transpired that he was unable to identify any letter accompanying the 2014 decision. In the absence for any reasons for the decision he suggested that the matter should be dealt with by allowing the appeal on the basis that the matter should be remitted to the Secretary of State to give further consideration to the question given that it was clear that a British citizen child was involved. It would be open to the appellant to submit such further evidence as was required about her current circumstances and the circumstances of her partner.

12. It does appear that there is a difficulty in dealing with this case given the absence of a letter which was said to accompany the decision. This was accepted by Mr Tarlow. At the date of that decision, as I have said, the appellant did have a child who had a British citizen passport. It was accepted that the respondent's decision was flawed as being apparently unreasoned. The letter giving reasons for the decision did not accompany the decision and it had not been possible to recover it. Ms Dickinson had no objection to the suggestion that the appeal be allowed and remitted to the respondent for a properly reasoned decision to be made. It does appear important that where a child, particularly a British citizen child, is involved appropriate care and scrutiny is given to the decision and the decision-making process.

13. The appeal is allowed to the extent that it is remitted to the respondent for a fresh decision to be made.

Notice of Decision

14. Appeal allowed as indicated.

Anonymity Order

15. Judge McClure made an anonymity order in this matter. It is appropriate to make such an order in the light of the fact that three children are involved.

Fee Award

16. The First-tier Judge made a fee award in favour of the appellant. In the circumstances of this case I see no reason to interfere with that award.

Signed Date 9 August 2016

G Warr
Judge of the Upper Tribunal