Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/48156/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 October 2016
On 31st October 2016

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

Ganiu [L]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Ojukotola, Counsel, instructed by SLA Solicitors
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Nigeria and his date of birth is 20 September 1970. He made an application for leave to remain which was refused by the respondent on 10 November 2014. He appealed against that decision and his appeal was dismissed by Judge of the First-tier Tribunal Maxwell following a hearing on 28 April 2016.
2. The appellant and his partner have two children and their dates of birth are 27 June 2007 and 21 January 2011. It is clear from the Record of Proceedings that at the start of the hearing the appellant amended his evidence. His evidence was not as contained in his witness statement, in which it was stated that the relationship with his partner had broken down. His evidence at the hearing was that the relationship with his partner was continuing and subsisting. The judge did not engage with this evidence and proceeded on the basis that he was not living with his partner or their children.
3. I have taken on board Mr Jarvis' submissions, particularly those in respect of materiality, but I conclude that it is clear that the judge did not engage with the evidence and if he had done so it cannot be said with certainty that he would have rejected the appellant's evidence (although I accept that there are clear and obvious shortcomings in it. I note that there was no witness statement from the appellant's wife and she did not give oral evidence).
4. I wholly reject the assertion of bias which is made in the grounds. However, for the reasons that I have given the judge materially erred and I set aside the decision. The error infects the assessment under Article 8 and the assessment under section 117B (6) (which was considered on the basis that the appellant did not have family life with his partner or their children). I set aside the decision to dismiss the appeal.
5. The judge recorded that the appellant made a concession in relation to paragraph 276ADE. Mr Ojukotola, Counsel representing the appellant before me, now wishes to withdraw from that concession on the basis that 276ADE applies to the eldest child. At the hearing before me the parties were unable to agree the date of the application. Mr Ojukotola argued that the application was made in July 2014. I note that an application was made sometime in 2013 and a series of requests for reconsideration have been made.
6. The First-tier Tribunal will need to determine the date of the application to decide whether 276ADE applies. Both parties are expected to make their respective positions clear at the hearing. The judge will need to consider the date of the application and whether or not to go behind a concession which was made by the appellant's Counsel at the hearing before Judge Maxwell. The First-tier Tribunal will need to make a full assessment of Article 8 including Section 117(6) (b) and depending on the date of the application and the judge's decision in relation to the concession, para 276ADE of the Rules.
Notice of Decision
The judge materially erred. I set aside the decision to dismiss the appeal. The matter is remitted to the First-tier Tribunal for a rehearing.
No anonymity direction is made.

Signed Joanna McWilliam Date 26 October 2016

Upper Tribunal Judge McWilliam