Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/00414/2015
oa/00415/2015
oa/00417/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 September 2016
On 19 September 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

TTN
HTN
TMN
(anonymity directioN MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms H Short, counsel instructed by Rahman & Company Solicitors
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. This is an appeal against the decision of First-tier Tribunal Judge Hodgkinson dismissing an appeal against a decision to refuse the appellants' applications for leave to enter the United Kingdom, on human rights grounds.
Background
2. On 16 September 2014, the appellants sought leave to enter the United Kingdom, outside the Rules, in order to be reunited with their mother who has Discretionary Leave to Remain in this country. The visa application form stated that the appellants' father abandoned them in 2010 and that their grandmother who cared for them subsequently was both physically and mentally ill.
3. On 22 December 2014, the ECO refused the said applications with reference to paragraph 297(i)(e) of the Rules, in that the ECO was not satisfied that the sponsor had sole responsibility for the appellants' upbringing. The ECO took into consideration an interview with the appellants' maternal grandmother in reaching that decision.
4. The appellants duly appealed and in the grounds it was argued, in the main, that the they were living in serious and compelling circumstances, in that their grandparents were elderly and in poor health. It was also contended that the appellants' mother was solely responsible for their financial support.
5. An Entry Clearance Manager (ECM) reviewed the decision to refuse entry on 25 June 2015, however the decision was maintained, except that the applications ought to have been refused under paragraph 301 of the Rules because the sponsor held limited leave to remain in the United Kingdom.
6. At the hearing before Judge Hodgkinson on 5 January 2016, the sponsor gave evidence. The judge concluded that the requirements of paragraph 301(i)(b) and (c) were not met and further that the decisions did not amount to a breach of their Article 8 right to a family life.
Error of law
7. The two grounds of application argue, in the main, that the judge materially erred in taking into consideration what the ECO had to say about the interview with the appellants' grandmother when that interview record had not been produced. Secondly, it was said that the judge failed to consider Article 8 properly.
8. Upper Tribunal Judge Plimmer granted permission, on 1 August 2016, on the basis that it was arguable that the judge erred in his treatment of the answers said to be given by the grandmother when that interview record was not before him; that it was arguable that the judge did not engage with the evidence that the grandparents were unable to look after the appellants and that he arguably erred in requiring updated medical evidence in an entry clearance case. All grounds were said to be arguable.
9. The Secretary of State sent a response to the grant of permission, which was received on 16 August 2016. The respondent opposed the appeal, stating that the appellants had been on notice of the evidence relating to their grandmother's interview and no case had been advanced that she had not made the statements attributed to her. It was stated that the judge did not fall into error in requiring updated medical evidence given that the reports available pre-dated the decisions by 5 months and that no further medical evidence had been provided in response to the decisions or the ECM's review.
The hearing
10. At the hearing before me, Ms Short, as part of her arguments in relation to the Rules, submitted that the interview record of the appellants' grandmother had never been provided and that in placing significant weight upon the ECO's description of the content of that record, procedural unfairness had ensued. The sponsor had addressed the issues referred to in the claimed interview record, however she had not been cross-examined on what it is claimed the grandmother said. Ms Short further argued that the judge's finding regarding the school letters being "self-serving" was insufficient for him to conclude that no weight should be attached to them. She also disputed the judge's description of the letters in that manner. With regard to the judge's rejection of the medical evidence on the basis that it was not up to date, Ms Short said that it was an error in an entry clearance case for such a finding to be made and in any event it did not justify the judge attaching no weight to such evidence.
11. Ms Short criticised the judge's Article 8 findings in the following respects. Firstly, the judge had given inadequate weight to the sponsor's British citizen child, had erred in stating that this child could resume life in Vietnam when she had never lived there and when weighing up the various competing interests, showed no recognition of her circumstances. Secondly, in determining the best interests of the appellants, the judge placed too much emphasis on the status quo rather than assessing the case on the basis that they were living with elderly grandparents and lastly, while the judge listed various case-law at [48], these cases mainly concerned deportation and it was unclear what points the judge was taking.
12. In response, Mr Walker confirmed that the interview record of the grandmother had never been provided to the parties. He accepted that weight was placed by the judge on the ECO's account of that interview, possibly too much in the circumstances. With regard to the medical evidence, Mr Walker added that the evidence from the schools also referred to the medical condition of the grandmother.
Decision on error of law
13. At the end of the hearing, I announced that the judge made a material error of law and that his decision is set aside in its entirety. My reasons are as follows.
14. The notices of decision contained the following passages;
"Your mother abandoned you and your siblings in 2009 to go to the UK. Your maternal grandmother confirmed this during interview."
"Your maternal grandmother has stated that you have lived with her in her household and she has looked after you since you were approximately 8 years old. I am not satisfied that your sponsor is presenting an accurate picture of your circumstances in Vietnam."
"Your grandmother has confirmed that your mother has never travelled back to Vietnam to visit you, and when she has contacted your grandmother regarding your welfare it will be no more than once a month or once every two months."
"? even your grandmother has confirmed that due to financial difficulties your mother cannot send regular funding."
15. It is common ground that the interview record was never produced. The respondent contends that the sponsor would have been aware of the respondent's case even in the absence of the record and that the claimed extracts of the interview were not in dispute. It is the case, that the sponsor's witness statement does not address the said content of the interview head on, however it is clear from that document that her account of the appellants' circumstances is at odds with what the respondent claims the appellants' grandmother said. It was therefore unfair that if the respondent was intending to rely on that record that it was not produced.
16. The judge placed weight on the ECO's account of the interview record at [28] of the decision and reasons. Furthermore, he found that the sponsor's account was inconsistent with that of the grandmother. It is apparent from his overall findings, that the judge preferred what the ECO had to say about the interview of the grandmother rather than the sponsor's oral and written evidence and placed decisive weight on the former.
17. The sponsor was not cross-examined regarding the conflict between her account and that attributed to the appellants' grandmother and nor, it would appear, did the judge raise his concerns at the hearing. In these circumstances, the judge's findings regarding sole responsibility cannot be sustained. This issue alone suffices to amount to a material error of law. I also find that there is merit in Ms Short's arguments as to the judge's wholesale rejection of the school letters and medical evidence.
18. I was unable to proceed to remake the decision because neither party was in a position to go ahead. Mr Walker needed to obtain the interview record and immediately prior to the hearing Ms Short was made aware of further evidence which the appellants might wish to adduce

Conclusions
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision to be re-made.

Directions
This appeal is remitted to be heard, de novo, by any First-tier Tribunal Judge except Judge Hodgkinson and Judge Colyer
The appeal is to be listed for a hearing at Hatton Cross
Time estimate is 2 hours
The First-tier Tribunal is to give consideration to an early listing of this appeal owing to the age of the appellants
Should the respondent wish to rely on the interview record of the appellants' grandmother, this is to be serve on the appellants' representatives and the IAC within 28 days
A Vietnamese interpreter is required

19. No anonymity direction was made by the First-tier Tribunal. In view of the fact that the appellants are minors, I consider it appropriate to make the following anonymity direction:
"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 appellants. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. "

Signed: Date: 16 September 2016

Upper Tribunal Judge Kamara