Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/00600/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 September 2016
On 26 October 2016

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

f--- a---
(anonymity direction made)
Respondents

Representation:
For the Appellant: Miss J Isherwood, Home Office Presenting Officer
For the Respondents: Dr R Moffat, Southwark Law Centre

DECISION AND REASONS
(1) Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 I make an order prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the respondent. Breach of this order can be punished as a contempt of court. I make this order because the Respondent is 9 years old and is entitled to privacy.
(2) This is an appeal by the Secretary of State, for the Entry Clearance Officer, against the decision of the First-tier Tribunal to allow the appeal of the present Respondent, hereinafter "the Claimant" against the decision of the Entry Clearance Officer refusing her leave to join her mother in the United Kingdom.
(3) This in many ways is a very unusual case. I do not want to get lost in the procedures but rather to set out what this is really all about.
(4) The Respondent is a child who was born in 2007. In 2008 her mother left her in the Gambia when she was less than year old and travelled to the United Kingdom to pursue a claim for protection which was unsuccessful. Her mother appealed and her appeal was allowed on human rights grounds in December 2011 by First-tier Tribunal Judge Mace. The appeal was allowed solely because the mother had a child born in November 2011 who has Down's syndrome, and it was the view of the judge deciding that appeal that, in all the circumstances of the case, that child could not go to the Gambia. As a consequence the mother and the child were allowed to remain.
(5) For reasons that are not clear the mother had not told anybody in the United Kingdom about the child who is the present Respondent. She also has other children who are now adults, and they, with the present respondent, and two more children born in 1998 and 2003 applied for leave to enter the United Kingdom in September 2014.
(6) The other two minor children were given leave. The Claimant and the two older, now adult, children, were refused leave. The three of them who were refused leave each appealed. The older children were unsuccessful and did not challenge that decision. The minor child was successful and the Secretary of State has challenged that decision. I make it plain (because it is not plain from the way the matters were set out in the papers) that there is only one appeal before me and that concerns the minor child who succeeded before the First-tier Tribunal.
(7) The key paragraph here is paragraph 22 of the Decision and Reasons. In the second part of that paragraph, having reminded himself of the decision in SS (Congo) the judge said:
"However, notwithstanding that observation, the fact of the matter in this case, is that the [Secretary of State] did grant entry clearance to two minor children of the sponsor, namely M and HM, and the only reason given for not granting entry clearance to F was because it was not accepted that she was the biological daughter of the sponsor. As I have noted above, the sponsor has now provided unchallenged DNA evidence to prove that relationship which I have accepted."
(8) With respect, the First-tier Tribunal Judge was clearly right about this. If we look at the decision in the case of the Claimant it is plain that the application was refused solely because the family relationship had not been established. No other reason was offered. The family relationship has now been established and, in short, the First-tier Tribunal Judge said that because the only reason the Claimant was not allowed into the United Kingdom was because the family relationship was not established the fact that family relationship has now been established he should, and did, allow the appeal.
(9) That decision was made on human rights grounds and two criticisms were made. The First-tier Tribunal Judge granting permission gave permission on one ground only. Miss Isherwood asked for my permission to argue the second ground today and because the claimants could not show me any unfair prejudice in being expected to meet the point I gave Miss Isherwood permission to argue both grounds.
(10) The ground on which permission was granted is summarised at point 3 of the judge's grant of permission where the judge said:
"However it is arguable that the judge failed to give adequate analysis and sufficient reasoning to the fact that the sponsor's own leave is precarious when considering that there are 'compelling circumstances' for the third appellant to be granted entry clearance at this time."
(11) I cannot accept that. The compelling circumstances in the judge's mind were expressed at paragraph 23 of the judge's decision. It is perfectly clear that the judge's concern was that this minor child had been treated differently from the other minor children in the case for a completely wrong, albeit understandable, reason, namely a mistaken belief that they were not related as claimed. The judge was trying to re-establish family unity.
(12) The grounds are not critical of the reasoning behind that decision. Maybe there were points that could have been made but they were not made in the grounds and Miss Isherwood properly declined to try to go behind the case that had been pleaded. If follows therefore that there plainly compelling circumstances as required to support a decision to allow an appeal outside the rules and they are obviously identifiable from the Decision and Reasons. The point goes nowhere.
(13) The second point in the grounds is the point I gave permission to argue at the hearing, namely that the Secretary of State complains that no proper regard was had to the public interest. I found the argument rather convoluting. It was said that judge misdirected himself by not appreciating that there was a public interest in excluding a person who does not satisfy the requirements of the Rules.
(14) He did not acknowledge that interest in terms but that is not really the point. The point is that the judge decided that all three of the Claimant's mother's minor children should be allowed into the United Kingdom if two of them were allowed in to the United Kingdom. There is no stronger public interest in keeping out one of the children than there would be in keeping out three. The provisions of family unity by keeping children together are generally regarded as weighty matters.
(15) I think it is necessary to go on to make the point that I anticipate that the effect of this decision will be to give this Claimant leave in line with her mother's. It may be that nothing very much comes of this because it may be that the mother will not be allowed to remain when it is next reviewed. If, as is also a very likely outcome, the mother is allowed to remain for the sake of the Down's syndrome child, all that this decision means is that all the minor children would be allowed to be together in the United Kingdom. That is a decision that was within the options open to the judge and I find that it was reasoned sufficiently and not challenged adequately in the grounds.
Notice of Decision
(16) It follows therefore that I dismiss the Secretary of State's appeal against the decision.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 25 October 2016