Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/02614/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision and Reasons Promulgated
on 21st July 2016
On 04th August 2016

Before

upper tribunal JUDGE MACLEMAN

Between

Joan Osayemwenre Ogbomo

Appellant

and

Entry Clearance Officer, Nigeria

Respondent

For the Appellant: Mrs J Moore, of Drummond Miller, Solicitors
For the Respondent: Mr M Matthews, Senior Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a citizen of Nigeria, born on 12th August 1970. She has not asked for an anonymity order.
2. The appellant sought entry clearance as a partner under Appendix FM of the Immigration Rules. By decision dated 5th January 2015 the respondent refused the application in terms of the Rules for absence of evidence of a genuine relationship with the sponsor and of intention to live together permanently in the UK, and for absence of evidence to meet the English language requirement. The application was also refused by reference to Article 8 of the ECHR, outwith the Rules.
3. In her grounds of appeal to the First-tier Tribunal the appellant said that the decision breaches Article 8 rights, is contrary to the Immigration Rules, and otherwise is not in accordance with the law. She insists that she provided evidence of a genuine relationship, including evidence of the birth of an infant son.
4. The appellant and sponsor say that they also have three older children, two of whom are still minor. The youngest child is a British citizen, but not the others.
5. First-tier Tribunal Judge McGavin dismissed the appeal by decision promulgated on 2nd December 2015. The judge found the evidence to lack credibility in almost every respect.
6. The grounds of appeal to the Upper Tribunal are based in part on a "derivative EU law right of residence".
7. Mrs Moore submitted that the appellant ought to have succeeded on a direct application of the Immigration (EEA) Regulations 2006, or based on EU law in light of the Zambrano case, or under Article 8 in respect of some analogy with the Zambrano case.
8. The appellant did not apply under the regulations, and did not refer to them in the grounds put to the FtT. I am unable to detect any case on the basis of the regulations, of EU law more generally, or of Zambrano which might sensibly have succeeded in the First-tier Tribunal or in the Upper Tribunal. The case fell to be decided under the Immigration Rules, or under Article 8 of the ECHR.
9. The appellant sought to support her case in the FtT with a letter from a senior academic of the SOAS, University of London. His credentials are principally as an expert in the history of African art, but also in social anthropology, with a considerable record of research in West Africa and a substantial history of publications. The letter says that the author is a friend of the sponsor and family.
10. The judge found it extremely unlikely that an academic would have written a letter which contained numerous errors of expression and of grammar, and concluded that it was a concoction made up of text from an expert's report (in another case) and material from a genuine academic's website, together with insertion by someone else of material intended to be favourable to the appellant.
11. Without doubt, that scepticism influenced the judge's view of the rest of the evidence.
12. In the Upper Tribunal the appellant tenders evidence from that senior academic to show that he does know the family and was willing to attend to give evidence on their behalf in the FtT, but this was not possible due to short notice and his absence on holiday. He explains that the letter was prepared in haste and was intended as a draft only, not for production in proceedings.
13. There would be no reason to doubt the evidence now offered. It would make a dramatic difference to the credibility of the case (although, for reasons later explained, it would not change the outcome).
14. The judge had to decide the case on the evidence put before her. There is nothing to suggest that she went wrong as a matter of law on that material. Her conclusions about it were sensibly open to her for the reasons she gave.
15. The appellant has not sought to construct an argument that this is an instance where evidence should be admitted to show that a judge made an error of fact, through no fault of her own, which may constructively be held to be an error of law. No such case is available, because the responsibility for the error lies entirely with the appellant.
16. In any event, there was no real scope for this appeal to have succeeded in the FtT or in the UT, even recognizing the letter as genuine. The appellant was bound to fail under the rules on the language requirement. She says she can now meet that requirement as well as the financial and other stipulations of the rules. On that basis, there would be no scope for allowing her appeal outside the rules. It cannot be a disproportionate interference to have to make an application.
17. I deal for future purposes, as requested by Mrs Moore, with other parts of the grounds, although they would not serve to set aside the decision or reach another outcome.
18. The judge went rather far in doubting whether the appellant even intended to enter the UK. There is no sensible explanation for her application and for the pursuit of the appeal in the FtT and in the UT other than that she does intend to enter the UK.
19. The fourth child has been established by DNA evidence to be the child of the appellant and sponsor. The judge went astray in her treatment of the evidence regarding the other three children. She found it significant that the sponsor obtained a British passport for the fourth but not for the three older children. It was common ground between representatives in the UT that as a matter of law the older children, born before the sponsor obtained indefinite leave to remain in the UK, are not entitled to UK citizenship. There is no element of the sponsor's choice.
20. The judge erred also in rejecting the sponsor's explanation of why he had not returned to Nigeria in recent years. It was further common ground that the respondent took several years to deal with the sponsor's application for indefinite leave to remain, during which time his passport remained in their hands, and the rules stipulate that it could not be borrowed without the application being deemed to have been abandoned.
21. I record therefore that the adverse findings of the judge on the nature of the claimed family relationships should not be held against the appellant in any future application. Any such application should be considered on its own merits under the rules.
22. The determination of the First-tier Tribunal shall stand.
23. No anonymity direction has been requested or made.

3 August 2016
Upper Tribunal Judge Macleman