Tribunal decisions

The decision

IAC-AH--V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/02952/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 November 2016
On 8 November 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

MISS GO
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Ms J Isherwood, Senior Home Office Presenting Officer
For the Respondent: Ms M Malhotra, counsel instructed by Kulendran Immigration Law Chambers

DECISION AND REASONS
Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge K Lester, promulgated on 19 May 2016. Permission to appeal was granted by Upper Tribunal Judge Martin on 27 September 2016.
Anonymity
2. No direction has been made previously, and there is no reason for one now
Background
3. On 6 November 2014, an application was made for the respondent, then aged 9, to settle in the United Kingdom as the child of a British citizen. The sponsor is Mr SKO, described on the visa application form as the respondent's father.
4. In refusing that application, on 14 January 2015, an Entry Clearance Officer (ECO) noted that the respondent's birth certificate was dated 21 May 2013 and that her birth was registered on 24 April 2012, more than 7 years after her birth. The ECO remarked that no explanation had been put forward as to why the respondent's birth was not registered at the time she was born or what documents were used to obtain the certificate. The ECO was unable to determine the answers to these questions from other evidence provided. Reference was made to an official statement by Ghana Immigration Service regarding the use of false representations to obtain documents including Ghanaian birth certificates. The birth certificate was said to be of limited evidential value as corroboration of the relationship between the respondent and her sponsor.
5. The application was refused was specifically refused under paragraphs 297(1)(e) and (f) of the Immigration Rules. The ECO gave no weight to a document signed by the sponsor and his wife which described him as the respondent's lawful custodial parent because the document contained no details of its origin or that it was a legal document giving the bearer full custody rights. It was not accepted that the sponsor was solely responsible for exercising parental care over a substantial period. The ECO noted the money transfer receipts showing funds remitted to Ghana but did not accept that this showed that the funds were used for the respondent's support. The ECO was not prepared to consider the telephone calling cards provided with the application as evidence of contact, in isolation. The photographs provided were of only two different occasions in different years and the ECO considered it reasonable to expect a parent with sole responsibility to make contact on special occasions on a regular basis regarding schooling, financial support and welfare. Finally, it was noted that no serious and compelling, family or other considerations were raised.
6. Notice of appeal was lodged on 10 February 2015. The grounds of appeal stated that the respondent was the sponsor's biological daughter and that he was taking responsibility for her welfare including school fees, food and clothing since birth. No additional documents were enclosed with the notice of appeal, however an indication was given that further documents would be sent, including a paternity test result.
7. An Entry Clearance Manager's review, dated 27 March 2015 and noted that no new evidence had been submitted and that there was no evidence of the respondent's guardian having health problems or her other guardian having moved away.
The hearing before the First-tier Tribunal
8. At the hearing before the First-tier Tribunal, the judge heard oral evidence from the sponsor. DNA evidence was also provided which the judge considered put the paternity of the respondent "beyond doubt." Despite finding that the respondent's mother had some involvement in her life; contrary to the evidence of the sponsor; the judge accepted that the sponsor was solely responsible for the respondent's upbringing and allowed the appeal under the Rules.
The grounds of appeal
9. The grounds of appeal in support of the application argued that the judge's reasons were inadequate in view of the evidence that the respondent's mother still had an input in her life. Furthermore, it was argued that the respondent's circumstances did not suggest she was living in squalor or not progressing at school and her uncle's lower back pain did not render him incapable of looking after her. Neither 297(1)(e) or (f) had been established. It was submitted that financial support from the sponsor and contact could continue as before.
10. Permission to appeal was granted on the basis that it was arguable that the judge, having made several adverse findings, erred in allowing the appeal and applying the incorrect standard of proof to the question of sole responsibility.
11. The respondent's Rule 24 response, received on 4 November 2016, argued, in essence, that the judge correctly directed herself and that her reference to the wrong standard of proof was a typographical error and if it were not it was an immaterial error.
The hearing
12. Ms Isherwood drew my attention to a number of adverse findings made by the judge regarding the respondent's mother. The judge rejected the submission made on the respondent's behalf to the effect that a reference to both of the appellant's parents in a letter from her school, was no more than a typographical error. The judge rightly noted that the respondent's birth certificate was issued, with the involvement of her mother, years after her mother was supposed to have disappeared. At [37], the judge reached the view that the mother's whereabouts were not unknown and that she was not inaccessible. At [40] the judge found that the respondent's mother tacitly agreed to the respondent going to live in the United Kingdom. Ultimately, Ms Isherwood argued, the judge made no clear findings regarding the role of the mother in the appellant's life, which she was required to do. The judge's findings ought to have led to a conclusion that the sponsor did not have sole responsibility for the respondent's upbringing. Furthermore, in deciding the issue of sole responsibility, the judge referred only to financial responsibility taken by the sponsor, which was not enough; TD (Paragraph 297(i)(e): "sole responsibility") Yemen [2006] UKAIT 00049, considered.
13. Expanding on TD, Ms Isherwood argued that the judge failed to approach the questions identified in that case, with specific reference to [52] (i),(ii), (iv), (v) and (vi). Given her findings that both the respondent's parents were involved in her upbringing, the issues raised in (iv)-(vi) had not been resolved.
14. In response, Ms Malhotra asserted that it was "clear" that the judge used the civil standard of proof because she considered the evidence on both sides. She reiterated that it was clear from the judge's wording that she considered the balance of probabilities. I was referred to no part of the judge's decision in this respect.
15. Ms Malhotra argued that even if the respondent's mother was in the picture, there was no evidence before the judge to show that she had any involvement in the child's upbringing. At [40], the judge had referred to the correct test, that of whether the sponsor had sole responsibility for making the major decisions in the respondent's life.
16. Ms Isherwood closed her submissions by arguing that it could not be said that the judge's reference to the lower standard was a typographic error.
Decision on error of law
17. At the end of the hearing, I announced that the judge made a material error of law. My reasons are as follows.
18. The application for entry clearance indicated that the respondent had been effectively abandoned by her mother since June 2010 when the latter left and did not return. The judge noted at [35] that the respondent's mother had been the informant when the respondent's birth was registered in 2012; that the school letter dated 3 November 2014 referred to the wish of both parents to secure a visa for the respondent and at [36] that the respondent's statement makes no mention of being abandoned by her mother and never seeing her. At [37] the judge finds that the respondent's uncle is responsible for her day to day care and that she did not accept that her mother was inaccessible and her whereabouts unknown. The judge further found, at [38] that both parents agreed that the respondent should go to the United Kingdom.
19. While the judge accepts that the sponsor sends money regularly and has been in touch with the school, on occasion, she does not truly engage with the questions set out in TD. In particular at [52 iv], "if both parents are involved in the upbringing of the child, it will be exceptional that one of them will have sole responsibility." From the judge's findings, it is apparent that the respondent's mother had not disappeared and furthermore she was in contact with the school and agreed with plans to send her to the United Kingdom. The judge's decision fails to give any reasons as to why she considered that responsibility for the respondent's upbringing was not in fact shared by both parents. Nor is there any engagement with (iii), given that the respondent was said to have been cared for a number of other relatives in the absence of the sponsor.
20. The errors in relation to the judge's approach to sole responsibility were compounded by her reference to "the lower standard of proof" in [41] of the decision, in relation to the key issue as to whether the sponsor had the required level of responsibility. The judge did not give any indication in the rest of her decision that she had correctly directed herself. Indeed, Ms Malhotra did not refer me to a single passage in support of her submissions.
21. Ms Malhotra urged me to remit this matter, de novo, to the First-tier Tribunal. I agreed to do so, with no findings preserved given that the judge's findings did not rationally follow from the evidence before her. I was also concerned regarding the poor-quality DNA evidence relied upon by the respondent which made no reference to any identities having been checked before the blood samples were taken. I understand that the clinic in question is no longer in operation. Regardless of what was said by Judge Lester, the DNA evidence provided does not put the question of the relationship between the respondent and the sponsor beyond doubt and the sponsor may wish to consider obtaining reliable DNA evidence for the re-hearing of this appeal.

Decision
The making of the decision of the First-tier Tribunal did involve the making of an error of on a point of law.
The decision of the First-tier Tribunal is set aside.
The appeal is remitted, de novo, to the First-tier Tribunal to be reheard at Taylor House, with a time estimate of 2 hours by any judge except First-tier Tribunal Judge Lester.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed

Date: 21 July 2020

Upper Tribunal Judge Kamara