Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/02973/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 June 2016
On 26 August 2016

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

A--- I---
(ANONYMITY DIRECTION IN FORCE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss J Hassan, Counsel, instructed by Ahmad Law Associates
For the Respondent: Mr N Bramble, Home Office Presenting Officer

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 appellant. Breach of this order can be punished as a contempt of court. I make this order because it raises issues concerning the paternity of a private citizen. The public have no legitimate interest in his identity.
2. This is an appeal against the decision of the First-tier Tribunal dismissing the appellant's appeal against the decision of the Secretary of State to refuse him a Certificate of Entitlement to the Right to Abode in the United Kingdom.
3. Cases of this kind can often be extremely complex. The point that matters here is whether or not the appellant can show that his purported father, who is a British citizen, is in fact his father. If he wins on that point he is entitled to a certificate. If he cannot achieve that he cannot have a certificate.
4. The First-tier Tribunal dated its decision 30 January 2015 but it was not promulgated until 13 August 2015. That is a long gap. I do not know the reason for that. I do know that these delays do sometimes happen but they are undesirable.
5. Delay is relevant in this case. Upper Tribunal Judge Rintoul when he gave permission to appeal was concerned about the long delay and speculated, I think correctly, that one of the points taken in the grounds came about because of the delay. The fact is that the First-tier Tribunal did not consider either at all or certainly not with conspicuous care, letters and associated documents that would be capable of establishing paternity and I am satisfied that this error amounts to an error of law.
6. What the First-tier Tribunal Judge did do was seize upon a DNA report prepared by the appellant and expressed himself satisfied with the quality of that DNA evidence. If there was good clear scientific evidence that the purported father was not in fact the father then, as I understand it, the appellant's case would be quite hopeless. The First-tier Tribunal Judge describes the report as "strong and cogent evidence" establishing to "at least the above standard of proof that the appellant is not the sponsor's son".
7. With respect, it is not and it does not.
8. The only copy of the scientific evidence available is a very poor photocopy. I know that there are occasions when the Secretary of State is dismissive of photocopied evidence even though the photocopy comes from an impeccable source and is of very high quality. Here the source may well be respectable but the copy is deeply inadequate. There are large parts of it that simply cannot be read. There is an obvious mistake because in the printed, legible part of the report the appellant is named with a surname ending "ad". That is not the appellant's surname. His surname ends "al". On a simple reading the report relates to the wrong person. It may not be quite as straightforward as that because there is attached to the printed part of the report a form that has been completed in manuscript. The name on there might end "al", the writing is not entirely clear, but the first name appears to end with an "a" whereas on the printed version it ends with an "r". The dates of birth appear to coincide but the names do not.
9. There is a picture attached to the report. Presumably it is intended to be a picture of the person who provided the sample. In this case that is the purported father.
10. There is another picture of the father in a photocopy of his passport. There is not a lot to go on because of the poor quality of the photocopying but to the extent that the poor photocopy can be discerned it looks to me like that of a different person.
11. I do not know why the judge described the DNA report in such glowing terms. I regard it as completely unsatisfactory.
12. I note in parenthesis that the Secretary of State was directed to produce better DNA evidence and did not do it. The Presenting Officer's Unit in the formal reply showed that attempts had been made but the evidence is not available.
13. Although it does not disprove the alleged paternity I am quite satisfied that the appeal could not have been allowed on the basis of the scientific evidence.
14. Ms Hassan invited me to look carefully at all the other evidence that has been produced. Certainly it is capable of supporting the conclusion that the sponsor is the appellant's father but it is a matter of great concern to me that there is no DNA evidence provided from the appellant to fill the gap and to show that paternity indeed is established according to scientific testing. It is a remarkable omission and one that led me to the preliminary view that I should dismiss the appeal even though the First-tier Tribunal erred.
15. However, it is clear that there is a history here of the appellant's representatives being somewhat wrong footed because they did not know about the date of the hearing. They were disadvantaged by a direction requiring them to produce documents in accordance with a timetable that could not be achieved. The order expired on the same date as the document was dated.
16. Although I might be being generous to a fault, I think that it is possible that the Appellant's representative had been led into the error of trying to address the faults identify in his case rather than the larger task of proving that he satisfied the requirements of the rule.
17. I am therefore persuaded that I will give the appellant and his representatives another opportunity to serve further evidence. It will be for the First-tier Tribunal to evaluate that evidence if any comes, but I am happy to record here that if there is good scientific evidence establishing paternity then the appellant would appear to have a very strong case. Conversely, if there is no such evidence any explanation that would explain its absence satisfactorily would have to be very persuasive. Otherwise the Tribunal would be close to being obliged to reject the documentary evidence because of a failure to explain why better evidence was not produced.
18. In making this decision I am mindful of how long this has been going on. It does seem to me that if the appellant can address the gap no injustice will have been done and if he cannot, then all I will have done was added a little delay to an already protracted case. On balance I think I have made the best decision but I am quite satisfied that the decision of the First-tier Tribunal Judge should be set aside and, for the reasons given, I have persuaded myself to direct that it be decided again in the First-tier Tribunal and that is the decision I have made.
Notice of Decision
19. The appeal is allowed. The existing decision is set aside. The case must be decided again in the First-tier Tribunal.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 9 August 2016