Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/04018/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 8th September 2016
On 16th September 2016

Before

DEPUTY upper tribunal judge ROBERTS

Between

MASTER S A
(ANONYMITY DIRECTION made)
Appellant
and

ENTRY CLEARANCE OFFICER - Islamabad
Respondent

Representation:
For the Appellant: Mr Hussain, Counsel
For the Respondent: Mr Duffy, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity direction was made by the First-tier Tribunal. As this case involves a minor, it is appropriate to continue that direction.

DECISION AND REASONS
1. The Appellant, S A is a minor citizen of Pakistan whose date of birth is 7th May 2014. He appeals with permission to the Upper Tribunal against the First-tier Tribunal (Judge McKenzie) which in a decision promulgated on 8th February 2016 dismissed his appeal against the Respondent's refusal to grant him entry clearance as the child of a refugee, under paragraph 352D of the Immigration Rules. The date of the Respondent's decision is 14th January 2015.
2. Neither the Entry Clearance Officer, nor the First-tier Tribunal, were satisfied that the Appellant is related as claimed to his parents.
3. When the appeal came before the FtT, the judge took into account documentary evidence which included a family registration certificate naming the Appellant as his parents' child. A copy birth certificate was also produced although there is nothing to show that the judge took that into account. There was also produced (without objection) mobile phone evidence from the Appellant's father showing the Appellant's passport which also named him as the child of his parents. There was an understanding it would seem, that the Appellant could submit further evidence posthearing. The decision however is unclear as to what timescale was set out for that evidence to be submitted.
4. A great deal of the hearing before the FtT turned on the question of DNA evidence. It seems that this concept was introduced by the Presenting Officer in cross-examination. The Appellant's father intimated that he and his wife were more than willing to provide DNA sampling. They had not thought it was necessary in view of the other documentary evidence which was available.
5. The judge in her consideration gave adverse weight to the lack of DNA evidence but gave no consideration to adjourning the matter for that evidence to be obtained. She dismissed the appeal.
6. Permission to appeal was granted by UTJ Grubb on 19th August 2016. In the interim period between the FtT hearing and the grant of permission, DNA testing was carried out on the Appellant and his parents. The result of the DNA testing was forwarded to the Tribunal on 2nd September under cover of Thompson & Co Solicitors' letter of that date. It was accompanied by an application under Rule 15(2A) for that evidence to be admitted at the hearing before me.
Error of Law/UT Hearing
7. Mr Hussain appeared for the Appellant; Mr Duffy for the Respondent. Unfortunately, Mr Duffy had not been served with a copy of the DNA testing. Arrangements were made for him to be shown the results of the DNA testing and very sensibly he accepted that there was no objection to this evidence being admitted. He also accepted that this evidence changed the complexion of the appeal. In the circumstances I did not need to hear from Mr Hussain.
8. The DNA evidence shows that the probability of Master SA being the biological child of his claimed parents is 99.9% more likely than not.
9. I find therefore that the decision of the First-tier Tribunal is set aside for error. The Appellant should have been afforded the opportunity to provide DNA sampling in view of his parents indication at the hearing that they were willing to provide the same. Whilst it is correct that there is no way that the ECO could have foreseen the result of that testing, it would have provided persuasive evidence to back the assertion that the documentary evidence relied upon was credible. I hereby remake the decision remake the decision, allowing the Appellant's appeal.
Notice of Decision
The decision of the First-tier Tribunal dated 8th February 2016 is set aside. I remake the decision allowing the appeal of Master S A against the Entry Clearance Officer's decision of 14th January 2015 refusing him entry clearance for family reunion purposes.
There was no fee award as the Appellant was fee exempt.
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 this 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 C E Roberts Date 15 September 2016

Deputy Upper Tribunal Judge Roberts