Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/04391/2015
OA/04390/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25 July 2016
On 4 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

MISS k G (FIRST appellant)
MISS i G (SECOND appellant)
(ANONYMITY DIRECTION made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mr A Moran, Legal Representative
For the Respondent: Ms Z Ahmed, Senior Home Office Presenting Officer

DECISION AND REASONS
1. These are appeals by the Appellants against the separate decisions of First-tier Tribunal Judge Lucas, both promulgated on 17 June 2015, in which he dismissed their appeals against the Respondent's refusals of entry clearance made on 2 and 1 February 2015. The first Appellant is the aunt of the second. The United Kingdom-based sponsor is the uncle of the first Appellant and the grandfather of the second. All are Syrian nationals. The sponsor is a recognised refugee in this country.
2. The Appellants have at all material times been living in Egypt. It was the Appellants' case that a large number of their family members had had to flee Syria due to the horrendous ongoing civil war in that country. Members of the family were dispersed to different countries, some coming to the United Kingdom, some residing in Lebanon and others finding themselves in Egypt.

The judge's decisions
3. The hearing of the appeals occurred on 29 May 2015. The Respondent was not represented before the First-tier Tribunal. The judge's decisions are brief.
4. It is noted that Mr Moran conceded that neither of the Appellants could satisfy the Immigration Rules and that the cases were founded upon Article 8 outside of the Rules. To a large extent the two separate decisions are identical in their wording. I shall begin with the decision relating to the first Appellant.
5. It is said in paragraph 29 that there was "no evidence" that the first Appellant was living in the same household as the sponsor prior to the family leaving Syria and moving to Egypt. The judge went on to find that there was again "no evidence" of dependence. At paragraph 30 the judge states that the first Appellant is now an adult in her mid 30s and that she has other siblings who live in Syria and Lebanon. At paragraph 31 the judge states that, "it is not explained - other than simple choice - why this state has or should have responsibility for granting entry clearance for settlement to this Appellant". At paragraph 32 the judge says:
"It is accepted that conditions for this Appellant or indeed other Syrian refugees in Egypt may not be perfect or indeed may be far from ideal. However, there is no principle or legal basis for the assertion that adult Syrian refugees should be granted entry clearance to the United Kingdom on the basis that they have relatives in this country. This is not after all an asylum claim and the Appellant is an adult".
6. Finally in paragraph 33 the judge states that, "... the purpose of Article 8 is not to facilitate a right of choice of national residence nor to sidestep the requirements of the Immigration Rules".
7. Turning to the second Appellant's appeal, at paragraph 29 the judge asserts that, "no evidence has been submitted in this appeal to show that the parents of this Appellant are indeed missing". At paragraph 30 the judge states that, "there is no evidence to show either that no-one else is responsible for the Appellant or that indeed the sponsor or his family are responsible for her". At paragraph 31 there is a reference again to the issue of choice of residence. In paragraph 32 the judge notes that the only evidence that the second Appellant is or was reliant or dependent upon the sponsor emanates from the sponsor himself and his own son. It is said that this evidence was insufficient to lay "any foundation for the assertion that Article 8 of ECHR is activated by this claim". At paragraph 33 the judge states that, "it is for the Appellant or those on her behalf to show that there is - in effect - no other option available to her than to join her grandparents in the United Kingdom". Finally in paragraph 34 the judge states that, "aside from the wishes of the Sponsor there is no evidence at all submitted in this appeal to show that Article 8 is or can be engaged by this claim".

The grounds of appeal and grant of permission
8. Grounds for appeal were lodged first to the First-tier Tribunal. Permission was refused. The grounds were renewed to the Upper Tribunal. These grounds consisted of challenges to the failure of the judge to have regard to evidence contained in witness statements particularly of the sponsor, a lack of findings made by the judge, and an assertion that the judge was in effect requiring corroboration. Permission to appeal was initially refused by the Upper Tribunal in a rather lengthy decision dated 7 January 2016. Following this a judicial review claim was lodged by those representing the Appellants. By a decision dated 14 March 2016 Mr Justice Males granted permission in respect of both Appellants. It is noted by the judge that contrary to the First-tier Judge's view, there was in fact evidence in support of the various assertions made in the Appellants' claims. Following the decision of Mr Justice Males, permission to appeal to the Upper Tribunal was granted by Vice President Ockelton on 22 June 2016 and thus the two appeals came before me.

The hearing
9. Mr Moran relied on his grounds of appeal. Ms Ahmed submitted that there were no material errors of law but in fairness to her, she did acknowledge that there were problems with the judge's decisions.

Decision on error of law
10. Having carefully considered the judge's decisions, the grounds of appeal, the decisions of Mr Justice Males, and the position of the two representatives before me, I find that there are numerous material errors of law in the judge's decisions.
11. In respect of the first Appellant's decision, contrary to what the judge has said there was in fact evidence before him in respect of the make up of the household prior to her arriving in Egypt. This evidence was that of the sponsor, evidence contained within witness statements is evidence and has to be treated as such. It does not of course follow that such evidence has to be accepted, but it must be dealt with and, if it is to be rejected, reasons for this must be given. It appears to me as though the judge in this case has either overlooked this evidence or disregarded it entirely. Either way he has materially erred.
12. In addition, in my view the judge has simply failed to carry out a careful consideration of this case. There are very few findings of fact as to the movements of the family and the first Appellant's own particular circumstances in Egypt as at the date of decision including her position as an unmarried woman living in a country of which she was not a national. There is no methodical consideration of the Razgar questions and it is entirely unclear to me, having regard to paragraphs 33 and 34, as to whether he was accepting that there was family life as between the first Appellant and the sponsor, or whether if there was, there was no interference caused by the Respondent's decisions, or if there was, whether ultimately the decisions were proportionate. On this basis the decision of the judge in respect of the first Appellant cannot stand and I set it aside.
13. In respect of the second Appellant, who was at the date of the Respondent's decisions a baby, there are numerous material errors of law. The judge was wrong in paragraphs 29 and 30 to have said that there was no evidence in respect of relevant matters. Again, there was evidence, as contained in the witness statement of the sponsor. Once again the judge appears to have overlooked this or ignored it. Alternatively, and having regard to paragraph 32, the judge appears to have been requiring corroborative evidence: such a requirement is wrong in law.
14. The judge has made very few, if any, findings of fact on material issues. There is nothing whatsoever as to the best interests of the second Appellant and, as with the first Appellant's decision, it is unclear to me as to how the judge has in fact approached the Article 8 assessment: again, I am unclear as to whether the judge was accepting family life and/or interference, and/or whether the refusal was proportionate. The judge's references to the issue of choice in respect of both Appellants is correct in one sense: prospective immigrants do not have a choice as to where they reside as such. However in Article 8 cases the issue is whether there is a protected right, and if there is, whether that right has been justifiably interfered with or not as the case may be.
15. Having regard to the above I set aside the judge's decision in respect of the second Appellant as well.

Disposal
16. Both appeals must in my view be remitted to the First-tier Tribunal for a complete rehearing. Neither representative sought to argue to the contrary. There is a distinct lack of findings in both appeals and it is not appropriate in my view for these cases to be retained within the Upper Tribunal. I will issue directions to the parties and for the Tribunal's administration below.

Anonymity
17. I make a direction in these appeals. The second appeal is a minor, and both are in vulnerable positions.

Notice of Decisions
The Appellants' appeals to the Upper Tribunal are allowed.
The decisions of the First-tier Tribunal contain materials errors of law and they are set aside.
I remit both appeals to the First-tier Tribunal

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 Appellants and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Directions to the First-tier Tribunal and the parties:
1. These appeals shall be reheard afresh. There are no preserved findings;
2. It is conceded by the Appellants that they cannot meet the Immigration Rules as these relate to Article 8 ECHR. Therefore, consideration shall be given to Article 8 outside of the Rules;
3. The parties shall comply with any further directions issued by the First-tier Tribunal.

Directions to listings:
1. Both appeals are to remain linked;
2. These appeals are to be listed at the Taylor House or Hatton Cross hearing centres, whichever can accommodate an earlier hearing date;
3. These appeals shall not be reheard by First-tier Tribunal Judge Lucas;
4. There is a 2 hour time-estimate for the remitted hearing;
5. An Arabic (middle Eastern) interpreter is required.

Signed Date: 2 August 2016
Deputy Upper Tribunal Judge Norton-Taylor