Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/05182/2015
OA/05180/2015, OA/05184/2015
OA/05187/2015, OA/05176/2015

THE IMMIGRATION ACTS

Heard at : UT(IAC) Birmingham
Decision & Reasons Promulgated
On : 28 February 2017
On: 2 March 2017

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

ngenzeni mbayiwa
tebugo luckyboy mbayiwa
thamsanqa lucky mbayiwa
sizalobuhle thabo mbayiwa
candice ntombikayise mbayiwa
Appellants
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellants: Mr T Muman, instructed through Direct Access
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellants, citizens of Zimbabwe, applied for entry clearance to the United Kingdom as the spouse and children (and, with respect to the second appellant, the step-child) of the sponsor, Mbano Mzingelwa Tholakele, who had leave to remain as a refugee. They have been given permission to appeal against the determination of First-tier Tribunal Judge Graham dismissing their appeals against the respondent’s decision to refuse their applications.
2. The first appellant’s application was refused on 10 February 2015 on the basis that the respondent did not accept that he was married to the sponsor as claimed and did not accept that the sponsor, although related to the children, was their mother. The respondent noted that there was no evidence to support the appellant’s claim to have married the sponsor in 1999 and no evidence of the three children (Thamsanqa Lucky DOB 13.01.2001, Sizalobuhle Tahbo DOB 11.03.2206 and Candice Ntombikayise DOB 26.03.2010) having lived together as a family unit with the sponsor proper to her departure from Zimbabwe in 2002. The respondent noted that the sponsor, when interviewed about her asylum claim in November 2002, had stated that she was single and had listed only one child, Thamsanq Mbano Mzingelwa, DOB 28.02.1994. Birth certificates and DNA reports had been provided but that did not rule out the fact that the sponsor could be an aunt or other relation.
3. With regard to the children, the respondent, in her decisions of 10, 11 and 12 February 2015, noted that the two younger children were born after the sponsor’s flight from Zimbabwe and therefore did not qualify under the family reunion provisions. The respondent was not, in any event, satisfied that the sponsor was the mother and step-mother of the children.
4. The appellants’ appeals were heard before First-tier Tribunal Judge Graham on 13 July 2016. The judge made an adverse credibility finding against the sponsor in regard to her relationship to the appellants, owing to a lack of evidence of her marriage, traditional or otherwise, and the absence of any mention of her partner or children in her own asylum claim, in her screening interview, her interview and her statements. The judge considered that the sponsor’s evidence in her statements in fact suggested that she did not have such a family. The judge considered the DNA evidence but found that the conclusion arising from that evidence was that the sponsor could be a relative of the children and she did not accept that she was their biological mother. The judge dismissed the appeals under the immigration rules and on Article 8 grounds.
5. Permission to appeal to the Upper Tribunal was sought on grounds which included an assertion that the sponsor had mentioned her partner and her child Thamsanqa in her SEF document. Reliance was placed on the DNA evidence in asserting that the judge had erred by rejecting the claim that the sponsor was the biological mother of the children.
6. Permission to appeal was granted 18 November 2016, in regard to an arguable failure by the judge to give proper consideration to the DNA evidence and to her arguable failure to consider the sponsor’s relationship with the first appellant as unmarried partners.
7. At the hearing I heard submissions from both parties on the error of law and have concluded that the judge’s decision has to be set aside.
8. Mr Muman’s submissions were, for the most part, reliant upon evidence which was not before the First-tier Tribunal and which post-dated the hearing, in particular in relation to the appellant’s marriage to the sponsor. He was quite candid in accepting that he was uncertain which documents had been before the First-tier Tribunal. In so far as the documents had been produced after the judge’s decision, they cannot be taken into account in considering whether there was any legal error on the part of the judge.
9. However there is one document that has now been produced which was not before the First-tier Tribunal, but which I consider is material to the outcome of the appeals and which suggests that the judge was acting upon a misunderstanding of the facts, albeit through no fault of her own. Whilst this was not a matter upon which permission had specifically been granted, it was relevant to an overall assessment of the evidence including the conclusions in the DNA reports.
10. The judge, at various points in her decision, referred to the absence of any mention by the sponsor in her asylum claim of her partner or her child Thamsanqa. At [22] she addressed a single sheet produced by the appellants in their appeal bundle headed “Part B – Family Details” which detailed the first appellant as partner and the third appellant, Thamsanqa, as a child. The judge considered that there was nothing in the sheet to identify it as an extract from the sponsor’s papers submitted with her claim and therefore did not attach any evidential weight to it. The only evidence before her of the SEF appeared at F49 and F50 of the respondent’s bundle and included only Part A of the form. The appellants have now produced what appears to be the full SEF at pages 73 to 80, and page 75 appears to correspond to the single sheet referred to by the judge. Whilst the judge was perfectly entitled to attach the weight that she did to the single sheet, for the reasons cogently given, and in the light of the other adverse factors arising in the sponsor’s evidence, and whilst she made no error of law in so doing, it seems to me that it cannot be ruled out that she may have come to a different conclusion overall had she had sight of the full SEF. It is indeed the case that the burden of proof lay upon the appellants to produce all relevant evidence and that, as the judge rightly pointed out at [22], there was no reason for the sponsor not to have provided the complete SEF form, the fact remains that the judge was proceeding on the basis of a decision made by the ECO which it seems was, in turn, based upon incomplete information provided by the Home Office.
11. There is absolutely no criticism to be made of the judge in this, or any other regard, and her decision was a careful and detailed one based upon the evidence before her. However, for the above reasons, it seems to me that there has been an error of fact which has given rise to an error of law in the decision of the First-tier Tribunal, such that the decision has to be set aside and re-made on the correct factual basis. It may well be that another judge, having considered all the evidence together, will reach the same conclusion as Judge Graham. However that is not necessarily the case. In the circumstances, it is appropriate for the appeals to be remitted to the First-tier Tribunal for all matters to be determined.

DECISION
12. The decision of the First-tier Tribunal is set aside. The case is remitted to the First-tier Tribunal pursuant to section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Statement 7.2(b), before any judge aside from Judge Graham.

Signed Date

Upper Tribunal Judge Kebede