Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/06201/2015,
OA/06208/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 27th February 2017
On 26th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MAHMOOD

Between

ATIF KHAN
ZAHEER KHAN
Appellants
(ANONYMITY DIRECTION NOT MADE)

and

ENTRY CLEARANCE OFFICER-ISLAMABAD

Respondent

Representation:

For the Respondent: Mr Sarwar, Counsel instructed by Ash Immigration Services
For the Appellant: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellants appeal with permission against the decision of First-tier Tribunal Judge Row. The Appellants had appealed against the decision of the Entry Clearance Officer to refuse their applications for entry clearance as the children of their British father.

2. The Judge of the First-tier Tribunal had refused the appeal based on both Paragraph 297 of the Immigration Rules and Article 8 of the European Convention on Human Rights.

3. In a detailed and all encapsulating grant of permission, First-tier Tribunal Judge Keane considered the grounds of appeal. The focus was on a DNA report dealing with the parentage of the Appellants. The Judge had concluded that the “chain of custody” in respect of the blood samples taken for the purposes of the DNA report. In other words, the Judge asked himself whether there was sufficient evidence that the samples tested really were those of the Appellants and their claimed father. Ultimately the Judge had concluded that because of this missing link in respect of the “chain of custody” that the DNA report was “worthless as evidence”.

4. At the hearing before me Mr Sarwar amplified the grounds of appeal to say that the appeal before me was based on the failure by the Judge to take into account the DNA report. He said that the DNA test was not completed by a “fly-by- night” or “backstreet” organisation but by a reputable company registered by the Ministry of Justice. Mr Sarwar produced a printout of the company. Mr Mills intervened to say that he had no issue about the worthiness of the DNA company. Mr Sarwar’s submission was the Judge had made an error in respect of the chain of custody in respect of the blood tests, despite having been given the documents. The appropriate standard of proof was the balance of probabilities and not beyond reasonable doubt. He said I should substitute a decision and allow the Appellants’ appeals.

5. Mr Mills said that the issues raised about the DNA report were rational concerns if this was a case that needed to be proved to the criminal standard. The real question was whether the same expectations apply when it is the civil standard. Perhaps there was some merit in the argument that the Judge expected more than was required. Mr Mills said he would leave it to me to come to my decision.

6. Having considered the Judge’s decision and the rival submissions, it is quite clear to me that the Judge did materially err in law. The Judge appears to have made a mistake in respect of the samples of blood which were taken for the purposes of the DNA testing. As Mr Mills rightly accepted, the DNA company which undertook the testing was one registered with the Ministry of Justice.

7. In the circumstances, the Judge’s conclusion when he said that the DNA evidence was “worthless” fundamentally undermines his decision.

8. As was noted in the decision granting permission to appeal by Judge Keane, the DNA evidence was crucial. The incorrect assessment of it means that the decision as a whole is unsafe.

9. I therefore conclude that the Judge’s decision has to be set aside. The issues in respect of the DNA evidence are important issues which should be the subject of a re-hearing, along with all other issues.

10. Applying section 12(2) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal Judge. I remit the matter to the First-tier Tribunal for re-hearing. The whole of the decision is set aside as it is fundamentally flawed. For the avoidance of doubt this means that no part of the decision stands. There will be a complete re-hearing. The matter will not be re-heard by Judge Row.

Notice of Decision

There was a material error of law in the decision of the First-tier Tribunal.
The decision of the First-tier Tribunal is set aside.
I remit the matter to the First-tier Tribunal for re-hearing.

No anonymity direction is made.

Signed Date: 27 February 2017

Deputy Upper Tribunal Judge Mahmood