Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: oa/06588/2014
OA/06592/2014
OA/06594/2014
OA/04269/2015

THE IMMIGRATION ACTS

Heard At City Centre Tower, Birmingham
Decision & Reasons Promulgated
On 6th December 2016
On 6th January 2017

Before

DEPUTY upper tribunal JUDGE RENTON

Between

PATRICIA [M] (first appellant)
JOEL [M] (second appellant)
PATRICK [M] (third appellant)
RICHMOND [M] (fourth appellant)
(ANONYMITY DIRECTIONs not made)
Appellants

and

Entry Clearance Officer - ACCRA
Respondent

Representation:

For the Appellants: Ms H Gore, Counsel instructed by R Spio & Co Solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The Appellants are all citizens of Ghana. They are siblings of one sort or another. The first two Appellants are twins, both born on 24th September 1997. The remaining Appellants were born on 27th March 2002 and 5th September 2005 respectively. The Sponsor, Abdulai Musah is the father of the first three Appellants, but not of the fourth Appellant. His wife, Joyce Amoako, is the mother of the first, second and fourth Appellants, but not the third Appellant. They applied for entry clearance to the United Kingdom as the dependent children of the Sponsor, an EU citizen residing in the UK and exercising treaty rights there. The Sponsor had first come to the UK sometime in 2003 and his wife had joined him in 2006. The applications were refused for the reasons given in letters of the Respondent dated 24th March 2014. Following an unsuccessful review by an Entry Clearance Manager, the Appellants appealed. Their appeals were heard by Judge of the First-tier Tribunal Butler (the Judge) sitting at Birmingham on 29th March 2016. He decided to dismiss the appeals under the Immigration Rules and on human rights grounds for the reasons given in his Decision dated 12th May 2016. The Appellants sought leave to appeal that decision, and such permission was granted on 23rd September 2016.
Error of Law
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
3. As regards the first two Appellants, the Judge considered their appeals under paragraph 297 of HC 395 as they had both parents present and settled in the United Kingdom. The Judge found that these Appellants did not satisfy the requirements of paragraph 297(v) in that they would not be adequately maintained by the parents they were seeking to join without recourse to public funds.
4. As regards the remaining Appellants, the Judge considered paragraph 297(f) of HC 395 as only one of their parents was present and settled in the UK. He found that the Sponsor and his wife were not solely responsible for them and that there were no serious and compelling family or other considerations which made their exclusion undesirable.
5. In respect of all Appellants, the Judge found that the Respondent's decision did not amount to a disproportionate breach of their Article 8 ECHR rights as there was no family life between the various Appellants and the Sponsor and his wife and further that there were no compelling circumstances allowing the Judge to consider family life rights outside the Immigration Rules.
6. At the hearing, Ms Gore argued that the Judge had erred in law in coming to these decisions. As regards the first two Appellants, the Judge had decided the issue of adequate maintenance according to the financial circumstances of the Sponsor and his wife as at the date of the application as if it was a Points Based System (PBS) case. As the Judge stated at paragraph 37 of the Decision, he attached little weight to the subsequent evidence of financial circumstances before him. If he had fully taken into account that evidence, he would have allowed the appeals as it clearly showed the capability of the Sponsor and his wife to maintain all of the Appellants without recourse to public funds. As regards the remaining Appellants, the Judge should have treated them as de facto members of the family. Finally, Ms Gore submitted that the Judge had given insufficient reasons for his finding of no family life between the various parties. There was evidence before him of regular contact between the Appellant and the Sponsor and the Appellants.
7. In response, Mr Mills acknowledged that this was not a PBS case and that the test of adequacy of maintenance applied. Any error of law made by the Judge in this respect was not material because even taking account of the evidence to which the Judge attached little weight, the first two Appellants had not discharged the burden of showing an adequacy of maintenance without recourse to public funds. That the Sponsor and his wife had a joint income in excess of benefit levels was only a yardstick. These Appellants had failed to provide a schedule of the income and outgoings of the Appellant and his wife. As regards the remaining Appellants, the Judge was correct to consider their appeals under paragraph 297(f). It was clear from paragraph 6 of HC 395 that there was no such thing as a de facto parent. These Appellants had to show that their biological parents were dead. The Judge had come to a conclusion in respect of the third and fourth Appellants open to him on the evidence before him and which he fully explained.
8. Finally, Mr Mills argued that in respect of the Appellants' Article 8 ECHR rights, the Judge had correctly concluded on the evidence before him that there was no family life in the United Kingdom as opposed to Ghana, and that there were no compelling circumstances relating to all the Appellants. The Judge had given adequate reasons for this decision.
9. I find an error of law in the decision of the Judge relating to the first two Appellants. The Judge had erred in law in wrongly excluding relevant evidence relating to a period after the date of application. This was not a PBS case and therefore the Judge should have considered all relevant evidence up to the date of decision. If he had done so, he may well have concluded that there was adequate maintenance available for these two Appellants without recourse to public funds, and therefore the error is material.
10. Otherwise I find no error of law in the decision of the Judge. The Judge was correct to apply the provisions of paragraph 297(f) of HC 395 to the appeals of the third and fourth Appellants. It is clear that they both had surviving parents in Ghana. Further, the Judge's decision that there were no serious and compelling family or other considerations making the exclusion of the third and fourth Appellants undesirable was one open to him on the evidence before him and which he fully explained. Suffice it to say that the third Appellant lived with his mother, and that the fourth Appellant lived with his aunt and the first and second Appellants in Ghana.
11. Finally, I find no error of law in the Judge's Article 8 ECHR decision. The Judge explained why he found no family life in the United Kingdom between the Sponsor, his wife, and the Appellants. This could not be considered a perverse decision. In any event, the Judge had decided that the decision in SS (Congo) [2015] EWCA Civ 387 precluded him from considering the Appellants' Article 8 rights, and bearing in mind the living circumstances of the Appellant in Ghana as mentioned by me above, this decision cannot be faulted.

Notice of Decision

The making of the decision of the First-tier Tribunal in respect of the first and second Appellants did involve the making of an error on a point of law. I set aside that decision and re-make it below.

The making of the decision of the First-tier Tribunal in respect of the third and fourth Appellants did not involve the making of an error on a point of law, and that decision is not set aside. The appeals to the Upper Tribunal of the third and fourth Appellants are dismissed.

Re-made Decision

At the hearing I decided to re-make the decision of the First-tier Tribunal in respect of the first and second Appellants. I have re-made that decision on the basis of the evidence which was before the Judge. There were no further submissions from the representatives.

Without going into the detail, I find the documentary evidence of the financial circumstances of the Sponsor and his wife appearing at pages 10 to 23 inclusive and 54 to 71 inclusive of the Appellants' Bundle of Documents satisfies me that there will be adequate maintenance for the first and second Appellants following their arrival in the UK without recourse to public funds. I re-make the decision of the First-tier Tribunal by allowing the appeals of the first and second Appellants.
Anonymity

The First-tier Tribunal did not make an order for anonymity. I was not asked to do so, and indeed find no reason to do so.

Signed Date

Deputy Upper Tribunal Judge Renton

TO THE RESPONDENT
FEE AWARD

In the light of my decision to re-make the decision in the appeal in part by allowing it, I have considered whether to make a fee award in respect of the first and second Appellants. I have had regard to the Joint Presidential Guidance Note in such matters, and as I have allowed the appeals largely upon evidence before the Entry Clearance Officer, I make a whole fee award in respect of those two Appellants.

Signed Date

Deputy Upper Tribunal Judge Renton