Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/06838/2015
OA/06839/2015
OA/06843/2015
OA/06846/2015
OA/06847/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 7 November 2016
On 8 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

ENTRY CLARANCE OFFICER - ADDIS ABABA
Appellant
And

[Z T]
[A T]
[D F]
[A Y]
[R T]
(NO ANONYMITY ORDER MADE)
Respondents

Representation:
For the Appellant: Mrs Peterson a Home Office Presenting Officer
For the Respondent: Mr Hans a Solicitor

DECISION AND REASONS
Background
1. For the sake of consistency with the decision in the First-tier Tribunal I will hereafter refer to the family as the Appellants and to the Entry Clearance Officer as the Respondent.
2. The Respondent refused the Appellants' applications for leave to enter as the family members of a refugee on 2 March 2015. Their appeal against this was allowed by First-tier Tribunal Judge Bradshaw ("the Judge") following a hearing on 1 September 2016.
The grant of permission
3. First-tier Tribunal Judge Robertson granted permission to appeal (11 October 2016). He said it is arguable that the Judge failed to make adequate findings on pre-flight family life, give inadequate consideration to s117 of the Nationality, Immigration, and Asylum Act 2002, and does not consider why fresh applications could not be made.
Respondent's position
4. Mrs Peterson accepted that in relation to the 2nd and 3rd Appellants who were the children of the Sponsor, given the findings that maternity had been established [16], they did in fact meet the requirements of the immigration rules (352D). She did not accept that the appeal should have been allowed under the rules as the relevant evidence of maternity had not been submitted with the application, but that it should be allowed on human rights grounds. That is because one must look at article 8 through the prism of the rules at the date of hearing. Those rules were then met even though they were not when the application was submitted. In those circumstances she accepted that there was no material error of law in relation to those Appellants as the appeal had only been allowed on human rights grounds. There was of course no cross appeal in relation to whether the immigration rules in relation to them had been met. I therefore need not consider this matter further in relation to those 2 Appellants.
5. In relation to the other Appellants, the 1st and 5th Appellants were the Sponsor's twin sisters and the 4th Appellant was her niece. They are all minors. Her submission was that they did not meet the requirements of the rules (319(X)) as it had not been established that there were serious and compelling family or other considerations that made their exclusion undesirable and suitable arrangements had been made for their care, or that they could be accommodated adequately without recourse to public funds in accommodation the Sponsor owned or occupied exclusively, or that they could be maintained adequately without recourse to public funds.
Appellants' position
6. It is accepted that the 1st, 4th and 5th Appellants did not meet the maintenance and accommodation requirements of the immigration rules (319X). Finances can be assessed as she is a refugee entitled to public funds. As she did not meet the requirements of the rules, the Judge could only base a decision on article 8. It was submitted that there had been sufficient findings regarding pre flight family life given the findings [11/25] that she became their carers in 2010 when her parents died - they having been the carers of her niece from 2007.
Discussion
7. In relation to the 1st, 4th, and 5th Appellants, I am not satisfied that the Judge made a material error of law in relation to whether they were members of the family of the Sponsor before she fled Eritrea. The findings were adequate.
8. The Judge did make reference to s117 at [9]. She does not however indicate whether they would be a burden on the taxpayer, or spoke English. Those factors are matters that are required to be taken into account in the proportionality balancing exercise and the absence of any consideration of any of those factors is a material error of law.
9. I not accept that there was a material error of law regarding whether they can make fresh applications as it appears the applications they have made have not been fully considered.
Conclusion on error of law
10. I am not satisfied that the Judge made a material error of law in relation to the 2nd and 3rd Appellants. As they are children living in a refugee camp in Ethiopia and are now aged 11 and 9, I trust that the Respondent will urgently issue appropriate family reunion visas for them to be reunited here with their mother. I bear in mind in this regard the delay in this matter coming before me as the applications were made over 2 years ago.
11. I am satisfied that the Judge made a material error of law in relation to the 1st, 4th, and 5th Appellants regarding whether they met the requirements of [319(x)] of the immigration rules as article 8 must be looked at through their prism. There will therefore need to be an assessment of whether there were serious and compelling family or other considerations that made their exclusion undesirable and suitable arrangements had been made for their care, whether they could be accommodated adequately without recourse to public funds in accommodation the Sponsor owned or occupied exclusively, and whether they could be maintained adequately without recourse to public funds.
12. Having heard submissions, I was satisfied that it was appropriate for me to remit the matter to Judge Bradshaw. That was because the error of law related to matters where discreet findings had not been made that were not infected by other findings.

Decision:
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law in relation to the 2nd and 3rd Appellants.
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law in relation to the 1st, 4th, and 5th Appellants.
I set aside the decision in relation to the 1st, 4th, and 5th Appellants only.
The matter shall be remitted to First-tier Tribunal Judge Bradshaw on the 1st available date on or after 28 November 2016, with a time estimate of 3 hours, a Tigrinyan interpreter being provided, and the Appellants being able to file such evidence as they intend to rely regarding the outstanding issues by 21 November 2016.

Signed:

Deputy Upper Tribunal Judge Saffer
7 November 2016