Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/06954/2014

THE IMMIGRATION ACTS

Heard at FIELD HOUSE
Decision & Reasons Promulgated
On 26th October 2016
On 1st November 2016

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL
Ms G A BLACK

Between

k m
ANONYMITY ORDER MADE
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms L Appiah (Counsel instructed by Duncan Lewis & Co, Solicitors)
For the Respondent: Mr S Staunton (Home Office Presenting Officer)

DECISION AND REASONS
1. This is an error of law hearing. It comes before me for consideration as to whether or not there is a material error of law in the decision the First -tier Tribunal ( Judge Callow)("FtT") promulgated by on 2nd July 2015 in which the appellant's appeal was dismissed under the Immigration Rules paragraph 352 and under Article 8 outside of the Rules. The FtT found no evidence of any deception under paragraph 320(7A), which was relied on by the respondent.
Background
2. The appellant is a minor whose date of birth is 1st March 2005, and a citizen of Eritrea, living in Khartoum, Sudan. She is the child of refugees from Eritrea. The sponsor's wife is not her biological mother. In the course of proceedings it was discovered that the sponsor was not her biological father as was believed to be the case by the parties. The appeal was determined on the basis that the appellant was the de facto child of the sponsor and his wife and family life was established.
First -tier Tribunal decision
3. The FtT found that there was no deception [17] and this issue is not challenged. The FtT thereafter found that the appellant was not the (biological) child of a refugee under paragraph 352D(i) of the Rules [19]. The FtT considered Article 8 following Razgar and Huang [20-25] and concluded that family life was established and Article 8 engaged. In assessing proportionality the FtT made reference to the need to consider where the best interests of the child lay [24] and then concluded that the public interest in economic factors and factors under section 117B(1)(2) & (3) outweighed the family life of the appellant [26].
Grounds of appeal
4. Grounds of appeal argued that the FtT should have treated the appellant as a de facto adopted child and considered Paragraph 309(A) of the Rules given that the sponsor had cared for the appellant since 2005. Reliance was placed on AA (Somalia) v SSHD [2013] UKSC 81 and Mohamoud (paras 352D & 309A- de facto adoption) Ethiopia [2011] UKUT 00378 (IAC).
5. The FtT failed to place weight on material matters (age, living conditions, family relationship) and placed weight on immaterial matters (inability to speak English & public funds) in considering proportionality.
Grant of permission
6. Permission to appeal was refused by the First-tier Tribunal (FTJ Garratt) and on renewal by the Upper Tribunal (UJT Grubb). It was granted by the Vice President of the Upper Tribunal following a successful application for judicial review on 12th February 2016 in which the High Court referred to the failure to consider paragraph 309 together with Home Office guidance and the impact of that failure on the Article 8 claim.
Rule 24 response
7. The respondent opposed the appeal as it was difficult to see how the circumstances of the case could be anticipated under paragraph 309A together with relevant guidance. The Article 8 findings were open to the FtT to make on the evidence before it.
Submisssions
8. Ms Appiah expanded on the grounds for judicial relief. The sponsor was acting in person at the FtT. A strict interpretation of the requirements under 309A(b)(i) of living together was not necessary having regard to the guidelines which would allow for a more flexible approach and were consistent with AA (Somalia). In terms of Article 8 the FtT failed to consider the impact of not meeting the rules and had attached weight to immaterial matters in relation to a child. Section 117 was not exhaustive.
9. Mr Staunton relied on the Rules 24 response. The requirements of paragraph 309 were not met by a long period of time and as such it was right that the respondent did not exercise discretion in favour of the appellant.
Discussion and conclusion
10. I allowed the appeal on both grounds and then went onto hear submissions and oral evidence in remaking the decision. My error of law reasons are as follows. The FtT acknowledged that the appellant had not been formally adopted but that the sensitive facts of the case established "the very existence of family life" [23]. There was no application made under paragraph 309A, however, I am mindful of the fact that the appellant was not legally represented at the hearing where the sponsor attended in person. I am satisfied that the FtT ought to have considered more fully the facts of the case in terms of whether the appellant should have been treated as a de facto adopted child, notwithstanding that it may well have found that those requirements were not met. The significance is how those facts and any decision under the rules would have impacted on the assessment of proportionality [24]. Therein lies the material error of law. There is a material error of law in the decision which shall be set aside save that the findings of fact are preserved.
11. I heard submissions from both representatives and oral evidence from the sponsor as to the period of time since the appellant had lived with the sponsor and his wife prior to the application. The facts as found by the FtT were preserved. Ms Appiah sought to introduce new evidence of the fact that the sponsor and his wife were now working. The relevant date for entry clearance cases is the date of decision.
12. I find that the appellant is the child of the sponsor and his wife, and her application fell to be considered under paragraph 309A once it was established that the father/sponsor was not her biological father. On the facts as found by the FtT and the evidence from the sponsor in terms of the time of living together, I am satisfied that the requirements of the Rules are not met. The appellant would have met the rules but for the fact that she was not living with her parents immediately before the application. The correct approach for a case of this kind is outlined by the Supreme Court in AA (Somalia). Accepting that this is an entry clearance case the FtT nevertheless did not fully consider all the relevant factors in the Article 8 assessment; that she was a child of a refugee who could not meet the Rules, and only made limited findings in terms of the nature of family life and the engagement of Article 8. The FtT did not in fact reach any finding as to where the best interests of the child lay, the starting point for an in country Article 8 proportionality assessment. I am satisfied that the only conclusion that could have been reached was that the best interests lie in joining her parents in the UK (Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 88 (IAC)). She is a child of 11 years of age living in Sudan with different people unrelated to her. She has been separated from her parents since a very young age and maintains contact with her parents regularly by phone and other social media. The FtT found that the decision amounted to an interference with her family life in terms that she would not be able to join/ settle with her family in the UK [24].
13. In considering proportionality the FtT must have regard to public interest factors in section 117B, however, those factors are not exhaustive and were treated as such by the FtT. The FtT ought to have considered if the public interest was capable of outweighing the interests of the appellant and the interest of her parents in terms of their family life. The FtT approach to public interests factors under section 117B was flawed as it failed to consider those factors from the perspective of a child which would have impacted on the question of weight. Undoubtedly there would be additional recourse of public funds in terms of education and health. The FtT failed to place sufficient weight on material factors in the balancing exercise such as the appellant's age, vulnerability, living conditions, separation from her parents, impact on the parents of the continued separation, the parents status as refugees and the degree to which the Immigration rules were not met. All of which lead to me to conclude that the decision is a disproportionate interference with the family life of the appellant.

Decision
There is a material error of law in the decision which shall be set aside.
I remake the decision under Article 8 and I allow the appeal.

Signed Date 31.10.2016

GA Black
Deputy Judge of the Upper Tribunal

ANONYMITY ORDER MADE
Direction Regarding Anonymity - rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014
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 Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

NO FEE AWARD

Signed Date 31.10 .2016

GA Black
Deputy Judge of the Upper Tribunal