Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/08350/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 March 2016
On 17 March 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

Mr desmond nKrumah agyemang
(ANONYMITY DIRECTION not made)

Appellant

and

entry clearance officer - accra

Respondent

Representation:

For the Appellant: No appearance
For the Respondent: Mr S Staunton, Specialist Appeals Team

DECISION AND REASONS

1. The appellant appeals to the Upper Tribunal from the decision of the First-tier Tribunal (Judge Griffith sitting at Taylor House on 29 July 2015) dismissing his appeal against the decision of an Entry Clearance Officer to refuse him entry clearance as the child under the age of 18 of a person settled in the UK. The First-tier Tribunal did not make an anonymity direction, and I do not consider that the appellant requires anonymity for these proceedings in the Upper Tribunal.

The Reasons for Granting Permission to Appeal
2. On 25 January 2016 First-tier Tribunal Judge Colyer gave his reasons for granting the appellant permission to appeal.
1. The Appellant seeks permission to appeal against a decision of the First-tier Tribunal (Judge Griffith) who, in a determination promulgated on 28th August 2015 dismissed the Appellant's appeal against the Respondent's decision to refuse his application for leave to enter the United Kingdom under the immigration rules for the purpose of settlement has a child of the sponsor who is settled in he United Kingdom.
2. In summary the appellant's Grounds and reasons for permission to Appeal to the Upper Tribunal drafted by the appellant's representative assert:
a. The judge found that the sponsor did not have sole responsibility however the reasons for these findings are inadequate and flawed.
b. The judge also erred by failing to consider article 8 ECHR and s55 both had been put forward in the original grounds of appeal. "The determination gives no material consideration to the best interests of the appellants who are after all children."
c. The determination fail to comply with issued guidance for when considering applications such as that of the appellants.
3. The grounds for application referred to "children" whereas there is only a single appellant.
4. Permission to appeal may be granted if I am satisfied that there was a material error of law that would have made a material difference to the outcome of the original appeal. This could be due to adverse or irrational findings or a lack of findings on core issues as established in he case of R (Iran etc) v SSHD [2005] EWCA Civ 982.
5. In a well reasoned determination the judge gave adequate reasons for finding that the appellant and his Sponsor did not satisfy the requirements of the immigration rules. The judge has carefully considered the evidence put forward by the sponsor and explains why he came to the conclusion that the evidence does not satisfy the requisite immigration rules.
6. Contrary to the submissions, it is apparent that the judge has considered the best interests of the child (see paragraph 31). As this is about a country appeal s55 does not apply.
7. The findings that the judge reached in respect of "sole carer" and best interests were open to the judge on the evidence before the tribunal and I can discern no arguable error of law. The grounds amount to nothing more than a disagreement with the findings of the judge, findings which were properly open to the judge on the evidence before the tribunal.
8. It is correct that the original grounds of appeal included a submission that the respondent's decision breached article 8 ECHR. The judge does not make findings in respect of that issue. It is arguable that the judge has misdirected himself for the failure to consider article 8 ECHR and the grounds submitted by the respondent on that point is arguable. Permission to appeal to the Upper Tribunal is granted on that point.
The Hearing Before, the Decision of, the First-tier Tribunal
3. At the hearing before Judge Griffith, Miss Victor-Mazeli of Counsel appeared on behalf of the appellant. There was no appearance by a Presenting Officer on behalf of the Entry Clearance Officer. The judge received oral evidence from the sponsor, which he recorded in some detail at paragraphs [13] to [19] of his subsequent decision.
4. The main issue in the appeal was whether the sponsor had been exercising sole responsibility for the appellant (date of birth 25 May 1996) in Ghana, despite the appellant's mother being alive and being present in Ghana. The line taken by the Entry Clearance Officer in the refusal decision was that it was the appellant's mother, not his sponsor in the UK, who had taken the important decisions about the appellant's upbringing.
5. But an alternative argument raised by way of appeal was that it was in the best interests of the appellant for him to be reunited with the sponsor, given that his mother was no longer able or willing to care for him, so that this constituted serious and compelling family or other considerations which would make it desirable not to refuse the appellant entry clearance. In the same context, the appellant raised in his notice of appeal a claim under Article 8 ECHR.
6. In his review, the Entry Clearance Manager addressed the claim under Rule 297(i)(f) and the parallel claim under Article 8 ECHR. The judge set out the Entry Clearance Manager's case in this regard at paragraphs [9] and [10] of his decision.
7. At paragraph [20], the judge summarised Miss Victor-Mazeli's closing submissions on behalf of the appellant. These were primarily directed at the issue of sole responsibility. But in the alternative, Rule 297(i)(f) was relied on:
It is in the appellant's best interests to be with his father given the circumstances prevailing in Ghana.
8. The judge's findings on the disputed issues were set out in paragraphs [22] onwards. For present purposes, it is only necessary to refer to paragraphs [29] to [32], which I set out verbatim below.
29. I do not find that documentary evidence produced establishes that the sponsor has had and has sole responsibility for the appellant. I reject the sponsor's evidence that there was a rift between the appellant and his mother in 2012 after which he left her home and since which time the sponsor has had sole responsibility. I find on the balance of probabilities that responsibility for the appellant's upbringing has been shared and that that was the position at the date of his application.
30. I have considered in the alternative whether there are serious and compelling family or other considerations which make the exclusion of the appellant undesirable but in light of my concerns about the credibility of the sponsor and his evidence about the circumstances in which the appellant is living, I do not find the appellant has shifted the evidential burden.
31. As regards the best interests of the child, the appellant was a month away from his majority at the date of the application and was a student, thus living a semi-independent life away from home during term time. In light of the discrepant evidence about the length of his course, his current circumstances are not entirely clear. It was submitted that it was in the best interests of the appellant to be with his father given the circumstances prevailing in Ghana; on the sponsor's evidence that would mean removing him from his university course with no guarantee that he could continue his education in the UK. As, however, I have not found the sponsor's account of the appellant's circumstances in Ghana to be truthful, I am satisfied that the respondent's duties under Section 55 have been met.
32. For these reasons I find the appellant has not discharged the burden on him to show that he meets the requirements of the Immigration Rules.
The Rule 24 Response
9. On 10 February 2016 Mr Staunton settled a Rule 24 response on behalf of the Entry Clearance Officer opposing the appeal. In summary, it was contended that the Judge of the First-tier Tribunal had directed himself appropriately:
3. Judge Griffith finds that the appellants sponsor is not solely responsible for him and that there is no existing rift between the appellant and his mother. Within the determination there is no indication that the appellants counsel gave submissions in relation to Article 8.
4. At paragraph 31 of the determination Judge Griffith finds that the appellant is living a semi independent life in Ghana, it must follow that the appellants Article 8 rights have been established in Ghana. Judge Griffiths also finds in paragraph 25 that the appellant and sponsor do have regular contact, it must follow that the Entry Clearance Officers decision does not prevent the appellant from continuing this contact and ultimately continuing to fulfil his Article 8 rights. The determination of Judge Griffiths does not contain a material error of law.
The Hearing in the Upper Tribunal
10. After close of business on 29 February 2016, the day before the scheduled hearing of the appeal before me to determine whether an error of law was made out, the appellant's solicitors, Nasim & Co, sent an email to the Upper Tribunal requesting an adjournment. The ground for seeking an adjournment was that the sponsor had missed his scheduled return flight to the UK from Ghana, and so was not going to be back in the UK in time for the hearing. In support of the adjournment application, the solicitors filed an itinerary showing that the sponsor had been scheduled to fly out to Ghana on 21 February 2016, and had been scheduled to come back on a flight departing from Ghana on the night of 28 February. However, no explanation was given as to how it had come about that the sponsor had missed his flight home.
11. As should have been obvious to Nasim & Co, the ability of the sponsor to attend the hearing did not provide an adequate justification for adjourning the hearing, the primary purpose of which was to establish whether an error of law was made out. The sponsor had nothing to contribute in this regard. The appellant had been legally represented before the First-tier Tribunal by Counsel, who was presumably instructed by Nasim & Co. That same firm had instructed Counsel to appear before me in another case on my list. I obtained confirmation from Counsel that she did not have any instructions with regard to this appeal. In all the circumstances, I was satisfied that it was in the interests of justice to proceed with the error of law hearing in the absence of a representative of the appellant, and I was satisfied that it would be contrary to the overriding objective to grant the written adjournment request made by Nasim & Co.
12. Mr Staunton submitted that the appeal should be dismissed for the reasons given by him in his Rule 24 response.
Discussion
13. In Mundeba (s55 and para 297(i)(f)) Democratic Republic of Congo [2013] UKUT 88 (IAC) the Upper Tribunal held that "serious" means that there needs to be more than the party simply desiring a state of affairs to obtain. "Compelling" in the context of paragraph 297(i)(f) indicates considerations that are persuasive and powerful. It sets a high threshold and it excludes cases where, without more, it is simply the wish of the parties to be together, however natural that ambition may be. It is further stated that the exercise of the duty by the Entry Clearance Officer to assess the application under the Rules inevitably involves an assessment of what the child's welfare and best interests require.
14. In T (s55 BCIA 2009 - entry clearance) Jamaica [2011] UKUT 00483 (IAC), the Tribunal held that:
Where there are reasons to believe that a child's welfare may be jeopardised by exclusion from the United Kingdom, the considerations of Article 8 ECHR, the "exclusion undesirable" provisions of the Immigration Rules and the extra statutory guidance to Entry Clearance Officers to apply the spirit of the statutory guidance in certain circumstances should all be taken into account by the ECO at first instance and the judge on appeal.
15. Having reviewed the judge's manuscript Record of Proceedings, I am able to confirm that, as surmised by Mr Staunton in his Rule 24 response, Counsel for the appellant did not advance an Article 8 claim in her closing submissions. Although Article 8 was raised in the notice of appeal, matters had moved on by the time that the judge came to give his reasons for dismissing the appeal.
16. In his ECM appeal review, the Entry Clearance Manager rejected the Article 8 claim on two grounds. The first ground was that there was no additional evidence relating to the Article 8 claim which was not already relied on in support of the claim under Rule 297(i)(f).
17. It is apparent from the judge's manuscript Record of Proceedings that the reason why Counsel for the appellant did not advance a distinct Article 8 claim was that, consistent with the guidance given by the Upper Tribunal in T and Mundeba, she was only seeking to rely on Article 8 ECHR considerations in support of the alternative case that the appellant's exclusion was undesirable under Rule 297(i)(f). In short, she rightly recognised that a distinct claim under Article 8 was superfluous. Hence, she relied heavily on the proposition that the Rule was satisfied because the child's exclusion was contrary to the child's best interests which, following ZH (Tanzania) v SSHD [2011] UKSC 4, are a primary consideration in the proportionality assessment at stage 5 of the Razgar test.
18. As was held by the judge who granted the appellant permission to appeal to the Upper Tribunal, the First-tier Tribunal judge gave adequate reasons for finding that the appellant had not discharged the burden of proving that he met the requirements of the Rules, which include Rule 297(i)(f).
19. Given the nature and scope of this particular Rule, the appellant could not succeed in an alternative claim under Article 8 ECHR. There could not be any compelling circumstances which would enable him to succeed in a claim outside the Rules, as all relevant compelling circumstances (if any) would necessarily have been considered in the context of whether the appellant could bring himself within Rule 297(i)(f).
20. Having made a sustainable finding that it was not contrary to the appellant's best interests to exclude him from the UK, rather than remaining in his home country to continue with his university education, a putative Article 8 claim could not get off the ground.
21. Moreover, as previously canvassed, Counsel for the appellant had not invited the judge to consider whether the appellant had a viable Article 8 claim in the event that he failed to discharge the burden of proving that he qualified for entry clearance under Rule 297(i)(f).
Notice of Decision

The decision of the First-tier Tribunal did not contain an error of law, and the decision stands. This appeal to the Upper Tribunal is dismissed.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Monson