Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/08439/2014
OA/05573/2014
OA/05564/2014

THE IMMIGRATION ACTS

Heard at Taylor House
Decision & Reasons Promulgated
On 18 December 2015
On 4 January 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

ENTRY CLEaRANCE OFFICER (Nairobi)
Appellant
and

(1) N
(2) I
(3) L
(ANONYMITY DIRECTION MADE)
Respondent

Representation:

For the Appellant: Ms A Everett, Home Office Presenting Officer.
For the Respondent: None

DECISION AND REASONS

1. This matter comes before me for consideration as to whether or not there is a material error of law in the determination of First-tier Tribunal Judge Majid ("the FTTJ") promulgated on 17 June 2015, in which he allowed the appellants' appeals against the refusal of entry clearance as the adopted children of the sponsor, who has refugee status in the UK.

2. For ease of reference and continuity, throughout this decision I maintain the descriptions of the parties as appellant and respondent, as set out in the FTTJ's decision, although it is the Entry Clearance Officer who pursues this appeal.

3. No anonymity direction was made in the First-tier Tribunal but, given that the appellants were minors at the date of decision, an anonymity order is appropriate.

Background

4. The sponsor is the adoptive mother of the appellants who applied for entry clearance to join her in the UK. The respondent considered the applications under paragraph 352D of the Immigration Rules. He identified anomalies in the birth certificates and adoption papers produced by the appellants in support of their applications. He was not satisfied that the appellants had been lawfully adopted or, alternatively, that de facto adoptions had taken place. Furthermore, he noted that adoptions in Uganda were not "recognised under UK law" at the date of decision (albeit they had been previously).

5. The appeal in the First-tier Tribunal was pursued on the grounds that the decision was in breach of the Immigration Rules and on Article 8 grounds. The FTTJ allowed the appeal on the grounds that the appellants "come within the law and can benefit from the relevant Immigration Rules, as amended" (paragraph 27). I assume, from this, that it was allowed under the Immigration Rules.

6. Permission to appeal was granted in the following terms:

"The judge, who made no direct reference to the relevant Immigration Rules or to the reasons given by the respondent for refusing entry clearance, arguably failed to make findings as to whether any of the appellants was adopted by the sponsor, whether any such adoption was official or de facto and whether the appellants met the other requirements of the Rules which were put in issue; and arguably failed to give adequate reasons for his findings and conclusion."

7. Thus the matter comes before me.

The Hearing

8. On the morning of the hearing before me, the sponsor had telephoned the Tribunal to advise that she was unwell and would be unable to attend the hearing.

9. Whilst the sponsor had not requested an adjournment of the hearing I considered, of my own motion, whether to adjourn it. I invited submissions from Ms Everett on behalf of the Secretary of State. She noted that the appellants had no legal representation, that there was no indication that, if the matter were adjourned, the sponsor would be able to attend on another occasion and that she would be making oral submissions to the effect that the matter should be remitted to the FTT for rehearing. She submitted it was in the interests of justice for the hearing to go ahead. I bore in mind the sponsor had not requested an adjournment of the hearing, the lack of representation for the appellants and the absence of information as to whether the sponsor would attend an adjourned hearing. I considered that there was little to be gained from adjourning the hearing. It was in the interests of justice for it to proceed.

Submissions

10. Ms Everett submitted the FTTJ had failed to give sufficient reasons as to why the appellants fulfilled the criteria in the Immigration Rules or on Article 8 grounds (it not being clear on which ground the appeal had been allowed). The respondent had raised credibility issues in his decision yet these had not been addressed. Those credibility issues went to the heart of the relationship between the sponsor and appellants. The FTTJ had failed to make a finding as to the nature of their relationship: whilst it was implicit that he had found the sponsor was an adoptive parent, he had not identified whether this was a lawful adoption or a de facto one.

11. Ms Everett described the decision as "woefully inadequate" considering the importance of the issue for the parties concerned and the fact that it involved children moving from one country to another.

Discussion and Findings

12. The FTTJ's decision contains a number of errors of law material to the outcome of the appeals. Nowhere in the decision does he refer to the paragraphs of the Immigration Rules taken into account in reaching his decision. This absence, in combination with the lack of reasoning for his findings renders the decision unsustainable. He has not addressed at all any of the respondent's concerns about the reliability of the documentary evidence submitted in support of the claim that the appellants had been officially adopted by the sponsor. These are issues which go to the heart of the appeals. Furthermore, even if the FTTJ had decided these were de facto adoptions, rather than official adoptions (and it is not clear from the decision that this is the case), there is no reasoning to support such a finding. Thus it is unclear on what basis the FTTJ has reached his decision to allow the appeals. Whilst it could be inferred from paragraph 27 that the appeals were allowed under the Immigration Rules, even taking the decision as a whole, it is not possible to identify the FTTJ's findings as regards the nature of the adoption and why the appellants fulfil the criteria in the relevant paragraph of the Rules.

13. For these reasons, the decision of the First-tier Tribunal contains a material error of law in that the assessment of the evidence is inadequate and there is insufficient reasoning. The FTTJ's decision must be set aside in its entirety. Ms Everett submitted that, in the event of such a finding, it was appropriate for the appeal to be decided afresh in the First-tier Tribunal. I agree with her.
Decision

14. The making of the decision of the First-tier Tribunal involved a material error on a point of law.

15. The decision of the FTTJ is set aside.

16. The appeal is remitted to the First-tier Tribunal, to be dealt with afresh, pursuant to Section 12(2)(b)(i) of the Tribunal Courts and Enforcement Act 2007 and Practice Statement 7.2(v), before any judge aside from FTTJ Majid.

A M Black
Deputy Upper Tribunal Judge Dated: 18 December 2015

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the appellants and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Fee Award
The FTTJ made a fee award but, given that the decision has been set aside, the fee award is set aside also.

A M Black
Deputy Upper Tribunal Judge Dated: 18 December 2015