Tribunal decisions

The decision

IAC-HX-DML-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/08843/2014
OA/08845/2014
OA/08850/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 August 2016
On 18 January 2017

Before

upper tribunal judge conway

Between

Master hb (FIRST APPELLANT)
master ab (sECOND APPELLANT)
MISS AB (third appellant)
(ANONYMITY DIRECTION MADE)
Appellants

and

ENTRY CLEARANCE OFFICER - ACCRA

Respondent
Representation:

For the Appellants: Mr Solomon
For the Respondent: Mr Tufan

DECISION AND REASONS

1. The Appellants are citizens of Guinea. They are children born in 2000, 2010 and 2013. This case arises out of the ECO's decision made on 11 April 2014 to refuse their applications for entry clearance to settle in the UK.
2. In the applications it is submitted that the Sponsor Mr MAB is the father of the First and Third Appellants and the uncle of the Second Appellant, and that Mrs SB (wife of the Sponsor) is the mother of the First and Third Appellants.
3. The Sponsor has been granted refugee status in the UK.
4. The applications were considered under paragraph 352D of the Immigration Rules and refused as follows: (First Appellant) DNA tests indicated that the child was not related as claimed to either parent (paragraph 352D(i)). (Second Appellant) DNA tests indicated that the child is most likely not related to the Sponsor and whilst adoption papers had been provided to show that the child had been adopted in Guinea, given the basis of the relationship being disproved, the Respondent was not satisfied that the child had been legitimately adopted. That application also failed under paragraph 352D(i). It being noted that the Sponsor left Guinea in 2009 and the child was born in 2010 it was also refused under paragraph 352D(iv). The Third Appellant was also refused under paragraph 352D(iv).
5. They appealed. Following a hearing on 16 December 2015. Judge of the First-tier Malcolm dismissed the appeals in respect of all three Appellants under the Rules. She also dismissed the appeals of the First and Second Appellants on Article 8 human rights grounds. However, she allowed the appeal of the Third Appellant under Article 8.
6. The First and Second Appellants sought permission to appeal which was granted on 12 July 2016.
7. There was no challenge to the decision of the judge in dismissing the appeals under the Rules. Issue was taken with the decision to dismiss the appeals of the First and Second Appellants under Article 8.
8. The reason for that decision by the judge is stated at paragraphs 66 and 67. Simply, that although she noted the submission that both Appellants had "lived as part of the family with the Sponsor and his now wife" she could not "overlook the fact that there is no biological relationship of both Appellants with the Sponsor and/or his wife as evidenced by the DNA test" [66]. Also, that in light of the DNA evidence she did "not consider that (she was) able to accept that family life is established in respect of the First and Second Appellants" [67].
9. She went on to state that although she had taken account of the submissions as to the family circumstances she "did not accept (the representative's) submission that there are good grounds for finding that there are compelling circumstances looking at the evidence in the round to establish that Article 8 is engaged" (in respect of the First and Second Appellants).
10. Mr Solomon's short point before me was that the judge erred in law by treating the existence of a biological tie between the two older children and the Sponsor and his wife as a precondition for the existence of family life and why she rejected the evidence of the Sponsor and his wife and the submissions by the representative concerning the existence of other forms of family life.
11. I agree with Mr Solomon. Family ties may be established through adoption and fostering as well as through biological ties. In Labbink v Netherlands (45582/99) [2004] the European Court said that "The existence or non-existence of family life for the purposes of Article 8 was essentially a question of fact depending upon the real existence in practice of close personal ties."
12. The judge erred in finding as determinative that biological ties were necessary and in failing to consider the evidence before her as to de facto family life.
13. Mr Tufan's point was that even if there was error in that respect it was not material as the case, having been dismissed under the Rules, there were no compelling circumstances not sufficiently recognised under the Rules such that it needed to be considered under Article 8.
14. I do not agree. It is clear that the judge turned her mind to compelling circumstances (not least because she found there were such in respect of the Third Appellant). It is reasonable to conclude that had she applied herself correctly in her analysis of family life in respect of the older two children she would have gone on to consider whether there were factors existing which are relevant to the proportionality assessment which are not fully reflected in the Rules which are designed to cover the generality of cases.
15. I consider that her failure of approach on the issue amounted to a material error.
16. I set aside the decision in respect of the Article 8 decisions. The decisions under the Immigration Rules stand.
17. Mr Solomon had asked that were I to find material error I should set the matter down for resumed hearing to allow for the Sponsor's wife to give evidence which she could not do at present as she is in the advanced stages of pregnancy.
18. I do not think that is the appropriate course. This is an out of country appeal and the relevant evidence is that pertaining at date of decision.
19. In considering this matter I satisfied that there are compelling circumstances which require the children's cases to be examined outwith the Rules. Not least because they are children and (if found to be part of the family unit) have siblings who are in the UK with the Sponsor and his wife. Mrs SB has come lawfully to the UK for settlement "with a further child of theirs" [statement]. Also, it was indicated that although permission to appeal had been sought in respect of the decision allowing the appeal on Article 8 grounds of the Third Appellant such had not been pursued and indeed entry clearance had been granted and that child was now with her family in the UK.
20. I next consider whether there was family life. In respect of the First Appellant the clear indication from the DNA report is that neither the Sponsor nor his wife are the biological parents. As indicated, whether there has been family life is a question of fact. The claim is that they have brought up the oldest child from birth. The Sponsor's oral and written evidence was that he had always believed him to be his son, that when he was born he named him, that he brought him up, fed him and looked after him "during his whole life" [statement]. The first time that he was aware of any information indicating that he was not his son was in the course of these proceedings when the matter was raised by the Respondent.
21. His wife's evidence is in similar terms.
22. Applying the civil standard I believe that evidence. I find it of some significance that had they known they were not the parents they would not have gone to the expense and trouble of getting their own DNA report in response to the one got by the Respondent. I note also that there is no suggestion by the Respondent that the details in the application form were an attempt to deceive. There is a "Supplementary Judgement in Lieu of Birth Certificate" from a court in Conakry which gives support to their claim to have had responsibility for the First Appellant since his birth. On the balance of probabilities I find that the Sponsor and his wife despite the lack of biological connection have had de facto parental responsibility for the First Appellant and that such amounted to family life.
23. As for the Second Appellant the claim is that he was adopted following the death of a relative's wife in 2010. There is documentation which supports that claim including court judgements and a medical report from a doctor at the Nutrition and Children's Health Institute, Conakry. I see no reason, and none was suggested, why I cannot rely on the contents of such documents. Criticism is made on one issue in the documentation, namely, differences in the date of death of the Second Appellant's mother; the death certificate gives the date as 16 May 2012, whilst a death declaration states it to be 16 May 2010. Also, criticism is made of a claimed discrepancy between the application form where it was said he was the son of a relative of the Sponsor, but in the grounds of appeal it was said that he is an orphan raised by the Sponsor's wife since his birth.
24. On the former, I accept that the reference to the Second Appellant being born in 2012 is a mistake. As indicated no attack has been made on the numerous other documentation.
25. On the latter I see no discrepancy. The application form does not ask for the dates (if applicable) of deceased parents. Further, there is documentation on file which supports the claim not only that the Second Appellant's mother died in 2010 but that his father went missing in late 2009 following "the sad event that took place on the 28/9/2009 at the stadium in Conakry" [court judgement].
26. That a massacre took place on that date at a stadium in Conakry attended by political oppositionists is clear from background material which is in the public domain.
27. From the evidence I find that the Second Appellant was brought up from the time of his mother's death in 2010 by Mrs SB and that family life is shown.
28. I find that the consequences of the refusal of entry to the First and Second Appellants potentially engage Article 8 by interfering with the State's positive obligations in respect of family reunion.
29. The issue is proportionality. In that regard it counts against the First and Second Appellants that they do not satisfy the Rules. Nor do s117 public interest factors assist them. Also the evidence indicates that the conditions in which the children are living in Guinea with relatives are adequate. On the other hand I consider that the best interests of these two children are clearly be with the Sponsor and his wife who they regard as their parents. That they miss them is clear from their statements lodged for the First tier hearing. Indeed, they speak of feelings of abandonment. They are still young, the Second Appellant especially so. I have no doubt that they have a strong emotional need to reunite with the Sponsor and his wife. Their best interests also must be to be with their siblings who include another child who was granted entry clearance at the same time as the mother. Moreover, as indicated entry clearance was also granted following the positive decision on human rights in respect of the Third Appellant and she is in the UK with her parents. I can see no basis in this conjoined appeal to reach a different view in respect of the two older children as was reached in respect of the youngest, the Third Appellant. Family life cannot be taken up in Guinea as the Sponsor has refugee status in the UK.
30. In the particular circumstances of this appeal I conclude that the factors in favour of the First and Second Appellants outweigh the public interest in immigration control.
31. The appeals of the First and Second Appellant succeed on Article 8 human rights grounds. The decision in respect of the Third Appellant whose appeal was allowed on Article 8 grounds, being unchallenged, stands.

Notice of Decision
The decision of the First-tier Tribunal showed error of law. That decision is set aside and remade as follows:
The appeals are allowed under Article 8.

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.

Signed Date

Upper Tribunal Judge Conway

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeals if a fee has been paid I have considered making a fee award and have decided to make no fee award of any fee which has been paid for the following reason: the evidence which resulted in the conclusion that there was family life was first raised at the First tier Tribunal.

Signed

Upper Tribunal Judge Conway