Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/08852/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7th March 2017
On 26th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MAHMOOD

Between

Daniella Annessa stone
(anonymity direction not made)
Appellant
and

ENTRY CLEARANCE OFFICER – UKVS SHEFFIELD
Respondent

Representation:
For the Appellant: Out of Country Appeal
For the Respondent: Mr P Armstrong, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant was not in attendance as this is an out of country appeal, but her father, Mr Norris Stone and her stepmother, Mrs Sandra Stone, were in attendance and made submissions to me. I accepted those submissions and noted that they were authorised by the Appellant to make them. This is my ex tempore decision.
2. The Appellant had appealed against the decision of an Entry Clearance Officer dated as long ago as 1st May 2015 refusing her application to join her father in the United Kingdom pursuant to paragraph 297 of the Immigration Rules. The judge who heard the appeal, First-tier Tribunal Judge Miller sitting at Taylor House, had dismissed the appeal saying, amongst other things, that there were considerable gaps in the evidence.
3. The Appellant had sought permission to appeal. Those grounds were drafted and submitted by a firm of solicitors. There were three heads to those grounds: Firstly, unfairness of the new issues and relying on matters not put to the witness; second, inadequate reasoning and failure to consider all the evidence in the bundle; and third, failure to assess the totality of the evidence.
4. Permission to appeal was granted by First-tier Tribunal Judge Page on 30th January 2017 when it was said:-
“The Appellant’s solicitors have complained that at paragraphs 18 and 19 of the determination the judge has raised new issues that were not put to the witnesses and consequently the Appellant has been put at a disadvantage as she was unable to address these new issues during the hearing. The application states that if the issues raised about the judge’s concerns about the whereabouts of the Appellant’s mother had been put to the Sponsor and other witnesses, ‘the issue could have been clarified’. The judge has found at paragraph 18(iv) that he had ‘considerable difficulty in accepting that the Appellant does not know precisely where her mother is living’ and that there was no evidence from the Appellant’s mother giving her approval for her daughter to come to settle in the United Kingdom. I remind myself that it is not my function at the permission stage to make findings on the merits. If it is the case that the judge has opened new issues not put to witnesses and these have weighted the decision this would amount to an error of law. This issue can only be properly explored at a hearing so permission to appeal is granted.”
5. Mrs Stone and Mr Stone who appeared today struggled with the way in which the procedure applies in respect of appeals, despite me explaining it to them more than once. They said that they felt the judge’s decision was wrong because they are solely responsible for the Appellant. They had not put everything in writing, they said that they do not believe that the biological mother was around. Mrs Stone said that they are concerned for the Appellant’s health and that she herself has a disabled child. The plan was to settle first as a couple and then to call for the Appellant to come to the United Kingdom, but they did not know where the mother had gone. Mrs Lemonious was dealing with schooling and the like. She has a family of her own and was not expecting to hold on to her. The Appellant was now in a boarding school, her accommodation was “up in the air”. Mrs Stone said she now has all of the evidence for her schooling and that they contact her regularly. There was also reference to doctors’ appointments.
6. Mr Armstrong in his submissions set out what the grounds of appeal were and he said it was to be noted that there was no Presenting Officer at the original appeal hearing before the First-tier, and it was for the judge to decide what questions to ask and what not to ask. Reference was made to paragraphs 18 and 19 of the judge’s decision and there was a combination of various matters which were referred to. There was no material error of law after looking at the evidence in its totality.
7. As for the second ground, Mr Armstrong said that it was wrong that there were inadequate reasons. The ground was no more than a disagreement with the judge’s conclusion. There was a very large bundle, 195 pages, and the judge could not be expected to refer to each page. The third ground, on the totality of the evidence the judge did not do as was contended. He had regard to the 195 pages of the Appellant’s bundle. This in terms of the background was a paragraph 297 Immigration Rules appeal by a minor to join her parents in the United Kingdom. The lack of contact between the Appellant and her father was taken into account. The sole responsibility was the issue. It was nine years ago that the Appellant had left and the judge had considered the appropriate case law. The Appellant was in contact, but there was no evidence why it should have ceased. The Sponsor’s name was not on any of the letters from the school. There was reference to the Appellant being in the Girl Guides in Manchester, Jamaica and other similar evidence. Ultimately it was said that the grounds are no more than a disagreement with the judge’s decision. It was a well-reasoned decision. The findings were open to the judge. There was no error of law.
8. In reply Mr and Mrs Stone sought to refer to other new evidence, including that they did seek to apply for the Appellant to come before six years. I explained that I was not going to look at documents which were not produced to the Judge and new matters since then hearing. Ultimately they said that there was nothing else they could add.
9. In my judgment some of what the judge said does have a basis and the judge was entitled to make some of the findings as he did. However, I am persuaded that ground 1 in relation to the opening of new issues was a significant matter. The ground shows that the error is material. Particularly in a situation where the issues had not been raised by the Respondent in the refusal letter and not then canvassed by the judge during the hearing. It was not a situation of the making of the Appellant or the Sponsor that these questions and issues were not put. The Appellant was represented by Counsel on the day of the hearing and if the judge had sought there to be further clarification of the issues, then the judge could either have asked questions himself or could have asked Counsel for those matters to be dealt with.
10. In my judgment, paragraphs 5 and 6 of the grounds encapsulate the error:
“5. At paragraphs 18 and 19 of the determination, FTTJ stated that ‘Although I do not have the earlier refusal notice in front of me, it is clear from the refusal, as well as the refusal dated 1st May 2015, that the Respondent expected the Appellant to produce evidence to show ‘sole responsibility’ or ‘serious and compelling family or other considerations’, as required by paragraph 297(i)(e) or (f) of the Immigration Rules’.
6. At paragraph 18(1) the FTTJ stated that ‘He makes no further reference to the Appellant’s mother at all, and it would appear that the relationship between the mother and the Appellant simply ‘fizzled out’. It is argued that the Respondent did not mention the issue of the Appellant’s mother in the refusal letter. The FTTJ also did not put the question of the Appellant’s mother to the Sponsor and the witness for their response before coming to the conclusion in the absence of the Respondent at the hearing.
If this issue was put to the Sponsor and the other witness, the issue could have been clarified.”
11. During this morning’s hearing Mr and Mrs Stone were seeking to give the further explanation and as I explained, because this is an appeal against the First-tier Tribunal’s hearing, I cannot admit that evidence at this stage in seeking to come to a decision about the error of law, but I think the point was abundantly exemplified by them in that it is clear that had they been asked about this particular topic and issue, they would have provided the evidence to support their version. In my judgment the erroneous aspect of the Judge’s decision was a fundamental part of his findings and the basis for them. The findings clearly had quite a bearing on the judge’s conclusions in terms of the appeal itself. In the circumstances, in my judgment, despite the other parts of the judge’s conclusion which may by themselves have remained, the decision has to be set aside as even those aspects become infected by the erroneous approach.
12. In the circumstances I conclude that there was a material error of law in the Judge’s decision. With reference to section 12 of the Tribunals, Courts and Enforcement Act 2007 the decision is set aside in its entirety and there will be a re-hearing on all issues.
Notice of Decision
The decision of the First-tier Tribunal is set aside
I remit the matter to the First-tier Tribunal for rehearing by a Judge other than Judge Miller.

No anonymity direction is made

Signed Date 17 March 2017

Deputy Upper Tribunal Judge Mahmood