Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/09024/2015
OA/09025/2015
OA/09026/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 6 March 2017
On 7 March 2017

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

NJ
MF
FJ
ANNONYMITY ORDER MADE
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Ms Jones, Counsel
For the respondent: Mr Staunton, Senior Home Office Presenting Officer

DECISION AND DIRECTIONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the Appellants in this determination identified as NJ, MF, FJ.
1. I have made an anonymity order because this decision refers to the circumstances of children. The first appellant is the mother of the second and third appellants. For the avoidance of any doubt the three appeals rely upon the same factual matrix and are linked.
2. In a decision dated 27 September 2016 the First-tier Tribunal dismissed the appellants’ appeals against decisions dated 30 April 2015 refusing their respective applications for entry clearance in order to join the first appellant’s husband and the second and third appellant’s father, who I shall refer to as the sponsor.
3. At the beginning of the hearing Mr Staunton accepted that the First-tier Tribunal decision contains a material error of law such that it needs to be set aside and remade by the First-tier Tribunal. Ms Jones agreed with this approach. Given the agreement between the parties I now provide succinct reasons for my decision.
4. The main issue before the First-tier Tribunal related to the genuineness of the sponsor’s relationship with the appellants. The respondent did not accept the genuineness of the relationship. The sponsor left Bangladesh and his family members in 2006 to work in the United Kingdom. He did not return to Bangladesh until 2012 and did not see his family members for six years. He maintained that the relationship subsisted during this time and continues. In support of this claim the appellants relied upon, inter alia, a witness statement from the sponsor, an affidavit from the first appellant, and supporting statements from the sponsor’s friend and uncle. The sponsor also attended the hearing and gave detailed oral evidence. The record of proceedings makes it clear that the sponsor was cross-examined in some detail and at length by the respondent’s representative.
5. The First-tier Tribunal decision makes no findings regarding the sponsor’s detailed oral evidence. Whilst it is clear that the First-tier Tribunal did not accept the sponsor’s reasons for not returning to Bangladesh for a 6-year period [34], no other findings are made regarding the sponsor’s oral evidence. The First-tier Tribunal also failed to take into account the supporting evidence from the first appellant and the sponsor’s friend and uncle.
6. I appreciate that the First-tier Tribunal made it clear on two occasions that everything was taken into account [7 and 36] but when the decision is read as a whole, the First-tier Tribunal did not adequately consider or give reasons for rejecting crucial evidence set out above, in particular the oral evidence of the sponsor. The First-tier Tribunal has erred in law in focussing upon the documentary evidence provided without considering this alongside the oral evidence and other supporting evidence.
7. I have had regard to para 7.2 of the relevant Senior President’s Practice Statement and the nature and extent of the factual findings required in remaking the decision, and I have decided that this is an appropriate case to remit to the First-tier Tribunal.
Decision
8. The decision of the First-tier Tribunal involved the making of a material error of law. Its decision cannot stand and is set aside.
9. The appeal shall be remade by the First-tier Tribunal de novo.
Directions
(1) The three appeals are linked and shall be heard together.
(2) The appeals shall be reheard de novo by the First-tier Tribunal sitting at Taylor House (TE: 2 hrs) on the first date available.
(3) 28 days before the hearing the appellants shall file and serve one comprehensive bundle of evidence relied upon.
(4) 7 days before the hearing the respondent shall file and serve her updated position.

Signed:

Ms M. Plimmer
Judge of the Upper Tribunal

Date:
6 March 2017