Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/13842/2014

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 10 March 2017
On 14 March 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

G D M D
(ANONYMITY DIRECTION made)
Appellant
and

ENTRY CLEARANCE OFFICER - PARIS
Respondent

Representation:
For the Appellant: Ms U Dirie instructed by Migrant Legal Project Cardiff
For the Respondent: Mrs H Aboni, Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
2. The appellant is a citizen of the Ivory Coast who was born on 20 December 1996. On 31 March 2014, he applied for entry clearance to join his mother, a refugee in the United Kingdom, under para 352D of the Immigration Rules (HC 395 as amended). That application was refused on 16 September 2014.
3. The appellant appealed to the First-tier Tribunal. In a decision promulgated on 7 July 2016, Judge Burnett dismissed the appellant’s appeal.
4. The appellant sought permission to appeal to the Upper Tribunal and, on 17 December 2016, the First-tier Tribunal (Judge Adio) granted the appellant permission.
5. The background to the application is as follows. Prior to 2002, the appellant lived with his mother (the sponsor) together with his grandparents in the Ivory Coast. In 2002, the sponsor came to the UK as a student. The appellant was, at that time, 5 years of age.
6. The appellant continued living with his grandparents in what Judge Burnett described as a “family unit” until 2011. In 2011, the appellant went to Tunisia where he attended a boarding school. That school was, as I understand it, a football academy. The appellant has remained there ever since.
7. The sponsor has remained in the UK since 2002. She remained as a student until 2012 when she claimed asylum. Her refugee status was recognised in June 2013.
8. The principal issue before Judge Burnett was whether or not the appellant met the requirement in para 352D(ii) namely that he:
“is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; …”
9. Paragraph 352D(iv) was in issue, namely whether the appellant formed “part of the family unit” of his mother at the time that she left the Ivory Coast. The judge found in the appellant’s favour on that issue and I need say no more about it.
10. However, as regards the issue under para 352D(iii), the judge did not accept that the appellant had established that he was “not leading an independent life”.
11. In her oral submissions, Ms Dirie submitted that the judge had failed properly to apply the approach to the phrase “leading an independent life” set out in the Asylum and Immigration Tribunal’s decision of NM (“leading an independent life”) Zimbabwe [2007] UKAIT 0051, in particular by failing to consider whether his circumstances in Tunisia arose from “choice”. She submitted that he had left the Ivory Coast in order to avoid the same risk that formed the basis of the sponsor’s refugee status.
12. In her submissions, Mrs Aboni, on behalf of the Entry Clearance Officer submitted that it was open to the judge on the evidence before him to find that the appellant’s circumstances were such that he was living a “independent life”, attending school, working part-time and not remaining in close contact with his mother or grandparents.
13. At the outset of the hearing, I drew to the attention of both representatives that the relevant phrase in para 352D(iii) of “not leading an independent life” was now defined in para 6 of the Rules. A definition was initially inserted into para 6 from 9 July 2012 by HC 194. The current definition was substituted from 1 December 2013 by HC 803. It provides that:
“’the phrase must not be leading an independent life’ or ‘is not leading an independent life’ means that the applicant does not have a partner as defined in Appendix FM; is living with their parents (except where they are at boarding school, college or university as part of their full-time education); is not employed full-time (unless aged 18 years or over); is wholly or mainly dependent upon their parents for financial support (unless aged 18 years or over); and is wholly or mainly dependent upon their parents for emotional support.”
14. Both representatives acknowledged that the judge had not considered this definition inserted into the Rules subsequent to NM. Both representatives accepted that, as a consequence, the judge had erred in law by failing to apply the relevant definition and that his decision could not stand and that the appeal should be remitted to the First-tier Tribunal for a de novo rehearing.
15. The concession by both representatives was, in my judgment, properly made. The judge’s attention was not drawn to the definition of the phrase “is not leading an independent life” in para 6 of the Rules. That definition, of course, to the extent it differs from that in NM was the one which had to be applied by the judge. Although through no fault of his own, the judge therefore failed properly to direct himself on the relevant phrase in para 352D(iii) and to make factual findings on the evidence relevant to all aspects of that definition. The definition contemplates a number of cumulative factors each of which must be satisfied in order for it to be said that a person “is not leading an independent life”. Although the judge dealt in part with the issues of financial and emotional support, the judge’s findings are insufficiently explicit for me to be confident as to how he would have applied the definition in para 6 if he had been made aware of it.
16. For these reasons, as both representatives acknowledged, the judge erred in law in dismissing the appellant’s appeal under para 352D and that decision is set aside.
17. Both representatives indicated that the proper disposal of the appeal was to remit it to the First-tier Tribunal. I remit the appeal to the First-tier Tribunal and direct a de novo rehearing before a judge other than Judge Burnett.

Signed

A Grubb
Judge of the Upper Tribunal
Date