Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/13929/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2nd August 2016
On 16th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE R C CAMPBELL

Between

[X y]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G Davison (Counsel)
For the Respondent: Ms Z Ahmad (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. The appellant is a national of China. His appeal against a decision to refuse him entry clearance was dismissed by First-tier Tribunal Judge Talbot ("the judge") in a decision promulgated on 2nd October 2015. The appellant sought to enter the United Kingdom as the dependent child of a person present and settled in the United Kingdom and his case was advanced on the basis that he could meet the requirements of the Immigration Rules (in paragraph 301) and in reliance upon his human rights, under Article 8 of the Human Rights Convention.

2. Following dismissal of the appeal, the appellant applied for permission to appeal on the basis that the judge had failed to decide the appeal in a coherent and rational way. In considering the Article 8 case, the judge referred to a number of facts that did not relate to the appellant's case at all. The judge recorded the appellant's name inaccurately (describing him as "Alvin", rather than ["XY"]), suggested that he suffered from malaria, although this was not the case, suggested that the appellant had submitted a doctor's letter, although he had not done so, and described the appellant's family circumstances wholly inaccurately (even suggesting that the appellant was born in the UK, although he was born in China). It was also contended that the judge erred in failing to place weight on a material aspect of the appellant's evidence, being the presence in the United Kingdom of his two younger siblings, British citizens. The decision contained no assessment of the best interests of the appellant and his younger siblings, as children.

3. Permission to appeal was granted on 8th June 2016. In a rule 24 response from the Secretary of State made on 22nd June 2016, the appeal was opposed on the basis that the decision could be read so as to make complete sense, so long as two paragraphs, numbered 16 and 17 at the end of the decision, were ignored.

Submissions on Error of Law

4. Mr Davison said that it was very likely that the judge had transposed two paragraphs from a completely different case, into the decision in the present appeal. Nonetheless, this could not be dismissed as a mere typographical error. At the heart of the case lay an assessment of the welfare of children, including the appellant and, at the very least, the decision had clearly not been proofread.

5. The judge also failed to assess the case in the light of the presence here of the appellant's siblings, British citizens. At paragraph 21 of the decision, the judge observed that the grant of discretionary leave and the grant of leave under the rules in a specific category, with a view to settlement, were different things. However, whether that was so or not very much depended on the reason for the grant of discretionary leave. The appellant's mother was given discretionary leave as the spouse of someone with indefinite leave to remain and the obvious inference was that her leave was given with a view to settlement by her after the required number of years.

6. Ms Ahmad handed up the judgment in Muse [2012] EWCA Civ 10 and drew attention to paragraph 33, where the Court of Appeal gave guidance that reasons given in a judgment might not need to refer to every material consideration. The last two paragraphs of the decision clearly did not deal with the case before the judge, but if they were ignored, it was clear from the rest of the decision that the judge had considered all the evidence. There were clear findings showing that he was not satisfied that the appellant's father had had sole responsibility for his upbringing. At the end of the day, any error in the presence of the two offending paragraphs was not material in the light of the clear reasoning which appeared earlier in the decision.

7. Overall, there was nothing in the evidence before the judge or the grounds of appeal suggesting a case meriting consideration under Article 8, outside the rules.

8. In a brief response, Mr Davison said that the salient issue in the appeal was the appellant's case that he should be reunited with siblings in the United Kingdom. Cogent reasoning was required in relation to this issue. The judge had not taken into account the presence of the appellant's mother in the United Kingdom. Before the judge, it was argued on the appellant's behalf that paragraph 301 of the rules was met, in the light of the discretionary leave given to the appellant's mother, with a view to settlement. Although the purpose of the leave given to her was not expressly stated in the grant itself, seen in context the leave was given as a spouse, with a view to settlement.

Decision on Error of Law

9. The decision has been prepared by a very experienced judge and I agree with Mr Davison that the inclusion of the final paragraphs may well have been an error caused by "cut and paste" word processing. Although the details contained in those final paragraphs clearly relate to another person, the blunt fact is that they were included in the decision sent for promulgation. They too concerned a case in which paragraph 297(i)(f) of the rules was in issue. Careful proofreading would have revealed the mistake in the inclusion of the paragraphs.

10. At first sight, there is force in Ms Ahmad's submission that all that is required is a reading of the decision which ceases at the end of paragraph 22 and ignores what follows. Putting to one side the other grounds of challenge, the earlier paragraphs set out what happened at the hearing, summarised the parties' cases and show the judge's reasoning. That approach, however, simply fails to engage with the inevitable doubt in the mind of a reasonable person reading the decision that the judge has, in the hackneyed phrase, considered the case with "anxious scrutiny". As explained by Carnwath LJ (as he then was) in R (YH) [2010] EWCA Civ 116, what is required in decisions is sufficient to show by their reasoning that every factor which might tell in favour of a claimant has been properly taken into account. The fundamental difficulty posed by paragraphs which contain so many different biographical and personal features that they indicate that another person's case has been confused with the one before the judge is that it is not clear that the relevant factors have been properly taken into account. As further explained by Moses LJ in ML (Nigeria) [2013] EWCA Civ 844, there can be no confidence that the correct approach has been taken where a Tribunal of fact plainly appears to have taken into account matters which ought not to have been taken into account. Indeed, ML (Nigeria) was similar to the present appeal as it concerned a decision in which a paragraph (at least one) relating to an appellant from Sri Lanka was included in a case concerning risk on return to Nigeria.

11. The overall conclusion reached by the Court of Appeal in ML (Nigeria) was that the errors, similar to those in the present appeal, plainly amounted to an error of law because the claimant in that case had no proper or fair hearing at all. I reached the same conclusion in this appeal.

12. There is no need to consider in detail the other grounds of challenge and Mr Davison's submission that the judge erred in his assessment of paragraph 301 of the rules. What is clear is that the decision must be set aside and remade and, as both representatives agreed, the proper venue for that is the First-tier Tribunal. There is, I find, some force in Mr Davison's argument that the only inference that can be drawn from the grant of discretionary leave to the appellant's mother was that it was granted to her as a spouse, with a view to settlement, but I express no final view and there appears to be no guiding authority on the point.

Notice of Decision

The decision of the First-tier Tribunal is set aside. It will be remade in the First-tier Tribunal, at Taylor House, before a judge other than First-tier Tribunal Judge Talbot. Further case management will be made at Taylor House.

Anonymity

There has been no application for anonymity at any stage in these proceedings and I make no direction on this occasion.

Signed Date 16/08/2016

Deputy Upper Tribunal Judge R C Campbell