Tribunal decisions

The decision

Upper Tribunal
Immigration and Asylum Chamber Appeal Numbers: OA/15375/2012
OA/15376/2012

THE IMMIGRATION ACTS

Heard at Field House
Promulgated on:
On 20 June 2013

24 June 2013

Before

Upper Tribunal Judge Kekić

Between

Hursit Yorulmaz
Dervis Yorulmaz
Appellant
and

Entry Clearance Officer
Istanbul

Respondent

Determination and Reasons

Representation
For the Appellant: Mr J Rendle, Counsel
For the Respondent: Ms E Martin, Senior Home Office Presenting Officer

Details of appellant and basis of claim

1. These joint appeals come before me following the grant of permission on 13 May 2013 by First-tier Tribunal Judge Cruthers in respect of the determination of First-tier Tribunal Judge Wyman dismissing the appeals following a hearing at Hatton Cross on 27 March 2013.

2. The appellants are Turkish nationals and sons of the sponsor, Ahmet Yorulmaz. They were born on 23 August 1994 and 21 August 1999. Their parents are divorced and the sponsor has remarried. Their mother remains in Turkey. The applications for entry clearance were refused on 25 July 2012 under paragraph 297. Previous applications were refused in January 2011.

Appeal hearings

3. At the hearing before me, I heard submissions from the parties. The sponsor was present and the proceedings were translated to him by an interpreter.

4. In a Rule 24 response the Secretary of State accepted that the judge’s findings on maintenance may contain an error of law but argued that this was not material as the findings on sole responsibility were sustainable.

5. For the appellant, Mr Rendle submitted that the judge had failed to analyse the nature of the responsibility she found was shared between the appellants’ mother, father and grandmother; for example, there was no clarification of who did what. In paragraph 46 the judge referred to reservations with respect to the sponsor’s evidence which she stated she would discuss later in the determination but no such discussion is apparent. The sponsor’s evidence was found to be true overall and that included his claim that he had made all the decisions on education for the appellants. This was further confirmed by the sponsor’s brother’s evidence.

6. Mr Rendle referred to paragraph 55 of the determination and submitted that the judge had applied a historic test which was contrary to the guidance in TD (Yemen). He submitted that it was permissible for sole responsibility to be of a short duration.

7. He submitted that there had been a clear error with respect to maintenance issues in that the sponsor’s rental income had not been taken into consideration.

8. In response Ms Martin submitted that there was no error of law. The sponsor had spent little time with the appellants who had resided with their mother until 18 months ago. The sponsor had chosen to leave his sons and come here for his second marriage. The documentary evidence showing his financial support for the appellants all post-dated the decision. The judge had been entitled to find that the appellants were cared for by their grandmother and not the sponsor who had exaggerated his involvement. With respect to maintenance, the annual income was £8000-£10,000 and there was no breakdown of monthly income however even if the rental income for the three months between April (when it commenced) and the date of the decision in July was considered, the sponsor still did not meet the required threshold. The appeals should be dismissed.

9. Mr Rendle replied. He pointed to three withdrawals of cash as shown in the respondent’s bundle which predated the application. He also submitted that the criticism of a failure by the sponsor to produce information regarding schooling and other activities did not mean that findings had been made as to who did deal with those matters.

10. At the conclusion of the hearing I reserved my determination which I now give.

Findings and Conclusions

11. Two aspects of the determination are criticised by the appellants. The first concerns the findings on sole responsibility and the second that on maintenance although it is accepted that if the first challenge cannot be made out, the second achieves nothing even if it is successfully established.

12. I therefore deal first with the issue of sole responsibility. The judge found the sponsor’s evidence to be true overall but considered there were “a couple of issues” where she believed he had exaggerated the situation (paragraph 46). Although she states she will discuss this later, she has not done so. Having accepted that the sponsor has been financially supporting the children since 2011 (paragraphs 54 and 56), that he has custody of the children (paragraph 54) and that the children have lived with their paternal grandmother for the last 18 months (paragraph 54), the judge does not accept that the sponsor “has had” sole responsibility for their upbringing. As Mr Rendle pointed out, TD does not support refusal based on a historic test. The judge should have considered whether the sponsor had sole responsibility at the date of the decision. It is not clear from the determination that she did this. The judge also found that responsibility was shared between the appellants’ mother, father and grandmother but gives no reasons why she finds that the mother is involved (paragraph 58). An examination of the findings as a whole does not make this clear. This cannot be inferred from the mere fact that they had previously been living with her.

13. The judge finds that it was the sponsor’s choice to leave the children and come here for his second marriage (paragraph 57). By the very definition of the rules, however, the parent maintaining sole responsibility will have left the child(ren) and come to the UK. I do not see why this has any relevance.

14. Contrary to what the judge found at paragraph 57 about the sponsor having no involvement in the appellants’ education, his evidence as set out in his witness statement shows he has. The judge appears to have overlooked this. She has also disregarded the written statement from the sponsor’s brother, contained in the bundle before her.

15. These are all errors of law and impact upon the outcome of the appeal. As such the sole responsibility findings must be set aside.

16. With respect to maintenance, the judge plainly erred in failing to take account of the sponsor’s additional rental income in calculating the monies available to him each month. Whilst this income may only have commenced in April 2012, it was three months prior to the hearing and she have been factored into the equation.

17. At the hearing before me, some calculations were undertaken to work out the sponsor’s income from his self and rent. It appeared from those figures that the sponsor met the required threshold but having examined the papers closely, I consider that the evidence of his income is not all that clear. The maintenance requirement will therefore also have to be properly considered and a fresh finding shall need to be made. It would be helpful if the sponsor was to provide clear evidence of his monthly income and expenditure. I also note that the tenancy agreement expired in April 2012, prior to the date of decision. The sponsor is on notice that accommodation will therefore also be an issue that needs to be considered.

18. The live issues shall therefore be: sole responsibility, maintenance and accommodation.

Decision

19. The First-tier Tribunal Judge made errors of law such that the determination is set aside in its entirety except for being a record of proceedings. The matter is remitted to the First-tier Tribunal for a fresh decision to be made on all issues identified above.

Signed:

Dr R Kekić
Judge of the Upper Tribunal

21 June 2013