Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/18266/2012

THE IMMIGRATION ACTS

Heard at Glasgow
Determination Promulgated
On 16 December 2016
On 20 January 2017

Before

MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE DEANS

Between

MR HAMDI IBRAHIM SULEMAN
Appellant
and

ENTRY CLEARANCE OFFICER - CAIRO
Respondent

Representation:

For the Appellant: Mr A Devlin, Advocate, instructed by Neil Barnes, Solicitors
For the Respondent: Mrs M O'Brien, Senior Home Office Presenting Officer

DECISION AND REASONS

1) This appeal was heard in the First-tier Tribunal before Judge Morrow in April 2013 and dismissed. The appeal was then heard in the Upper Tribunal before Upper Tribunal Judge Macleman. The decision of the First-tier Tribunal was set aside but the appeal was again dismissed.

2) Thereafter there was an appeal to the Inner House of the Court of Session. In an interlocutor dated 25 November 2014 the Inner House allowed the appeal of consent and remitted it to the Upper Tribunal. Regrettably a considerable period elapsed thereafter when neither party thought to notify the Upper Tribunal that the appeal had been remitted. Hence the appeal comes before us only now.

3) The interlocutor of the Inner House does not give reasons for the remittal but we were provided by Mr Devlin with a draft of a Joint Minute, from which it appears that the parties were not satisfied that the Judge of the Upper Tribunal had had regard to all of the relevant considerations in making a decision on the right to family life.

4) The appellant was born on 20 December 1985 and is a national of Eritrea. He applied for entry clearance as a dependant relative of a person with limited leave to remain as a refugee. The application was refused on 27 August 2012.

5) The sponsor is Kamal Suleman. The appellant is his brother. At the time of the hearing before the Upper Tribunal the appellant was around 15 years old. He had left Eritrea without permission. The appellant has cerebral palsy, as a result of which he is said to require constant care and attention and to be unable to look after himself.

6) The sponsor left his wife and children in Eritrea when he first came to the UK. Once the sponsor had refugee status his wife and children joined him here. When his wife and children left Eritrea to travel to Sudan they took the appellant with them. The appellant's mother was dead and his father was in prison. Once the sponsor's wife left Sudan the appellant was looked after by a woman whom the sponsor's wife chose to care for him. It is said that money is sent to the carer by regular money transfers for the care of the sponsor.

7) The Judge of the Upper Tribunal accepted that there was family life between the sponsor and the appellant but found that the interference with his family life was not such as to require the admission of the appellant under Article 8.

8) At the hearing before us Mr Devlin, for the appellant, said that he was conscious of the passage of time since the hearing was last before the Upper Tribunal. The appellant was now aged 21. The sponsor's wife had now returned to Sudan to look after the appellant as his condition was giving cause for concern.

9) We observed that there was no evidence before us as to the appellant's circumstances between the hearing before the Upper Tribunal in 2013 and the present. On this basis it appeared that a new application for entry clearance would be required. The appeal could not be determined in favour of the appellant on the basis of evidence which was more than three years old. There was a lack of evidence as to the appellant's current circumstances.

10) At the hearing we indicated to the parties that owing to the lack of evidence of the appellant's current circumstances we would make a decision dismissing the appeal. Mr Devlin very properly in the circumstances did not suggest that the outcome should be different. It might, however, be appropriate for the appellant to make a new application having regard to his family circumstances and his care needs.

Conclusion

11) The appeal is dismissed.

Anonymity

12) We have not been asked to make an order for anonymity and we see no reason of substance for doing so.

Signed Date

Upper Tribunal Judge Deans