Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number PA/00624/2016

THE IMMIGRATION ACTS

Heard at Centre City Tower
Decision and Reasons Promulgated
On 8th March 2017
On 19th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE PARKES

Between

A C
(ANONYMITY DIRECTION MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr S Vokes (Counsel, instructed by Kausers Solicitors)
For the Respondent: Mr D Mills (Home Office Presenting Officer)

DETERMINATION AND REASONS

1. The Appellant's asylum application was refused by the Secretary of State. The appeal was heard by First-tier Tribunal Judge Pacey on the 24th of August 2016 at Birmingham. The appeal was dismissed on both asylum and human rights grounds in a decision promulgated on the 5th of September 2016. There is no challenge to the dismissal of the asylum claim.

2. The Judge considered the human rights aspect of the claim starting at paragraph 51 and in the following paragraphs the Judge set out the Appellant's recent family history and it is clear that she attached very little weight to the claimed relationship. The Judge rejected the claim that the Appellant was in a genuine and subsisting parental relationship as she indicated in paragraph 60 as it is clearly stated that even if she had found that there was such a relationship he would still have failed. The Judge went on to find that he could reasonably return to Gambia and make an application for entry clearance.

3. The grounds of application to the First-tier Tribunal for permission rely on the Appellant being the children’s father and that it would not be reasonable to expect them to go to Gambia. The finding that the Appellant had not made a valid human rights claim was erroneous. It was further submitted that the best interests of the children had not been taken into account. The Judge was aware that the Sponsor was a full-time student and that the Appellant cared for the children. Article 8 outside the rules should have been considered. Permission was granted for the reasons given in the decision of Judge Holmes of the 7th of October 2016.

4. At the hearing before the Upper Tribunal both parties made representations which are recorded in the Record of Proceedings. For the Appellant it was submitted that there was no finding whether family life existed between the Appellant and his children and given the analysis that was required there was a significant failure.

5. For the Home Office it was submitted that EX.1 could apply and there was a potential mistake. The children were not British and had not been here for 7 years. The only way that the appeals could succeed would be under article 8 outside the rules. The Appellant's wife had obtained asylum without mentioning the Appellant which spoke to the credibility of both of them and if considered as a group then matters may have been different.

6. Paragraph 60 of the decision is as follows “The appeal must therefore fail under the parent route even if I were to find that the Appellant has a genuine and subsisting parental relationship with the children.” That followed an unchallenged finding in relation to the Appellant's relation with his wife but no analysis of his involvement with his children and no assessment of the extent to which he was engaged with their upbringing.

7. The Judge’s findings on the question of family life with the children are ambiguous, there was evidence of his involvement with their upbringing for example from their school and with it being accepted that he is their biological father, which implies parental responsibility an assessment of the evidence overall was required. The Judge did not mention the best interests of the children and there is no consideration of that aspect at any point of the decision. Given the mandatory nature of section 55 of the 2009 Act this was not an issue that should, in this case at best, be a matter of oblique inference.

8. On remittal the issues are limited to the Appellant's position under the Immigration Rules and in relation to the human rights aspect of the claim. There being no challenge to findings made in relation to the asylum claim these remain undisturbed by this decision and will not form any part of the re-hearing process.

9. As the Home Office observed in submissions the overall situation is rather complicated by the behaviour of the adults in this case and it could be that if the Appellant and his family are considered together matters could be different.

10. If the Appellant's case is that he is genuinely involved in the family in genuine and subsisting relationships that calls into question the basis of the females’ asylum claim as there would be male protection available in Gambia. It is important to disentangle the different aspects of the case as the running of apparently mutually inconsistent cases must clearly have a bearing on credibility of the adults and the circumstances that they are in here in the UK and would/could face in Gambia.

CONCLUSIONS

The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

I set aside the decision and remit the decision for re-hearing in the First-tier Tribunal, not to be heard by Judge Pacey.

Anonymity

The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.)

Fee Award

I make no fee award which will be a matter for the First-tier Tribunal at the conclusion of the re-hearing.

Signed:

Deputy Judge of the Upper Tribunal (IAC) Parkes

Dated: 5th April 2017