Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001606

First-tier Tribunal No: HU/00031/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 19 March 2025

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR
DEPUTY UPPER TRIBUNAL JUDGE STAMP

Between

BENJAMIN ANKOBIAH
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Ms J Heybroek, Counsel, instructed by Irving & Co Solicitors
For the respondent: Ms S Cunha, Senior Presenting Officer

Heard at Field House on 5 March 2025

DECISION AND REASONS
Introduction
1. The core issue in this appeal is whether the appellant’s removal to Ghana in consequence of the respondent’s refusal of his human rights claim would violate his rights under Article 8 ECHR.

2. Based on the respondent’s concession at the hearing, we conclude that the appellant’s removal would violate Article 8, with specific reference to the family life he enjoys with his baby daughter and the exception to the public interest considerations under both EX.1 of Appendix FM to the Immigration Rules and section 117B(6) of the Nationality, Immigration and Asylum Act 2002, as amended.

Background
3. The appellant is a citizen of Ghana, born in 1994, who arrived in the United Kingdom in 2015 as a visitor. He then made at least one unsuccessful human rights claim. In the latter part of 2017, he started a relationship with Ms MA, a British citizen. That relationship developed and the couple were married by proxy in October 2019. It is common ground that the relationship remains genuine and subsisting.

4. In 2020, the appellant made a further human rights claim. This was refused by the respondent on 3 October 2020. The appellant appealed to the First-tier Tribunal. His appeal was initially dismissed, but that decision was set aside by the Upper Tribunal in November 2022. The appeal was remitted to the First-tier Tribunal and re-heard by another First-tier Tribunal Judge. That judge dismissed the appeal by a decision dated 14 March 2024. That decision too was set aside by the Upper Tribunal in November 2024 on the basis that the respondent accepted the judge had materially erred in law in relation to a relevant child. The appeal was retained in the Upper Tribunal and a resumed hearing listed at which all issues were live.

5. Through this protracted route, the appeal came before us.

The “new matter”: birth of the appellant’s daughter
6. At the error of law hearing in November 2024, the appellant raised the fact that MA was pregnant. She duly gave birth to the couple’s daughter in February 2025. This fact was communicated to the respondent with a request that consent be given for the Upper Tribunal to consider the matter at the resumed hearing. There was no response from the respondent prior to the hearing.

7. We dealt with the matter as a preliminary issue.

8. Ms Heybroek confirmed that the birth of the couple’s daughter did constitute a “new matter”. That was plainly correct.

9. Ms Cunha confirmed that the respondent did give consent for the matter to be considered by us.

Other procedural matters
10. Neither party suggested that, in light of the changed circumstances and all other considerations, the appeal should be remitted to the First-tier Tribunal once again. Given the long history of this case and our ability to consider all relevant evidence and make whatever findings were necessary, it was clearly appropriate to proceed with the resumed hearing.

11. We are bound to note the rather unsatisfactory state of the appellant’s consolidated bundle. It was both late and incomplete. For example, it did not include the November 2024 error of law decision. We remind representatives of the importance of complying with directions in a timely manner.

The evidence
12. The appellant’s consolidated bundle runs to 206 pages. We also have an appeal bundle from the respondent.

13. The appellant and MA attended the hearing and gave oral evidence. The evidence was recorded and a full note taken by us.

The respondent’s concession at the hearing
14. Ms Cunha accepted that the couple’s child was a British citizen (by birth) and therefore a qualifying child for the purposes of EX.1(a) of Appendix FM and section 117B(6) of the 2002 Act. She accepted that the appellant had a genuine and subsisting relationship with his daughter.

15. Her position on those matters was entirely justified in light of the evidence and the relevant legal framework.

16. Ms Cunha conceded that it would not be reasonable for the couple’s child to leave the United Kingdom. This concession was based on: (a) the child’s British nationality; (b) the child’s primary (indeed, sole) residence was the United Kingdom; (c) the fact that the child had not yet even completed a full set of immunisations; (d) the fact that the child and MA continued to be under medical care in this country (the former for difficulties with digestion and the latter for palpitations and post-natal matters).

17. Again, Ms Cunha’s position was fully justified on the evidence before us. In addition, it was in no way inconsistent with the authorities on the reasonableness question: see, for example, NA and Others (Bangladesh) v SSHD [2021] EWCA Civ 953.

18. There was no proper basis for us to reject the concession.

Conclusion in light of the respondent’s concession
19. For the purposes of this appeal, the concession is determinative of the Article 8 claim, whether it is viewed within or outside of the Rules. The appellant succeeds with reference to EX.1(a) of Appendix FM and/or section 117B(6) of the 2002 Act.

Other substantive matters
20. Until the advent of the couple’s daughter, much of the appellant’s case had concerned P. P is the younger sister of MA. She has suffered from mental health problems over the course of time and, by way of family arrangement (not as a result of a court order as far as we can tell), MA has acted as her guardian since approximately 2017. P’s mother has spent much of her time in Ghana (and remains there to date) and the father have played no emotional part in her life. P had been living with MA and the appellant until recently when she moved out and went to live with her aunt. P is currently undertaking A-levels at college. It appears as though she is financially supported by her father. MA’s evidence is that she maintains a strong protective relationship with P, notwithstanding the change in circumstances. The appellant maintains that he too has a strong relationship with P.

21. In light of the respondent’s concession in relation to the appellant’s child, it is not necessary for us to deal in any depth with the aspects of his Article 8 claim relating to P. Put shortly, we would accept that MA has acted as P’s guardian for some years, albeit not in a legal sense. We would accept that, as MA’s husband, the appellant would have developed a good relationship with P and would probably have contributed to her support in non-financial ways. However, P’s attainment of majority in combination with her moving out of the home, being able to undertake studies, and the financial support provided by her father, demonstrate that the relationship between the appellant and P has materially changed. Assuming that that relationship forms part of the appellant’s overall private life, it would not by itself or in combination with other aspects of private life, render his removal from the United Kingdom disproportionate.

Anonymity
22. An anonymity direction was made in the First-tier Tribunal without reasons being provided the doing so. We might assume that this was because of P being a minor at the time. Even so, the presence of a child in an appeal is not usually of itself sufficient to justify making an anonymity direction. Nor is a presence of mental health difficulties.

23. P is of course no longer a child. We have not named her in our decision and she is not directly related to the appellant. In the circumstances, we can see no risk of serious harm to P if the appellant is identified.

24. Given the importance of open justice, there is no justification for maintaining the anonymity direction and we discharge it.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law and that decision has been set aside.

The decision in this appeal is re-made and the appeal is allowed on Article 8 ECHR grounds with specific reference to EX.1(a) of Appendix FM to the Immigration Rules and/or section 117B(6) of the Nationality, Immigration and Asylum Act 2002, as amended.

H Norton-Taylor
Judge of the Upper Tribunal
Immigration and Asylum Chamber
Dated: 10 March 2025
ANNEX: THE ERROR OF LAW DECISION

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001606

First-tier Tribunal No: HU/00031/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
20 November 2024

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

BGA
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms Heybroek of counsel
For the Respondent: Mr Wain, a Home Office Presenting Officer

Heard at Field House on 30 August 2024

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. This is an appeal against the decision of First-tier Tribunal Judge S J Clarke sitting at Taylor House on 21 February 2024, whose decision was promulgated on 14 March 2024.

2. The appellant is a citizen of Ghana, who following his arrival into the UK, began a relationship with his present wife, Megan Adjei, who is also of Ghanian background but is now a British citizen. They began to cohabit in April 2018. Megan has a child by an earlier relationship P, who was born on 27 July 2006 and is a British citizen. There was an earlier application for leave to remain as her married partner on 21 November 2021. The application was initially unsuccessful, but on an appeal before Upper Tribunal Judge Blundell the matter was remitted to the First-tier Tribunal and came before Judge Clarke for the hearing. Judge Clarke dismissed the appeal following a hearing which was conducted in the absence of the respondent.

3. On an application by the appellant for permission to appeal Judge Clarke’s decision, Judge A Grimes decided to give permission on two principal bases. First, the judge had arguably erred in his application of Section 117B(6) of the Nationality Immigration and Asylum Act 2002 to the facts of the case and secondly that the child’s nationality was challenged by Judge Clarke when it was not effectively in issue. Therefore, it was submitted, the judge had failed to adequately consider the evidence of the child’s nationality at the hearing. Judge Grimes gave permission to appeal on the basis that this was an arguable error of law.

4. The case came before me with both sides represented. It was indicated that it had been agreed position that the nationality of the child had not been adequately considered by the judge. Therefore, Mr Wain considered that the decision had not been properly open to the judge and he did not seek to uphold the decision of the First-tier Tribunal. It was submitted on behalf of the appellant that the matter should be remitted for a de novo hearing in the First-tier Tribunal.

5. As I indicated during the course of oral submissions, I regarded the issue to be decided to be a relatively narrow one, albeit it an important one for the parties, especially for the appellant and his wife. I regarded it as one that could be dealt with more quickly and efficiently if it were retained in the Upper Tribunal. Accordingly, suitable directions were made for a further hearing in the UT.

6. I was also informed by Ms Heybroek, who appeared both in the Tribunal below and in this Tribunal, that the appellant’s wife is currently pregnant, although that fact had not necessarily previously been relayed to the respondent. She suggested that this was a new matter which should be considered by the respondent. Strictly, this should be the subject of a fresh application, however.

7. Accordingly, in the light of the agreed position between the parties, who are represented by experienced representatives, the appellant’s appeal will be allowed. The decision of the First-tier Tribunal is set aside on the basis that it does contain a material error of law. A further hearing is to take place in the Upper Tribunal. The directions accompanying this decision will apply to that hearing.

30 August 2024

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber