Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case Nos: UI-2024-004968
UI-2024-004969

First-tier Tribunal Nos: HU/60336/2023
HU/60333/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 20 March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE I LEWIS

Between

O.A.
A.A.
(ANONYMITY ORDERs MADE)
Appellants
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellants: Ms N Quadi of Counsel instructed by Ramfel
For the Respondent: Ms A Everett, Senior Home Office Presenting Officer

Heard at Field House on 15 January 2025

Order Regarding Anonymity

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

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

DECISION AND REASONS
Introduction
1. These are linked appeals against a combined Decision of First Tier Tribunal Judge Rodger dated 10 June 2024 dismissing each of the Appellants’ appeal against decisions of the Respondent dated 1 August 2023 refusing human rights claims.
2. For the reasons explained below, I am satisfied – albeit on a narrow basis – that there is a material error of law that requires the combined Decision of the First-tier Tribunal to be set aside. In the event, after discussion, Ms Everett realistically offered no meaningful opposition to this particular basis of the Appellants’ challenge, and it was common ground between the parties that the consequence was that the decisions in the appeals require to be remade before the First-tier Tribunal with all issues at large.
3. In such circumstances I do not propose to rehearse the entirety of the factual background, or address the entirety of the Grounds of Appeal before the Upper Tribunal. What follows below by way of introduction seeks to emphasise the issues in respect of the Appellant’s circumstances in Ethiopia: I have done this in order to establish the framework for the closing observations in respect of matters that may require clarification when the appeals are reconsidered de novo by the First-tier Tribunal.
4. The Appellants are citizens of Sudan born on 16 July 2006 and 20 March 2009. On 12 May 2023, when they were 16 and 14 years old, they made applications to join their brother I.A. (date of birth 16 October 2000) (‘the Sponsor’) in the UK. The Sponsor has been recognised as a refugee in the UK.
5. In their application forms it was indicated that the Appellants were living in Ethiopia at an address in Addis Ababa. It was said that the property was rented and that they had been living there for 5 months.
6. Some of the statements and pleadings on file refer to the Appellants being registered as refugees with the UNHCR in Ethiopia. The UNHCR ‘Proof of Registration’ document that was produced in support of the application refers to the Appellants’ status as ‘Asylum Seeker’. There is nothing to indicate that they have been recognised as refugees. In the event, for present purposes nothing seemingly turns on the distinction between being an asylum seeker and a recognised refugee.
7. The applications were refused with reference to Appendix CNP of the Immigration Rules for reasons set out in respective decision letters dated 1 August 2023.
8. The Respondent was not satisfied that it had been shown that the Sponsor’s circumstances were such that the accommodation and maintenance requirements were met, or that there were suitable arrangements for the Appellants’ care and accommodation in the UK.
9. Nor was the Respondent satisfied it that there were serious and compelling family or other considerations which would make undesirable the exclusion of either of the Appellants from the UK. In this context each of the decision letters states:
“You have stated what that your circumstances in Ethiopia are that you are living with your sibling. You have provided an explanation that you and your brother are living independently with financial support from your brother in the UK. I note that your TB certificate is signed by “Guardian” but you have offered no explanation as to whom this guardian is and why they would not be able to continue to be your guardian.
There is also to be taken into consideration the fact that you have both parents and three other adult siblings still in Sudan, and whilst you state their whereabouts are unknown it is also mentioned in the statement from your sponsor that he was able to get in touch with your half-sister by telephone and that she lives with your father. Therefore I must consider the likelihood that you would be able to be in touch with your father.”
10. The decision-maker did not otherwise accept that there were circumstances that justified the grant of entry clearance by reference to Article 8, notwithstanding the failure to meet the requirements of the Rules.
11. The Appellants appealed to the IAC.
12. Before the IAC, in the usual way, the Appellants filed an appeal bundle and a Skeleton Argument. In response the Respondent filed a Respondent’s Review dated 29 January 2024.
13. In respect of ‘serious and compelling family or other considerations’ the Respondent’s Review stated the following at paragraphs 6 (v)-(vii):
“(v) Furthermore, the R is not satisfied that there are serious and compelling family or other considerations which make exclusion of the applicant undesirable in line with paragraph CNP 3.2(c). The A’s have provided a social worker report demonstrating their previous and current situation [RB/pgs.114-135]. The A’s have stated that they fled from Al-Faw Gedaref forces in November 2022 to Ethiopia and registered as refugees with the UNHCR [AB/pg.144/paras 8-12]. The sponsor has stated that the A’s are financially and emotionally supported and have accommodation and food provided for the by the sponsor [AB/pg.14/para 12]. Insufficient evidence has been provided to suggest that the support and care provided to the A’s in Ethiopia as registered refugees does not meet their needs and there is nothing to suggest that this financial and emotional support provided by the sponsor cannot continue.
(vi) The A’s provided a TB certificate signed by a Guardian; subsequent statements revealed that the individual was Mr Adel a random person the A’s see outside [AB/pg.10/Para 5-7]. However, there is insufficient evidence provided by the A’s regarding Mr Adel’s identity and involvement in the A’s day-to-day lives. Additionally, the A’s have claimed that they feel unsafe in their current circumstances [AB/pg.10/para 4], however, little evidence has been provided to suggest that the A’s circumstances are dangerous, and their needs are not being met. Therefore, the R is satisfied that there is insufficient evidence to suggest that the A’s circumstances are serious and compelling.
(vii) Furthermore, there is a lack of evidence demonstrating a change in the A’s current circumstances, or a decline in the As’ condition as a result of their circumstances, suggesting that the A’s are not in any imminent danger. Therefore, the R is satisfied that A's can remain in their current situation.”
14. Similarly at paragraph 7, in addressing the substance of paragraph 3.3 of Appendix CNP: the Review submitted “Insufficient evidence has been provided by the As to suggest that they are not in contact with any family members and that since fleeing to Ethiopia they have had not contact with their father” (paragraph 7(ii)). Paragraphs 7(iii)-(v) make further submissions arguing that it is not been shown that the Appellants are without the assistance of a family member or guardian in Ethiopia, or are able to access support through either their mother or father.
15. The Appellants’ appeals were dismissed for reasons set out in the combined decision of First-tier Tribunal Judge Rodger.
Error of Law
16. For the main part the Decision of the First-tier Tribunal reads as a careful and comprehensive consideration of the issues and evidence in the appeal. Similarly, for the main part the findings are adequately clear and adequately reasoned.
17. However, I am satisfied that the matter raised at paragraph 41(c) of the Grounds establishes a material procedural unfairness amounting to a material error of law that undermines the overall evaluation of the Appellants’ circumstances.
18. Having summarised the background to the appeal (Decision at paragraphs 1-6), the hearing (paragraphs 7-8), and ‘The Law’ (paragraphs 9-10), the Judge set out her ‘Consideration of the evidence and findings’ from paragraph 11. At paragraph 13 it is stated “…I was not able to find that the sponsor is a credible or persuasive witness”. The reasons for this conclusion then followed, starting at paragraph 14 which is in these terms:
“First, it is his evidence that the appellants have no family members in Ethiopia with them and that he sends money to the appellants for their rent and upkeep. When I asked him about the money remittance at p356 of the stitched bundle, which was a transfer of £200 to a [E.B.Y.] on 11/01/23, and asked him who that person was, I was not persuaded by the sponsor’s evidence. He told the tribunal that this person was a taxi driver who met the appellants when they first arrived in Addis Ababa. It was his evidence that he had sent the £200 to [E.B.Y.], a taxi driver in Ethiopia, as this was money that he was sending to his brothers. The sponsor said that the appellants were not able to collect money transfers without any identification and this random stranger offered to help by having money transferred to his name to give to the appellants. When the sponsor was asked further about this by Ms Kerr [the HOPO], he said that the appellants had had some money with them when they arrived in Addis Ababa and that they had taken a taxi to get to some accommodation and that is when the appellants enquired about the rent and asked the sponsor to send them some more. The sponsor said that the appellants had asked the stranger taxi driver to take them to an area with cheap accommodation and that is when the taxi driver took them to the area that they are renting in and on speaking to them in Arabic he had offered to help. Overall, I was not persuaded that the tribunal was being provided with truthful evidence about the identity of the person [E.B.Y.]. His phone number is [********9230] and there are no call logs within the bundle showing that the sponsor had spoken to the person that he was about to transfer £200 to or that there were calls with the appellants on 11/01/23 to make such request of a transfer to the taxi driver. I note that there is evidence of call logs within the bundle, including p286-292, and that no call log for 11/01/23 has been provided to support that there were conversations regarding this transfer. The call logs do however show that there is regular contact between the sponsor and the 1st appellant’s mobile number but that there is also another Ethiopian number that has been dialled within the same minute as [A.A]’s number on 03/01/23 and was also dialled on 02/01/23. The sponsor has therefore been in contact with others in Ethiopia at the same time as speaking with the appellants and I am not satisfied that it is the claimed taxi driver as is not the same number as that of the claimed taxi driver who was sent the transfer on 11/01/23 and was some 8 or 9 days before the transfer on 11/01/23. Overall, I am not persuaded that the appellants are in Ethiopia without a guardian or family member taking care of them as claimed.”
19. In substance the Judge concludes that because the call log does not show the number of EBY, no call was made as claimed. Further, the Judge identifies a telephone number in Ethiopia showing on the log of calls from the Sponsor that does not seemingly relate to the telephone held by the Appellant AA, and cannot be explained as a call to the claimed taxi driver EBY. This informs the Judge’s conclusion that she is not persuaded that the Appellants are in Ethiopian without a guardian or family member.
20. It is to be noted that the call logs were submitted with the applications, and were provided in order to demonstrate regular contact between the Sponsor and the Appellants (only one of whom has a telephone). The call logs were incorporated in the Respondent’s bundle. The Respondent raised no issue in respect of these call logs in either the decision letters or the Respondent’s review. Nor was the Sponsor cross-examined on the call logs or asked any questions by the Judge.
21. As the Grounds of Appeal identify, and with reference to the evidence that the Sponsor now seeks to adduce, had the issue been raised during either the application or appeal process prior to the Decision of the First-tier Tribunal, the Sponsor would have been in a position to offer a clarification that would potentially rebut the Judge’s concerns. Specifically: the call log provided was only a log of calls to a AA’s telephone and was not a complete log of all calls made; as such the log would not show any call made to EBY’s telephone; evidence of that call is now available; the log of calls to AA’s telephone shows two different numbers because AA had two SIM cards.
22. I am satisfied that the failure to raise during the hearing the issues relied upon at paragraph 14 amounted to a procedural unfairness. The Sponsor was not given an opportunity to address the concerns identified by the Judge. This procedural unfairness was material because the Sponsor would have been in a position to offer an explanation - and with due notice to provided further supporting evidence – that would have required due and proper consideration by the Judge.
23. Although it is to be acknowledged that the Judge offers further reasons for rejecting the credibility of the Sponsor, the materiality of the error identified is plain – not least because the Judge refers to this as the “First” aspect of the reasoning, but also because of the length of the analysis of this point compared to the relatively short analysis of other points at paragraph 15 and 16.
24. As indicated above, upon discussion of this issue, Ms Everett essentially acknowledged that there was significant substance to the point and did not offer any further resistance to the Appellants’ challenge. It was common ground that the consequence was that the Decision of the First-tier Tribunal required to be set aside and that the appropriate forum for remaking the decisions in the appeal was before the First-tier Tribunal.
25. I have also indicated above that I consider there are aspects of the Appellants’ chronological narrative that will likely require clarification. As I understand it from the evidence, the Appellants appear to have entered Ethiopia having fled from Al-Matammah in Sudan in November 2022. By 11 January 2023 they were seemingly in Addis Ababa, because that is the date of the supposed transfer of funds to EBY. Consistent with this is the indication on the face of the application forms dated 12 May 2023 that they had been in their present accommodation for 5 months. However, it is unclear how this chronology is to be reconciled with the apparent fact of their registration with the UNHCR on 2 February 2023. The UNHCR registration document is seemingly issued through the Sherkole Camp - which is close to the border with Sudan and approximately 400 miles from Addis Ababa.
26. I do not propose to make any specific directions in this regard: directions for the further management of the appeal will now essentially be a matter for the Tribunal. However I record here that I discussed this matter at the hearing and to that extent through Counsel the Appellants and the Sponsor are on notice of the potential need to clarify the Appellants’ movements within Ethiopia (mindful of the Respondent’s position that they have access to assistance and support from friends or relatives in Ethiopia).

Notice of Decisions
27. The combined decision of the First-tier Tribunal in these linked appeals contains a material error of law, and the Decision in each appeal is set aside.
28. The decisions in the appeals are to be remade before the First-tier Tribunal by any Judge other than First-tier Tribunal Judge Rodger, with all issues at large.

I. Lewis
Deputy Judge of the Upper Tribunal
(Immigration and Asylum Chamber)
19 March 2025