Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005216

First-tier Tribunal No: HU/62068/2023
LH/03819/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
3 March 2025

Before

UPPER TRIBUNAL JUDGE RASTOGI
DEPUTY UPPER TRIBUNAL JUDGE DAYKIN

Between

DAHIR ABDI HAYAT
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss Imamovic (Counsel, instructed by BRYS Immigration Consultants)
For the Respondent: Miss Newton (Senior Home Office Presenting Officer)

Heard at Field House on 5 February 2025

DECISION AND REASONS
1. This is an appeal brought, with permission, by the appellant against a decision of First-tier Tribunal Judge Suffield-Thompson (“the Judge”) dated 25 September 2024, in which the appellant’s human rights appeal was dismissed.
2. In summary, the appellant is a citizen of Somalia and applied to enter the United Kingdom to join his sponsor father, Mr Abdi Abdullah Ahmed. The sponsor has limited leave to remain as an EEA family member as a dependent of his older son, Mr Ismail Abdi Hayat. Although the appellant’s application was made pursuant to the provisions of Appendix FM of the Immigration Rules, the respondent considered the application by reference to paragraph 297 of the Rules and refused the application on 2 August 2023. The respondent did not accept that appellant and sponsor were related as claimed, that the appellant’s mother is deceased, that the sponsor was settled in the UK or that there are exceptional circumstances based on the appellant’s ill-health.
3. The Judge summarised the respondent’s refusal as being that it was not accepted that the sponsor had sole responsibility or that the appellant’s exclusion was undesirable (paragraph 24).1
4. At the hearing before the judge, the issue of the relationship between the appellant and sponsor was accepted in light of DNA evidence but it was still not accepted that the appellant’s mother is deceased (paragraph 24).
5. The Judge recorded that the advocates were invited to outline the pertinent issues and raise any preliminary matters (paragraph 5). At paragraph 8 the judge identified the issues, as agreed by the parties, as:
“(a) Does the Appellant meet the Rules under para 297 as the Sponsor has sole Responsibly or there are serious and compelling considerations that make exclusion undesirable.
(b) Is refusing him EC is a breach of his Article 8 family life rights? or is it unduly harsh to do so?“
6. The Judge heard evidence from the sponsor father, the appellant’s older brother and a family friend but stated at the outset of the findings that they were not credible or honest witnesses (at paragraph 22).
7. The sponsor father had previously appealed the initial refusal of his own immigration application, and his appeal was allowed by First-Tier Judge Anthony on 24 February 2022. That decision was before the Judge in the current appeal. However, the Judge concluded that was not a decision that “relates in any way to the Appellant and the facts are totally different…I am certainly not bound by Judge Anthony’s credibility findings as he heard and read different evidence that related to a whole different appeal and a whole different Appellant” (paragraph 23)
8. Thereafter the Judge rejected most of the factual basis of the appellant’s claim and dismissed the appeal on human rights grounds.
Summary of grounds
9. The appellant challenged the decision of the First-Tier Tribunal on 9 grounds, which are summarised as follows:
(1) Failure to consider Appendix FM as relied upon by the appellant at the hearing
(2) Failure to treat the determination of FTTJ Anthony as the starting point in accordance with Deevaseelan v Secretary of State for the Home Department [2002] UKAIT 702
(3) Factual error
(4) Overstepped in relation to the medical evidence and the sponsor’s ability to work
(5) Failure to give reasons
(6) – (7) Flawed assessment of witness evidence
(8) Procedural fairness – issues not raised
(9) Errors in article 8 assessment.
10. There was no rule 24 response, but Miss Newton confirmed that the respondent resisted the appeal. We heard submissions on behalf of both parties in respect of all grounds of appeal. At the end of the hearing we reserved our decision.
Conclusions
11. For the purposes of our decision, we are satisfied there is a material error of law identified in grounds 1, 2 and 9 for the reasons explained below. These errors undermine the entire decision and as such it must be set aside in its entirety and reconsidered.
Grounds 1 and 9
12. The appellant contends that it was made clear at the hearing that he relied upon Appendix FM (specifically GEN.3.2) and that there was a previous adjourned hearing where it was clarified that he did not rely upon paragraph 297.
13. Helpfully, the appellant made an application to rely on further evidence pursuant to rule 15 (2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008, which we admitted. The further evidence included counsel’s note of the previously adjourned hearing before Judge Beg, recording the reason for adjournment and directions for the respondent to review the matter by reference to Appendix FM. The evidence also included counsel’s note in relation to the hearing before the Judge, which recorded that counsel clarified that Appendix FM and the wider Article 8 context were relied upon and not paragraph 297.
14. Miss Newton accepted the evidence contained within Miss Imamovic’s note and that there is no reference to these clarifications in the Judge’s decision and that the Judge did not consider Appendix FM or GEN.3.2. However, Miss Newton submitted that it is immaterial because the rules could not be met in any event and the Judge fully considered article 8.
15. We are satisfied that by the time of the hearing before the Judge the issues were in fact Appendix FM and GEN.3.2 and not paragraph 297. Therefore, the Judge failed to correctly identify the issues under the Rules at paragraph 5(a) above. In failing to identify the issues the Judge applied the incorrect part of the Rules in their analysis.
16. We conclude that this failure amounts to an error of law (Ground 1).
17. Turning to the article 8 assessment (Ground 9), we are satisfied it contains errors of fact, contradictions and misstatements of the correct legal test. The Judge accepts that the appellant has a family and private life in the UK and that “removing” the appellant from the UK would interfere with his family life (paragraph 73). However, the appellant is not in the UK as this is an entry clearance appeal so reference to private life is misplaced. Nevertheless, despite the finding of an extant family life the Judge concluded that there was no evidence of regular contact or emotional support between the appellant and his father (paragraph 80) or his brother (paragraph 82), which is an inconsistent finding. Finally, the Judge repeatedly misstates the threshold test as being “unduly harsh” (paragraph 8 and 83), which is applicable in deportation cases and cites a passage attributed to Sedley LJ from an unidentified authority, which appears to relate to a different test (paragraph 86).
18. For these reasons, we are satisfied that Ground 9 discloses errors of law in the Judge’s assessment of Article 8.
19. As to whether or not the errors revealed by Grounds 1 and 9 are material, we do not accept that the outcome of the appeal would be the same when there has been no assessment under the correct legal provisions at all. As such, we conclude that Grounds 1 and 9 identify material errors of law.
Ground 2
20. The appellant submits that the Judge has gone behind the findings of the previous judge. The appellant accepts that the decision of First-tier Tribunal Judge Anthony concerns a different appellant but since the decision relates to the sponsor father and makes clear findings of fact particularly regarding his health and whether he was working, which the Judge in this case rejects, these findings are material and should have been treated as the starting point. The same is said about the credibility of the sponsor and the appellant’s brother and the factual background more generally.
21. Miss Newton submits that the Judge gave sustainable reasons for finding the witnesses not credible and for not considering the findings of previous determination as relevant.
22. The Judge is correct to state that they are not bound by a previous determination (paragraph 23). As an assessment of the matters that were before the previous Judge they stand as unquestioned and should form the starting point (Deevaseelan, paragraph 37). However, the Judge in this case has completely disregarded the previous findings because it was a different case and none of the evidence in that appeal was produced in this appeal. The failure to treat Judge Anthony’s findings of fact and findings as to credibility of the witnesses generally as the starting point on relevant matters infects the entire assessment of the evidence and is a material error of law. For example, the Judge expressly rejects the proposition that the sponsor has epilepsy and that he went to Qatar for treatment (paragraph 54) because of a lack of evidence. This is in direct contradiction to the findings of Judge Anthony (paragraphs 14 and 15) who, on the basis of the medical evidence before them, accepted the sponsor’s medical conditions and move to Qatar for treatment. In those circumstances it was a material error of law for the Judge to go behind the findings of the previous judge.
Grounds 3 – 8
23. The impact of the errors identified in grounds 1, 2 and 9 are sufficient to render the entire decision unsafe. There is no need to make specific conclusions on the remaining grounds.
24. The parties agreed that if we concluded there was an error of law we should remit the appeal to the First-tier Tribunal with no findings preserved.

Notice of Decision
25. The decision of the First-tier Tribunal involved the making of material errors of law and is set aside with no preserved findings.
26. The appeal will be remitted back to the First-tier Tribunal for remaking to be heard by a different judge.
E Daykin

Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 February 2025