Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005355
UI-2024-005356
UI-2024-005357

First-tier Tribunal No:
HU/63643/2023, LH/04785/2024
HU/63646/2023 LH/04786/2024
HU/63644/2023 LH/04787/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 24th of April 2025

Before

UPPER TRIBUNAL JUDGE MAHMOOD
and
DEPUTY UPPER TRIBUNAL JUDGE OBI

Between

EVANS OKEYRE BERCHIE
EMMANUEL OSEI BERCHIE
MADALENE OSEKREEO
(NO ANONYMITY ORDER MADE)
Appellants
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr E. Fripp, Counsel, instructed by Duncan Lewis & Co Solicitors
For the Respondent: Mr T Lindsey, Senior Presenting Officer

Heard at Field House on 17 February 2025

DECISION AND REASONS

Anonymity
1. The Judge made an anonymity order because the Second and Third Appellants are children. The Judge anonymised the First Appellant, who at the time of the appeal was an adult, in order to protect the identity of his siblings. The parties were put on notice on the grant of permission that, as part of this appeal, anonymity would be re-considered.

2. This is an out of country case and being a child is not of itself sufficient reason to make an anonymity order. We are satisfied that on the facts of this case there is no risk of harm. Taking into account the strong public interest in open justice and having had regard to the Upper Tribunal guidance - “Guidance Note 2022: No2: Anonymity Orders and Hearings in Private”, we set aside the anonymity order.

Background
3. The Appellants are citizens of Ghana. This is an appeal with permission against the decision of First-tier Tribunal Judge O’Keeffe (‘the Judge’), dated 21 August 2024, following a hearing on 13 August 2024. By that decision, the Judge dismissed the Appellants’ appeal against the Respondent’s decision to refuse their human right claims which had been made in applications for entry clearance.

4. The Appellants were born in 2005, 2007 and 2009. At the time of the hearing before the Judge the Appellants were aged 19, 16 and 14, respectively. The Appellants sought leave to enter the UK as the dependants of their maternal uncle – Mr Charles Berchie (‘Mr Berchie’). The Appellants’ mother sadly died on 11 November 2016. Mr Berchie was granted a custody order for all three of the Appellants by the Kasoa District Court in Ghana.

5. None of the above is disputed. However, the Respondent did not accept that: (i) the Appellants met the requirements for joining a sponsor under paragraph 297 of the Immigration Rules; (ii) there were serious and compelling family or other considerations which made exclusion of the Appellants undesirable; (iii) the Appellants could be maintained adequately by Mr Berchie in the UK, without recourse to public funds.

Decision of the First Tier Tribunal
6. The Judge heard oral evidence from Mr Berchie and his partner – Ms Natasha Kwatiah. The Judge was informed that they live separately but co-parent their three children.

7. There was evidence before the Judge of regular telephone contact between the Appellants and Mr Berchie and regular financial support. At [11] the Judge found that there is both financial and emotional dependency between the Appellants and their uncle which is “real, committed or effective”. The Judge noted that the First Appellant is now an adult but accepted that he is not yet living an independent life and remains dependent on his uncle. The Judge found that there is family life between all the Appellants and their uncle in the UK.

8. The Judge had no reason to doubt that the Appellants have no contact with their respective fathers and, having considered Mr Berchie’s circumstances, was satisfied that they can be maintained and accommodated adequately in the UK without recourse to public funds. The Judge noted that, since the death of their mother, the Appellants have been living with Mr Anim who is a pastor in Ghana. The Appellants’ case was put on the basis that they cannot continue to live with Mr Anim because their living conditions are unsatisfactory; Mr Amin has three children of his own and his three-bedroom house does not provide adequate accommodation for eight people.

9. Mr Berchie was asked whether the Appellants could live in their own accommodation given that the First Appellant is now an adult. In response, the Judge was informed that the First Appellant is immature and the Third Appellant, in particular, was unlikely to be responsive to his guidance. The Judge noted that no supporting evidence for this assertion was provided. The Judge concluded at [22] that “There has been no real attempt to consider alternative accommodation for the children to live in together now that the first appellant is an adult.” The birth of the Second Appellant was registered by a person with the same surname who is described as a brother. When Mr Berchie was whether there was another brother he said, ‘the children that I know about are the three on the applications.’ It is clear that the Judge concluded that the discrepancy remained unresolved. Furthermore, Ms Kwatiah informed the Judge that the Appellants have an aunt in Ghana and there is also an aunt in Germany who visits Ghana on a regular basis. Mr Berchie did not inform the Judge about either of these relatives. The Judge concluded that Mr Berchie was “well-intentioned” but did not provide a full picture of the children’s family circumstances in Ghana.

10. At [26] the Judge concluded, having considered all the circumstances in the round, that it is not in the best interests of the Appellants to uproot them from the life they have known in Ghana and relocate them to the UK. The Judge was not satisfied that options, other than relocation to the UK, had been considered and found that it had not been demonstrated that there are serious and compelling family or other considerations which make exclusion of the Appellants undesirable. At [29], in balancing the private interests of the Appellants against the public interest, the Judge concluded that refusal of the application is a proportionate and fair balance between the competing interests.

Appeal to the Upper Tribunal
11. Permission to appeal was refused by First-tier Tribunal Judge Bibi on 17 October 2024. The application for permission was renewed and granted by Upper Tribunal Judge Hoffman on 19 December 2024.

12. The sole ground of appeal is that the Judge made a material error of law in assessing whether the Appellants met the requirements of paragraph 297 of the Immigration Rules. The Appellants provided, in their original grounds of appeal, examples of where the Judge is said to have erred in law in her consideration of the evidence.

The Hearing
Preliminary Matters
13. Aside from anonymity, a few other preliminary issues arose at the start of the hearing. The original grounds of appeal were not included in the hearing bundle; only the renewed application that was submitted to the Upper Tribunal, the decision made by First Tier Tribunal Judge Bibi refusing permission to appeal was also not included and there was a dispute between the parties as to a part of the oral evidence of Ms Kwatiah during the appeal hearing before the Judge.

14. The most significant of these preliminary issues related to Ms Kwatiah’s evidence. Mr Fripp (who had appeared in the First Tier Tribunal) had a handwritten note of her evidence in which it was recorded (amongst other things) that Mr Berchie has a sister in Germany. There had been no request for a transcript of the hearing and Mr Fripp’s note had not been formally served on the Respondent. Mr Lindsey accepted that Mr Fripp’s handwritten note was “broadly accurate,” but he expressed concern that the finer details of Ms Kwatiah’s evidence may be important. The parties were given the opportunity to see if a pragmatic solution could be found and following a short break, we were provided with a copy of both Mr Fripp’s handwritten note and the typed note of the Presenting Officer who had represented the Respondent in the First Tier Tribunal. There was no application to adjourn for a listening appointment. The parties were content for us to proceed with the hearing and consider both sets of notes. The parties were also content for us to determine the appeal based on the evidence in the bundle and their oral submissions.

Submissions
15. Mr Fripp acknowledged that “serious and compelling” considerations was a demanding test but submitted that it was not intended to be unrealistic or extreme. He further submitted that the oral evidence of Ms Kwatiah was that Mr Berchie had three siblings, but he did not have a good relationship with his sister in Germany and she had refused to look after the children. He suggested that this accounted for the discrepancy between Ms Kwatiah’s evidence and Mr Berchie’s evidence in relation to other family members who could provide support for the children. The witness statements pre-dated Ms Kwatiah’s visit to Ghana during which she had seen the Appellants and was in a position to comment on their “mood.” Mr Fripp submitted that the Judge appeared to find Ms Kwatiah to be a credible witness. He further submitted that Mr Amin is not a parent to the children and since taking the children in he has started his own family. He is not a carer; he is providing accommodation on a temporary basis. Mr Fripp invited us to conclude that the Judge had not adequately assessed the evidence of Ms Kwatiah and had not given the evidence of Mr Amin sufficient weight.

16. Mr Fripp further submitted that the issue was not whether there were other options for the care of the children but whether there were serious and compelling grounds for entry clearance. He submitted that the Judge should have considered the best interests of the children and by analogy referred us to the welfare checklist in section 1(3) of the Children Act 1989 (CA 1989) (wishes and feelings of the child, physical, emotional, and educational needs etc). He submitted that the physical and emotional needs are best delivered by Mr Berchie.

17. In reply, Mr Lindsey submitted that section 1(3) CA 1989 does not directly apply in these proceedings but the checklist includes the factors that need to be considered. The Judge found no risk or prejudice to the needs of the Appellants. The only issue was their emotional needs and the Judge having considered their wishes concluded that they were settled in Ghana. Mr Lindsey submitted that the Judge was well aware of the familial rift and, in any event, the sister in Ghana was not the only family member Mr Berchie failed to disclose. He further submitted that the absence of any consideration of alternative accommodation for the Appellants to live in together is fatal given the high threshold required to establish serious and compelling family or other considerations under paragraph 297(i)(f) of the Immigration Rules.

18. Both parties submitted that if we find that the Judge’s decision is vitiated by an error of law, the re-making decision should be retained in the Upper Tribunal.

Discussion and Conclusions
19. It is trite law that a judge does not need to refer to all the evidence that has been considered. and the mere fact that certain parts of the evidence were not specifically mentioned does not mean that they have been overlooked. The First-tier Tribunal is recognised as a specialist fact-finding Tribunal and the Upper Tribunal is required to exercise judicial restraint when considering the merits of any challenge to the reasoning of a First-tier judge who saw and heard the oral evidence (see Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, [2024] 1 WLR 4055 at [26]). The Upper Tribunal may interfere with findings of fact and credibility only where such a finding is ‘plainly wrong’ or ‘rationally insupportable’ (see Volpi & Anor v Volpi [2022] EWCA Civ 464, [2022] 4 WLR 48 at [2]-[5]). Furthermore, it is necessary to guard against the temptation to characterise as errors of law matters which are no more than disagreements about the weight to be given to various factors, particularly if the judge who decided the appeal had the advantage of hearing oral evidence. The weight to be given to any particular factor in an appeal is a matter for the judge and will rarely give rise to an error of law.

20. What is required by way of reasons will depend on the nature of the issue. Here, the issue was whether the Appellants had established that “serious and compelling” considerations family or other considerations which make exclusion of the Appellants undesirable. The Judge correctly identified the test under the rules and applied that test to the circumstances of the Appellants’ case. The argument that the Judge, in effect, applied a reduced test founders on a fair and natural reading of the reasons provided. The Judge considered the evidence in the round. The Judge considered the absence of any evidence to support the assertion that the First Appellant is immature and concluded that attention from social services would not necessarily be adverse on the facts of this case. The Judge was entitled to make the findings she did, including at [26] that the assertion that there was no viable alternative but for the Appellants to relocate to the UK was not made out on the evidence. We accept the submission made by Mr Lindsey that the absence of any consideration of alternative accommodation was fatal given the high threshold for establishing “serious and compelling” considerations.

21. The Judge concluded that Mr Berchie had omitted key information during his oral evidence. Whilst it was argued that no adverse credibility findings were made specifically in relation to Ms Kwatiah’s credibility, that does not mean that the Judge had to accept that the Appellants had proved their case on the balance of probabilities. This includes the non-involvement or otherwise of their aunt in Germany and the conditions in which the children are living. The Judge plainly had the evidence of Ms Kwatiah in mind when considering the Appellants’ circumstances as she expressly rejected the suggestion that due to the nature of Mr Berchie’s relationship with his sister in Germany, they may not have regarded each other as siblings. Nothing turns on the Judge not having expressly referred to the entirety of Ms Kwatiah’s evidence. The Judge found that, to the extent that church services at Mr Amin’s house result in the Appellants having to go to bed late, it does not happen on a regular basis given that it was not mentioned in the witness statements of either Mr Berchie or Ms Kwatiah.

22. The Judge directed herself concerning the need to consider the welfare of the Appellants. The CA 1989 welfare checklist has no direct application but includes relevant factors a judge should take into account when considering the best interests of a child. In the immigration context, the requirement to take into account the best interests of the child derives from section 55 of the Borders, Citizenship and Immigration Act 2009 and in the case of ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 Lady Hale (with whom Lord Brown and Lord Mance agreed) held at [25] that the best interests of a child was “a primary consideration” and not “the paramount consideration”. This was re-affirmed in CAO v Secretary of State for the Home Department [2025] where it was stated that the First-tier tribunal was required to consider the best interests of any children involved in the case, and where it was argued that removal would breach a child's ECHR rights, it was ordinarily entitled to assume that all relevant evidence had been adduced. The First-tier tribunal did not have to investigate whether any evidence had been overlooked unless it did not have the information necessary to make a proper decision.

23. The findings of fact reached by the Judge provided the foundation upon which any assessment of the Appellants’ best interests should have been based. And, of course, assessment of a child’s best interests must be conducted against the real-world backdrop of the family circumstances. The Appellants had not persuaded the Judge that their circumstances in Ghana were as they claimed them to be. The Judge’s concerns about the credibility of the evidence of Mr Berchie is unimpeachable. The Judge was entitled to reach those conclusions about the evidence. Therefore, it is unsurprising that the Judge’s assessment of the best interests of the Appellants was in the maintenance of the status quo. In light of the Judge’s credibility finding and failure of the Appellants to demonstrate that there were “serious and compelling” considerations the conclusion that the Appellants should not be uprooted was the only conclusion rationally open to her.

24. Having carefully considered the sole ground of appeal we do not accept the submission that the Judge failed to take sufficient account of the evidence. The Judge correctly applied the “serious and compelling” test which is set out in Mundeba (s.55 and para 297(i)(f) DRC [2013] UKUT 88 (IAC). Nor do we accept the submission made by Mr Fripp that the Judge placed too much weight on the inconsistencies in Mr Berchie’s evidence and gave insufficient weight to the evidence of Ms Kwatiah and Mr Amin. In reality, the ground of appeal is little more than an attempt to reargue the appeal. In effect, the Judge simply found that the evidence of the witnesses did not assist the Appellants in discharging the burden of proof. Moreover, it was for the Judge to decide what weight to give to the evidence of the witnesses including the consistencies and discrepancies in Mr Berchie’s account.

25. Therefore, despite the helpful written and oral submissions made by Mr Fripp we do not accept that any of the grounds of appeal establish a material error of law in the Judge’s decision. The findings were entirely open to the Judge who had the benefit of considering the evidence in detail and hearing competent argument from both representatives. It cannot be said that the findings are vitiated by an error of law.

Notice of Decision
The decision of the First-tier Tribunal did not involve the making of a material error on a point of law. Therefore, the decision of the First-tier Tribunal, which had dismissed each of the Appellant’s grounds of appeal, thereby stands.

Margaret Obi

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 April 2025