Tribunal decisions

The decision

Upper Tribunal
Immigration and Asylum Chamber Appeal Number: VA/05021/2013

THE IMMIGRATION ACTS

Heard at Field House
Promulgated on:
On 19 December 2013
On 23 December 2013

Before

Upper Tribunal Judge Kekić

Between

Yenie Bitew Asgedom
(anonymity order not made)
Appellant
and

Entry Clearance Officer
Respondent

Determination and Reasons

Representation
For the Appellant: Dr A I Corban
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

Background
1. This appeal comes before me following First-tier Tribunal Judge Robertson’s grant of permission to the appellant in respect of the determination of First-tier Tribunal Judge M A Khan who dismissed his visit appeal of a determination dated 30 September 2013.
2. The appellant is a citizen of Ethiopia born on 2 June 1942. He seeks entry clearance to visit his daughter for “five years in and out”. In her letter of invitation the sponsor made reference to there being no one but her to help her father with everyday tasks which he required help with. This led the ECO to question the appellant’s intentions and the refuse the application. Although the sponsor sought to explain this away as a mistake in her oral evidence at the hearing, the judge found that she was not a credible witness. He concluded that the true intention was settlement and he dismissed the appeal.
Appeal hearing
3. At the hearing I heard submissions from the parties. The sponsor was present as an observer. Dr Corban expanded on the grounds. He submitted that the judge had failed to consider the appellant’s previous visits to the UK, that he had visited his wife in the USA and had not overstayed and that he had a home in Ethiopia where he lived with his adopted daughter. He also received income from a rental property. The judge placed too much weight on the sponsor’s statement and disregarded the other evidence which pointed to the appellant’s intention being just a visit. Moreover, as it was accepted that the sponsor had included an extract from the rules on dependent relatives, the judge should have looked carefully at the other evidence. There was nothing apart from the sponsor’s statement to suggest that settlement was planned. The appeal should have been allowed.
4. In response, Mr Tarlow submitted that the judge had made findings that he was entitled to make. The sponsor had made a statement about the appellant’s needs and the judge had to make a finding on that. He had considered the previous visits but circumstances change and the judge noted that each application had to be dealt with on its own merits. The issue was whether the judge believed that the appellant’s true intentions were just to visit. There was enough evidence to question that. No error of law was identified.
5. Dr Corban replied. He stated that the new rules were in force at the time the application was made and visitors could not switch to a permanent category. As the appellant would not therefore be able to switch from a visitor to a dependant, the judge was wrong to suggest this was what the appellant and sponsor had in mind. The evidence did not support the conclusion that there was an intention to settle because the appellant would not be able to qualify under the rules. Excessive weight was placed on the sponsor’s statement and insufficient or no weight given on the appellant’s previous visits and the ties he had to Ethiopia. The judge did not consider the case fairly.
6. At the conclusion of the hearing I reserved my determination which I now give.

Findings and Conclusions
7. I have taken into account the submissions made and the determination of the First-tier Tribunal. The sponsor described the appellant as having no family to care for him in Ethiopia and being unable to manage on his own. Whether or not the appellant lives with his adopted daughter, the sponsor appears to have believed she (the sponsor) was the only one who was willing and able to care for him. Although the sponsor claims to have made a mistake in incorporating the requirements of the dependent relative rule into her sponsoring letter, it is not properly explained why she should have made such a statement if it did not apply. It is said that the appellant has strong ties to Ethiopia but his wife lives in the USA and although it is said in the papers that she intends to return to the appellant at some point, that is a vague claim with no specified date. His three biological children all live in the UK. Two of his four previous visits were made over four years ago when he was still in his sixties, one further visit was made in 2011 and one in September 2012. The judge took these into account (at paragraph 26). However, he was right to point out that each application had to be assessed on its own merits. The appellant has grown older. The suggestion in the grounds of appeal and the skeleton argument that he is fit, well, healthy and able to go wherever he pleases is sharply contradicted by the picture the sponsor painted of him (in her letter) as an elderly man who is alone with no one to care for him and who needs help with routine tasks.
8. The ECO was not satisfied that the appellant’s home circumstances were as made out to be in the light of the sponsor’s own comments and nor was the judge. That was a view they were both entitled to take. The sponsor provided no good explanation for why she said what she did if it were not true. Nor did she make any mention of when or why her mother would return to Ethiopia. The judge was well aware of the appellant’s previous visits and contrary to the submissions, took that into account. The assignation of weight to the evidence was a matter for him; it was entirely open to him to place more weight on one part of the evidence than on another.
9. I am not persuaded by Dr Corban’s submission that because the appellant would be unable to qualify to remain under the rules, there is no intention for a settlement application to be made. Following that reasoning, no applicant would ever make an application that could not succeed and we all know in this jurisdiction that is not the case.
10. Whilst it may be that another judge would have taken a different view on the evidence, Judge Khan’s decision was one which was open to him to make. He was entitled to find that the sponsor’s description of her father as someone who needed long term personal care to perform every day tasks did not sit well with the claim that he was able to live without any difficulties in Ethiopia and that he would return there after a short visit.
11. I do not find that any error of law was made such as to require the setting aside of the determination.

Decision
12. There is no error of law and the decision of the First-tier Tribunal to dismiss the appeal is upheld.

Signed:

Dr R Kekić
Judge of the Upper Tribunal

19 December 2013