Mr Victor Omar Ortega v The Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Lane,Pitt,Lane J |
| Judgment Date | 06 August 2018 |
| Neutral Citation | [2018] UKUT 298 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 06 August 2018 |
[2018] UKUT 298 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE HONOURABLE Mr Justice Lane, PRESIDENT
UPPER TRIBUNAL JUDGE Pitt
For the Appellant: Miss C Charlton of Bhogal & Co Solicitors
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer
Ortega (remittal; bias; parental relationship)
1. In an Upper Tribunal error of law decision that remits an appeal to the First-Tier Tribunal, a clear indication should be given if the appeal is to be re-made de novo. If that is not the case, the error of law decision should set out clearly the issues which require re-making and any preserved findings of particular relevance to the re-making of the appeal.
2. As set out in BW (witness statements by advocates) Afghanistan [2014] UKUT 00568 (IAC) at paragraph (v) of the headnote of that case: “(v) Where an advocate makes a witness statement in the circumstances outlined above, a change of advocate may be necessary, since the roles of advocate and witness are distinct, separated by a bright luminous line. An advocate must never assume the role of witness.”
3. As stated in paragraph 44 of R (on the application of RK) v Secretary of State for the Home Department (Section 117B(6): “parental relationship”) IJR [2016] UKUT 00031 (IAC), if a non-biological parent (“third party”) caring for a child claims to be a step-parent, the existence of such a relationship will depend upon all the circumstances including whether or not there are others (usually the biologically parents) who have such a relationship with the child also. It is unlikely that a person will be able to establish they have taken on the role of a parent when the biological parents continue to be involved in the child's life as the child's parents.
. This is an appeal against the decision issued on 24 November 2017 of First-tier Tribunal Judge G Jones QC which refused the Article 8 ECHR appeal of Mr Ortega.
. The appellant is a citizen of Ecuador and was born on 1 June 1979. He claims to have come to the UK in January 2001 using a false Spanish passport. Having entered illegally he remained unlawfully until he made an application for leave to remain on Article 8 ECHR grounds on 14 January 2015. The application was based on a relationship akin to marriage with Ms Jexi Falcones, a British national, and her British daughter, A, born on 14 October 2006.
. On 16 March 2015 the appellant was convicted of possessing/controlling an identity document with intent. He was sentenced to a suspended imprisonment of six months and a requirement to undertake unpaid work for 120 hours.
. On 5 May 2015 the respondent refused Mr Ortega's Article 8 ECHR application.
. In the decision refusing the Article 8 ECHR claim, the respondent found that the Immigration Rules were not met. Firstly, the appellant did not meet the suitability requirements of Appendix FM, specifically paragraph S-LTR.1.6. as the appellant's conviction and illegal entry and residence amounted to conduct such that it was undesirable for him to be allowed to remain in the UK.
. Secondly, as he fell for refusal under paragraph S-LTR.1.6., the appellant could not meet the relationship requirements of R-LTRP.1.1(c)(i) or (d) (i) of Appendix FM to the Immigration Rules. Further, the appellant indicated that he and Ms Falcones had begun to cohabit only in November 2014. They had therefore not been living together in a relationship akin to a marriage for two years prior to the application in January 2015 and could not meet paragraph GEN.1.2.(iv) of Appendix FM. Failure to meet those requirements meant that the appellant was not entitled to the benefit of paragraph EX.1 of the Immigration Rules.
. Thirdly, the appellant's relationship with A did not meet the requirements for leave as a parent. The appellant's inability to meet the suitability requirements prevented him from doing so. A was not his child so he could not meet paragraph E-LTRPT.2.2 of Appendix FM. In any event, he did not have sole responsibility for A and cohabited with her mother, precluding the requirements of paragraph E-LTRPT.2.3. from being met. He could not come within the definition of a parent set out in paragraph 6 of the Immigration Rules as, even if his claim to be A's stepfather was accepted, her biological father was still alive.
. The respondent also found that paragraph 276ADE of the Immigration Rules was not met as the appellant did not have the requisite number of years of residence and could not show that the “very significant obstacles” to re-integration test from paragraph 276ADE(vi) was met given that he lived in Ecuador until the age of 22 and would have retained social, cultural and familial ties.
. In the Article 8 ECHR assessment outside the Immigration Rules, as the appellant had only been living with Ms Falcones and A for six months, it was not found that he had developed such strong bonds with them that they would experience unjustifiably harsh consequences if he were to leave the UK. Ms Falcones could be expected to provide for A's welfare, with state support if necessary. Any difficulties for Ms Falcones and A were outweighed by the applicant's conduct in entering and remaining in the UK illegally and his criminal conviction.
. The appellant's appeal to the First-tier Tribunal was initially dismissed in a decision issued on 10 October 2016 by First-tier Tribunal Judge Amin. In that decision First-tier Tribunal Judge Amin did not find the appellant's relationship with A was sufficiently strong to meet the provisions of the Immigration Rules or that the appellant's return to Ecuador would affect her best interests which were to be with her mother and retain contact with her natural father. It was accepted that the appellant had a relationship with Ms Falcones but not one that met the provisions of the Immigration Rules or showed that it would be disproportionate for the appellant to return to Ecuador where the relationship was formed at a time when the couple knew that Mr Ortega was in the UK illegally.
. Permission to appeal to the Upper Tribunal against the decision of Judge Amin was granted in a decision dated 8 February 2017.
. In a decision issued on 20 April 2017, the Upper Tribunal found an error of law and remitted the appeal to be re-made in the First-tier Tribunal. The Upper Tribunal decision identifies in paragraph 8 that an error of law arose as the First-tier Tribunal had proceeded on the mistaken basis of the appellant's conviction being for possession of controlled drugs and placed significant weight on that factor. In paragraph 9 the Upper Tribunal found a second error as the First-tier Tribunal referred to the appellant being returned to Jamaica. A third material error of law was found in paragraph 10 where the First-tier Tribunal expressed doubts about the appellant having a genuine relationship with Ms Falcones but accepted elsewhere in the decision that he had established a family life in the UK with her and A, the two findings being contradictory.
. The remitted appeal came before the First-tier Tribunal again on 14 November 2017, on this occasion before First-tier Tribunal Judge G Jones QC. In his decision issued on 24 November 2017 he found that the appellant had not shown that the Immigration Rules could be met and that it was proportionate for the appellant to return to Ecuador.
. The appellant again applied for permission to appeal to the Upper Tribunal. Permission was granted in a decision dated 4 January 2018. Thus the hearing came before us on 26 June 2018.
. The appellant brought four grounds of appeal against the decision of the First-tier Tribunal.
. Ground 1 maintained that the decision of the First-tier Tribunal disclosed bias.
. Ground 2 maintained that the First-tier Tribunal had not taken a lawful approach to the best interests assessment of A.
. Ground 3 alleged procedural unfairness where the First-tier Tribunal had been asked to watch an interview of A discussing her relationship with the appellant which had been recorded onto a CD but the decision showed that he had only read a transcript of that interview. This ground also argued procedural error arose as the First-Tier Tribunal had relied on matters from the decision of First-tier Tribunal Judge Amin which had been set aside and not treated the appeal as de novo.
. Ground 4 concerned a failure to give adequate reasons for placing little weight on the independent social work report.
. Ground 5 maintained that the Article 8 ECHR proportionality assessment was infected by the errors of law contained in grounds 1 to 4 and also objected to a comparison of the separation from A as a result of the appellant's removal to Ecuador being similar to separation from a child arising from the imprisonment of a criminal offender.
. The respondent provided a rule 24 letter dated 29 January 2008 maintaining that the allegation of bias was not made out and the grounds were really only a disagreement with an adverse but fully reasoned decision. The judge treated the appeal as de novo, made his own assessment of the evidence and did not adopt the findings of the previous judge. It was open to him take into account evidence recorded in the previous First-tier Tribunal decision. The approach to the best interests of the child was not, in substance, erroneous.
. The Upper Tribunal decision of Alubankudi (Appearance of bias) [2015] UKUT 00542 sets out in paragraphs 6 to 8 the “Governing Legal Principles” to be applied when considering an allegation of bias:
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