Upper Tribunal (Immigration and asylum chamber), 2016-07-01, AA/00941/2015
| Jurisdiction | UK Non-devolved |
| Date | 01 July 2016 |
| Published date | 07 June 2017 |
| Hearing Date | 25 April 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | AA/00941/2015 |
Appeal Number: Aa/00941/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00941/2015
THE IMMIGRATION ACTS
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Heard at Field House |
Sent to parties on: |
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On 25 April 2016 |
On 01 July 2016 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE L J MURRAY
Between
X F G
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Dieu instructed by Gloucester Law Centre
For the Respondent: Mr Richards, Senior Home Office Presenting Officer
DECISION AND REASONS
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The Appellant is a national of China. He applied for asylum in the United Kingdom and the Respondent refused to grant asylum for the reasons given in a Reasons for Refusal Letter (RFRL) dated 19 December 2014. The Respondent made a decision to remove the Appellant as an illegal entrant by way of directions under paragraphs 8-10 of schedule 2 to the Immigration Act 1971. The Appellant appealed against that decision and his appeal was dismissed by First-tier Tribunal Judge Y J Jones in a decision dated 17 June 2015. The Appellant sought permission to appeal that decision and permission was granted by Deputy Upper Tribunal Judge Saini on renewal of the application to the Upper Tribunal on the basis that all the grounds as originally pleaded and emphasised on renewal were arguable.
The Grounds
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The Grounds of appeal to the First-tier Tribunal contend that the First-tier Tribunal erred in finding at paragraph 43 that there was no DNA evidence in relation to the Appellant’s parentage of his children. It is submitted that the Judge appeared to doubt the parentage of the children despite the fact that the Respondent had accepted that he was the father of the three children and did not challenge any of the evidence in respect of the relationship. It is said to be of particular significance as the Judge specifically checked with the Presenting Officer whether this was in issue during the hearing. It is asserted therefore that the Judge went on a frolic of her own and this had tainted the whole approach to Article 8. These issues had not been raised at the hearing thereby failing to give the Appellant a fair trial as he had no opportunity to address the concerns. She had made further and inconsistent and confused findings as to whether or not she accepted that he was her father or not.
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It is also concluded that the Judge made an error of law in that she found that she was not satisfied that Ms W (the Appellant’s partner) would accompany the Appellant to China. It is submitted that this amounts to an error of law in circumstances where it was the Respondent’s case that they would be returned as a family unit and the potential for the Appellant’s partner and child to remain (which was highly unlikely as she was a failed asylum seeker) was never raised by either of the parties. It is asserted that the Article 8 assessment was flawed and based on an incorrect assumption for which there was no evidence and was contrary to the agreed position.
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It is further submitted that the Judge incorrectly applied Omotunde (best interests - Zambrano applied - Razgar) Nigeria [2011] UKUT 00247(IAC), a deportation case, when considering proportionality. It is further submitted that the Judge erred in law in concluding that if the children went to China it would be the choice of their mother. It is also asserted that the Judge failed to consider whether it was reasonable for the children to live in another country or consider the evidence that they would be subjected to substantial fines. The Judge failed to make a finding as to whether they would be able to access essential services. It is also asserted that the finding that the family would help is also perverse and contrary to evidence. It is contended that the Judge appeared to have disregarded the fact that the bond between the Appellant and his children would be severed as a result of the decision and had failed to engage with this issue. It is asserted that the Judge in finding that it was proportionate for the Appellant to make an application from China if his partner obtained status had misunderstood the basis of his Article 8 claim and that it was not a matter raised at the hearing. It is submitted that the Judge had not applied her mind to the prospects of the Appellant being permanently denied the opportunity of a relationship with his children.
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It is submitted therefore that the whole consideration of Article 8 and proportionality was inadequate and amounted to an error of law. It is argued that all of the above failures amount to material errors of law in that there is a real possibility that a tribunal properly directed would decide the matter differently.
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The grounds on renewal re-emphasise the points made in the grounds to the First-tier Tribunal and assert that First-tier Tribunal Judge Astle, in granting permission, was wrong to refuse to grant permission.
The Rule 24 Response
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The Respondent opposes the Appellant’s appeal on the grounds that the First-tier Tribunal directed itself appropriately. It is argued that the Judge addressed all the competing factors and was entitled to come to the conclusion she did.
The Hearing
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Mr Dieu relied on the initial detailed grounds of appeal which were drafted by Counsel who appeared at the hearing. He also relied on the second set of grounds.
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Mr Richards relied on the Rule 24 response and asked me to find that the First-tier Judge looked at matters on the basis that the Appellant was the father and accepted that he established family life. She looked at the situation both in terms of the Appellant going to China alone and the family remaining here and the children and their mother going to China and that is what she had to do given the facts of the case that the mother was here without status and covering any eventually that she might acquire status in the future. Particularly in paragraph 60 and 61 she dealt with the situation of the children going to China and also at 70 and 71 the situation of them remaining in the UK and took account of the relevant evidence. She took herself through all the competing interests in s117B and reached a conclusion that was properly open to her. There was no material error of law and it ought to stand and he invited me to dismiss the appeal.
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Mr Dieu said that Mr Manley had dealt with the points raised.
Discussion and Findings
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The Appellant’s challenge is in relation to Article 8 only. The Respondent did not take issue with the Appellant’s paternity of his three children in the RFRL or in submissions. The First-tier Tribunal raised the issue of the paternity of the children at paragraph 43 of the decision. She considered in that paragraph, in relation to the asylum claim, whether there was a genuine relationship between the appellant and the mother of his “claimed” children. She noted that the birth certificates were in the name of both parents but that there was no DNA evidence and no statement from his partner that she would accompany him to China if he left the UK. She noted that the partner had made submissions to the Home Office, but there was no joint application and that those submissions were outstanding. At paragraph 44, she found that there was insufficient evidence before her to be satisfied that the children named on the birth certificate produced by the Appellant were his children and even if they were, she was not satisfied that the Appellant’s partner would accompany the appellant to China if he was refused asylum. She then found at paragraph 45 that it would be in the best interests of the children to remain with their mother who resided at present in the UK and that on the evidence before her it was unclear whether the Appellant resided with them. These findings were made in relation to the Appellant’s asylum claim.
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She then considered the Appellant’s claim under Article 8 ECHR at paragraphs 55 to 73 of the decision. At paragraph 56 she considered whether he had established family life in the United Kingdom. She again referred to the fact that there was no DNA evidence to prove that the Appellant was the father of the children and the fact that there was no evidence that they had been living together save for the address on the birth certificate. She nevertheless found on the basis of the birth certificates that family life existed for the purposes of Article 8. She then considered the best interests of the children and concluded that in the light of their ages, the eldest child being 4 and the youngest 9 months old, that they had not enjoyed a substantial period of residence here. She then found that for this reason, if the...
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