Upper Tribunal (Immigration and asylum chamber), 2016-07-15, IA/10824/2015 & IA/10826/2015
| Jurisdiction | UK Non-devolved |
| Date | 15 July 2016 |
| Published date | 19 June 2017 |
| Hearing Date | 17 June 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/10824/2015 & IA/10826/2015 |
Appeal Numbers: IA/10824/2015
IA/10826/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/10824/2015
IA/10826/2015
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
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On 17th June 2016 |
On 15th July 2016 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS
Between
miss emmanuella naa amerley gyapong (first appellant)
Mr daniel nii amartey gyapong (second appellant)
(ANONYMITY DIRECTION NOT MADE)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr R Sharma, Counsel
For the Respondent: Mr K Norton, Home Office Presenting Officer
DECISION AND REASONS
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The Appellants are citizens of Ghana born respectively on 17th June 1997 and 6th June 1999. They are brother and sister. The Appellants’ immigration history is set out in detail in the decision and reasons of Judge Davies at paragraphs 2 to 5. I have given due and full consideration to these paragraphs.
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On 19th November 2014 the Appellants had applied for indefinite leave to remain in the United Kingdom. This was despite the fact that their visa valid for six months from 14th October 2013 to 14th April 2014 had expired. Their claim was based under paragraph 298 of the Immigration Rules, namely that they sought indefinite leave to remain as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom. Those applications were refused by Notices of Refusal dated 4th March 2015.
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The Appellants appealed and the appeal came before Judge of the First-tier Tribunal M Davies sitting at Hatton Cross on 19th October 2015. In a decision and reasons promulgated on 12th November 2015 the Appellants’ appeals were dismissed under the Immigration Rules and on human rights grounds.
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On 26th November 2015 Grounds of Appeal were lodged to the Upper Tribunal. On 17th May 2016 Judge of the First-tier Tribunal Shimmin granted permission to appeal. Judge Shimmin noted that the grounds requesting permission to appeal argued that the judge had erred in:
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relying on evidence in the form of a witness statement admitted after the hearing which was not put to the Appellants or the witness, and
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the approach of the judge to the funds available to the Appellants.
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Judge Shimmin considered that both grounds constituted material errors of law and that it was arguable that the failure of the judge to let the Appellant or witness answer a deficiency in the witness statement was unfair and that the judge’s consideration of the funds available to the Appellant was also an error.
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On 26th May 2016 the Secretary of State responded to the Grounds of Appeal. In summary the Rule 24 response submitted that the judge directed himself appropriately and that the evidence submitted posthearing was submitted by the Appellants themselves and that it had always been within the Appellants’ knowledge that the Respondent disputed there was sole responsibility for the Appellants by their father and as such they had had every opportunity since the refusal letter to adduce the evidence to support their case or to provide an explanation when submitting the requested letter. In any event the Rule 24 reply contended that even if it were found to be in error to have referred to the witness statement, it was contended that the error would not be material and that it is noted that the witness statement formed a small part of a significant number of findings made by the judge and those findings would, it was contended, be undisturbed even if no reliance had been placed on the witness statement or the Appellants were given the opportunity to comment upon it.
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With regard to the funds it is submitted in the Rule 24 reply in reliance upon Ahmed (benefits: proof of receipt: evidence) Bangladesh [2013] UKUT 84 that the burden was on the Appellants to demonstrate that they had the relevant funds by way of a schedule setting out the sources of income and how the weekly calculation was made. The Rule 24 response noted that it was open to the judge given the lack of evidence to determine that the Appellants had failed to discharge the burden upon them when considered in line with the Immigration Rules on what is considered to be public funds and that the finding was not solely based on the fact that the Appellant was in receipt of child tax credit.
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It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellants appear by their instructed Counsel Mr Sharma. Mr Sharma is extremely familiar with this matter. He appeared before the First-tier Tribunal and he is also the author of the Grounds of Appeal. The Respondent appears by her Home Office Presenting Officer Mr Norton.
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Whilst I am not rehearing this matter, I am also referred to an up-to-date bundle of documents provided by the Appellants’ legal representatives. In particular that bundle introduces new evidence so far as it relates to the Sponsor’s finances, bearing in mind that the Judge of the First-tier Tribunal had noted in his determination that no schedule of income and expenditure had been included. I am also provided with a letter from the headmaster of Christ Mission School, Accra stating that Daniel was a student there between 2008 and December 2013 and that he lived with his grandparents who were his guardians and responsible for his education. Mr Norton does not object to any of this additional evidence being before me albeit that all legal representatives acknowledge that the issue extant is whether or not there are material errors of law in the decision of the First-tier Judge.
Submissions/Discussions
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Mr Sharma is grateful with the concession made that the letter by Christ Mission School could be admitted in evidence, bearing in mind that part of the thrust of the Grounds of Appeal emphasised the failure to allow questions to be put to a witness. Mr Sharma points out that there had been a previous hearing in this matter on a visit visa appeal but that at the hearing before the First-tier Judge the Home Office Presenting Officer merely waived the visit visa decision in front of the Tribunal and the judge decided that it was relevant to hear evidence. Copies of the witness statement, i.e. the witness statement that was before the visit visa appeal, were therefore sent in afterwards to the judge. Mr Sharma alleges that an unfair prejudice arose to the Appellants thereafter in the allowing in of this documentation without the right of cross-examination or response. He points out that none of the material from the earlier visit visa had been placed before the Tribunal for the purpose of the appeal and the reason was that it was a lack of relevance in relation to the papers not supplied.
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At the judge’s request the witness statement from the visit visa appeal was sent in by email. It was only served because the judge wished to see it. The judge thereafter took points from that witness statement and the Appellants were never given the opportunity to answer them. Mr Sharma submits that in such circumstances it was wrong of the First-tier Tribunal Judge to make adverse findings on the basis of evidence on which the witnesses had no opportunity to comment. Further, he refers to the email that attached the witness statement to the judge, the content of which is set out at paragraph 12 of his Grounds of Appeal and he contends that it was necessary at least for the First-tier Tribunal Judge to make reference to the submissions and to raise any conflicts that had arisen.
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Mr Sharma takes me to paragraph 31 of the judge’s decision noting that he heard oral testimony from all three attendees, namely the Appellants and their witnesses, particularly bearing in mind his finding that he was not satisfied that they were telling the truth and the claim that the Appellants had been living with their maternal grandparents prior to coming to the UK rather than with their mother, then it is only right that they should have been given the opportunity to answer the questions set out in the witness statement and that the failure to do so creates a procedural unfairness. Further, he submits that the judge also misdirects himself as to the facts and circumstances in this case and to the documentation to be found in a previous bundle including the witness statement of the Appellant in which there is evidence he submits confirming residence with the grandparents. He submits that these issues have not been addressed by the judge.
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He further points out that the Tribunal clearly did not have before it the letter from the Appellants’ school and that based on the lack of evidence regarding residence the judge wrongly made...
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