Upper Tribunal (Immigration and asylum chamber), 2015-01-02, OA/10799/2013 & OA/10798/2013

JurisdictionUK Non-devolved
Date02 January 2015
Published date08 April 2015
Hearing Date28 November 2014
StatusUnreported
CourtUpper Tribunal (Immigration and Asylum Chamber)
Appeal NumberOA/10799/2013 & OA/10798/2013

Appeal Number: OA/10799/2013 & OA/10798/2013


Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: OA/10799/2013

OA/10798/2013



THE IMMIGRATION ACTS



Heard at Field House, London

Determination Promulgated

On 28 November 2014

On 2 January 2015



Before


DEPUTY UPPER TRIBUNAL JUDGE ROBERTSON



Between


MRS ASHO HAJI DINI (A1)

MISS HAJIYA AWES SHEIKH (A2)

(ANONYMITY DIRECTION NOT MADE)

Appellants

And


ENTRY CLEARANCE OFFICER

KENYA (NAIROBI)


Respondent


Representation:


For the Appellant: Mr E Nicholson, Counsel, instructed by Irving & Co, Solicitors

For the Respondent: Mr T Wilding, Presenting Officer.



DETERMINATION AND REASONS

Claim History


  1. A1 and A2 are nationals of Somalia residing in Kenya. A2 is the granddaughter of A1. The latter, whose date of birth is 10 March 1949, applied for leave to enter the UK as an elderly dependent relative of the Sponsor. She is his mother. Her application was made under the provisions of Appendix FM of HC 395, as amended (the Immigration Rules). A2, whose date of birth is 10 February 2001 and who resides with A1, applied for leave to enter as a dependent relative of the Sponsor. A2 is his niece. Her application was under paragraph 297 of the Immigration Rules.


  1. Their applications were refused on 10 April 2013. This was because A1 was not able to establish that that she met the provisions of paragraph EC-DR.1.1 (d) of Appendix FM to the Immigration Rules because (i) she did not provide evidence that she required long term personal care to perform day to day tasks due to her physical or mental health; and (ii) under paragraph E-ECDR.3.1, she was not able to establish that she could be maintained and accommodated by the Sponsor without recourse to public funds. A2’s application was refused because (i) it was not established that there were serious and compelling reasons family or other reasons which made her exclusion from the UK undesirable, pursuant to paragraph 297(i)(f) of the Immigration Rules; and (ii) there was no evidence to establish that the Sponsor could maintain and accommodate the Appellant without recourse to public funds, pursuant to paragraph 297 (iv) and (v).


  1. The Appellants appealed against the decisions. Their appeals were heard by First-tier Tribunal Judge Plumptre on 6 December 2013, who dismissed the appeals on all grounds. The Appellants were granted permission to appeal against her decision and their appeals were heard by Deputy Upper Tribunal Judge Mailer, who allowed the appeals, set aside the decision of Judge Plumptre and remitted the matter to the First-tier Tribunal for a rehearing of all the issues.


  1. The rehearing took place before First-tier Tribunal Judge Hodgkinson on 23 July 2014. He dismissed the appeals, finding that A1 was not able to meet the provisions of paragraphs E-CDR.2.4 and 2.5, and A2 was not able to meet the provisions of paragraph 297 (i)(f). Due to this, he did not go on to consider whether the maintenance and accommodation requirements were met by either Appellant.


  1. Permission to appeal was granted by Designated First-tier Tribunal Judge Macdonald on 21 October 2014. Between the time that permission was granted and the matter coming before me on 28 November 2014, the grounds of application had gone astray and neither Mr Wilding nor I had a copy. A Rule 24 Response (the Response) was filed, a copy of which had been sent to the Appellants’ representatives the day before the hearing but it was apparent that neither Mr Nicholson nor Mr Wilding had seen a copy. The Response was brief; it was stated therein that “The respondent does not oppose the appellant’s (sic) application for permission to appeal and invites the Tribunal to determine the appeal with a fresh oral (continuance) hearing to consider paragraph 297(i)(f).” Mr Wilding was surprised at the contents of the Response, and indicated that he was likely to withdraw it but would like to reserve his decision until after he had read the grounds of application. I rose to enable Mr Wilding to read the grounds of application.


  1. On resuming the hearing, Mr Wilding confirmed that he was withdrawing the Rule 24 Response because, having read the grounds of application, he did not accept that the Judge had not properly dealt with paragraph 297(i)(f). He stated that he was not sure whether the person who drafted the Response had had sight of the grounds of application or only a copy of the grant of permission, which was all that he had on his file. He submitted that there was nothing within the Tribunal Procedure (Upper Tribunal) Rules 2008, as amended (the Procedure Rules), which prevented him from withdrawing the response, that the Appellants were not prejudiced by withdrawal of it because Mr Nicholson had not, in any event, seen a copy of it and therefore had prepared for the hearing on the basis of the grounds of application and the grant of permission.


  1. Mr Nicholson, on this issue, stated that there was no provision permitting a withdrawal of a response (or for that matter, a reply filed to deal with a response) and therefore, once a Rule 24 response had been filed, it could not be withdrawn. The whole purpose of the procedure, Mr Nicholson submitted, was to ensure that there was a narrowing of the issues before the matter came before the Upper Tribunal and, for his part, the outcome suggested in the Response was a very acceptable outcome as far as the Appellants were concerned and he wanted to make clear his view that a Rule 24 Response could not be withdrawn once it had been filed.


  1. By way of background, against which the grounds of application are set, Mr Nicholson submitted that the Sponsor fled from Somalia initially going to Kenya and arriving in the UK when he was 13 years old. He was granted refugee status and became a naturalised British citizen in 2010. A1’s mother, the Sponsor’s sister, died in childbirth. A1’s mother and A2 formed part of the Sponsor’s pre-flight family. A1 has been cared for by A2 since her mother died. The Appellants went to Kenya in 2005 or 2006, they re-established contact with the Sponsor in 2006 and they had been financially dependent on him since they re-established contact. The Sponsor then attempted to pursue a ‘family reunion’ application at some point in the past but had to abandon this application due to his circumstances in the UK. There was no dispute before the Judge as to the circumstances in which the Sponsor came to the UK, his status or that the Appellants were financially dependent on the Sponsor. Mr Nicholson submitted that had the Sponsor pursued the family reunion application when it was initially made, they would have been entitled to entry clearance on the basis of a policy which had since been withdrawn. The family had been fragmented by his fleeing Somalia to seek asylum in the UK.


  1. Mr Nicholson further submitted that the relevant provisions within the Immigration Rules under which the applications for entry clearance were assessed are set out in full in the determination at [6 – 7]. In relation to A2, the ECO stated that her position was no different to other children in Kenya and the Sponsor could relocate to Kenya to enjoy family life with her. These reasons were relevant to her decision that there were no serious and compelling family and other reasons which made her exclusion from the UK undesirable and that her right to family life under Article 8 ECHR was not breached by the refusal to grant entry clearance. As to A1’s application, it was refused because there was an absence of evidence regarding her need for care under Appendix FM and FM-SE.


  1. As to the grounds of application submitted on behalf of the Appellants, taken together with Mr Nicholson’s oral submissions, these fell under 3 heads as follows:


The failure to determine issues central to the Respondent’s decision under subparagraph 297(i)(f) of the Immigration Rules (Ground 1)


  1. The Respondent in the notice of decision relating to A2 stated that it was not established that there were serious and compelling reasons why it was undesirable for A2 to be excluded from the UK because her circumstances were no different from other children in Kenya and there was nothing to prevent the Sponsor, upon whom she was dependent, going to live with her there. However, A2 was a child without status in Kenya; there is nothing within the determination to suggest that the Judge did not accept that this was the case. The Respondent’s reliance on family life continuing in Kenya was significant because the Court of Appeal in Husna Begum v ECO (Dhaka) [2001] INLR 115 had accepted that the ability of a sponsor to live with an applicant outside the UK was relevant for the purposes of determining the ‘far more stringent’ “most exceptional compassionate...

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