Upper Tribunal (Immigration and asylum chamber), 2021-12-22, HU/22788/2018
| Jurisdiction | UK Non-devolved |
| Date | 22 December 2021 |
| Published date | 10 January 2022 |
| Hearing Date | 01 December 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/22788/2018 |
Appeal Number: HU/22788/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/22788/2018
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 1 December 2021 |
On the 22 December 2021 |
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Before
UPPER TRIBUNAL JUDGE blum
DEPUTY Upper Tribunal JUDGE NAJIB
Between
BS
(ANONYMITY DIRECTION MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Ms K Reid, counsel, instructed by Signature Law
For the respondent: Ms Ahmad, Senior Home Office Presenting Officer
DECISION AND REASONS
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This is a decision remaking the decision of Judge of the First-tier Tribunal Brewer promulgated on 18 June 2019, dismissing BS’s (the appellant) appeal on human rights grounds against the decision of the Secretary of State for the Home Department (the respondent) dated 23 October 2018 refusing her human rights claim.
Background
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The appellant is a national of Nigeria born in 1978. She has two children fathered by OS in Nigeria who were born in March 2004 and January 2007. These two children remain in Nigeria. OS is a Nigerian national and was and continues to be married to the appellant.
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The appellant entered the United Kingdom in November 2010 with entry clearance as a visitor. She overstayed. OS, who was also present in the UK, fathered a further child with the appellant, IS, who was born in September 2013. The appellant’s relationship with OS soured and he left the appellant following IS’s birth. The appellant has had no further contact with OS.
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The appellant met AO in August 2015. AO is a British citizen. The appellant maintains that he fathered a child (JO, a daughter) born in August 2016. The appellant’s relationship with AO broke down soon after she fell pregnant. The appellant maintains that a “late friend”, AF, intervened on her behalf to persuade AO, who otherwise had no interest in the child, to obtain a British passport for JO. A passport for JO issued by Her Majesty’s Passport Office (HMPO), identifying her as a British Citizen, was issued on 27 January 2017.
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The appellant made an Article 8 ECHR human rights claim on 11 October 2017 based primarily on her parental relationship with her son IS and her daughter JO. In refusing the human rights claim on 23 October 2018 the respondent noted that the appellant was still married to OS and that, for the purposes of the British Nationality Act 1981 (BNA), JO was considered to be Nigerian and was not considered to be a British Citizen. Although not clearly articulated within the Reasons for Refusal Letter, the respondent was relying upon s.50 (9A) of the BNA which, at the time of the decision, provided:
For the purposes of this Act, a child's father is –
(a) the husband, at the time of the child's birth, of the woman who gives birth to the child;" or
(b) where a person is treated as the father of the child under section 28 of the Human Fertilisation and Embryology Act 1990 or section 35 or 36 of the Human Fertilisation and Embryology Act 2008, that person, or
(ba) where a person is treated as a parent of the child under section 42 or 43 of the Human Fertilisation and Embryology Act 2008, that person, or
(c) where none of the paragraphs (a) to (ba) applies, a person who satisfies prescribed requirements as to paternity.
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As AO was not the appellant’s husband at the time of JO’s birth, the respondent was not satisfied that he could be considered, for the purposes of establishing British citizenship, as the child’s father. In her Reasons for Refusal Letter the respondent did not make any express allegation that JO’s passport was obtained by means of dishonesty or subterfuge, or suggest that AO was not JO’s biological father.
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Nor was the respondent satisfied that the appellant could meet the requirements of Appendix FM of the Immigration Rules, which sets out the requirements for permission to remain in applications involving family members, because neither of her children were British and neither had lived in the UK for 7 years preceding the date of the appellant’s application. Nor was the respondent satisfied that the appellant met the requirements of paragraph 276ADE(1) of the Immigration Rules, relating to private life rights. The respondent was not satisfied there were any exceptional circumstances such that the refusal of the application would result in a breach of Article 8 ECHR because it would result in unjustifiably harsh consequences for her or her children.
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The appellant appealed the respondent’s refusal of her human rights claim pursuant to s.82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). In his decision promulgated on 18 June 2019 Judge Brewer dismissed the human rights appeal. In an ‘error of law’ decision promulgated on 27 November 2020 the Upper Tribunal agreed with the views of both representatives that Judge Brewer materially erred in law in his approach to the issues relating to the British passport issued to the appellant’s daughter, JO, and, in particular, the manner in which the judge reached his conclusions that the appellant had essentially been dishonest in her dealings with HMPO and his concerns expressed in respect of JO’s paternity. The Upper Tribunal set aside Judge Brewer’s decision and indicated that it would remake the decision afresh at a further hearing. The Upper Tribunal’s ‘error of law’ decision included, inter alia, the following directions:
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The respondent is to set out in writing her position with respect to the passport issued to JO, supporting that position with any relevant documents (including any obtained from HMPO), to be filed and served on the Upper Tribunal and the appellant’s legal representatives no later than 6 weeks after this decision is issued.
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The appellant is to file and serve on the Upper Tribunal and the respondent any documentary evidence relating to the application to HMPO that resulted in the issuance of JO’s passport, including the evidence that accompanied the application.
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The remaking hearing was listed for 21 July 2021. Neither party complied with the Upper Tribunal’s directions. The hearing had to be adjourned. At the date of the adjourned hearing the applicant’s oldest child, IS, had been residing in the UK for a continuous period of 7 years. It was the Upper Tribunal’s view that this did not constitute a ‘new matter’ under s.85 of the 2002 Act, but Ms A Everett, representing the respondent at this hearing, confirmed that, in any event, the respondent would give her consent to the Tribunal being entitled to consider that fact that IS now met the definition of a ‘qualifying child’ under s.117D of the 2002 Act.
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The Upper Tribunal issued further directions reflecting those previously issued. The Upper Tribunal additionally directed that both parties were to file written representations pursuant to s.29 of the Tribunals, Courts and Enforcement Act 2007 and rule 10(3)(d) of the Tribunal Procedure (Upper Tribunal) Rules 2008 relating to the Upper Tribunal’s consideration of whether the conduct of the parties in failing to comply with the directions issued in the decision promulgated on 27 November 2020 warranted a costs order being made against them.
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The adjourned hearing was relisted for 23 September 2021. On this occasion the respondent, again represented by Ms Everett, again failed to comply with the directions previously issued, and the appellant partially failed to comply with the directions, although she had provided a new bundle of documents containing inter alia, two further statements from the appellant, various documents relating to IS, and a letter dated 26 August 2021 and supporting documents (many of which were redacted) from HMPO. The HMPO letter indicated that JO’s passport had been cancelled and revoked on 19 November 2018. In her most recent statement, dated 16 September 2021, the appellant stated that she had never received any letter from HMPO communicating that JO’s passport had been revoked.
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The Upper Tribunal considered that the overriding objective of dealing with cases fairly and justly required a further adjournment to enable the respondent to provide from her own records and from her communication with HMPO details of the information provided by the appellant in support of JO’s passport application and details of the service of the revocation decision, which Ms Everett indicated, with reference to a document in her file, had been occasioned by special delivery, and for the appellant to contact her previous legal representatives to ascertain their knowledge or involvement, if any, with the issuance and revocation of JO’s passport. Directions were issued to this effect. A further direction was again issued requesting the parties to make written representations in relation to their failure, again, to comply with the earlier directions.
The hearing to remake the decision
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At the hearing on 1 December 2021 Ms Ahmad, the Presenting Officer, informed the Upper Tribunal that no further...
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