United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

A black background with a black square Description automatically generated with medium confidence

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-001075
	First-tier Tribunal No: HU /56902/2022

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 18 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE RIMINGTON

DEPUTY UPPER TRIBUNAL JUDGE G WILSON

 

Between

 

ALBAN BALA

(NO ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: In person

For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer

 

Heard at Cardiff Civil Justice Centre on 22 January 2025

 

DECISION AND REASONS

 

1.              The appellant, a national of Albania born on 4 ^th July 1981, appeals against the decision of First-tier Tribunal (FtT) Judge McMahon (the judge) which dismissed his appeal against the respondent's refusal of leave to remain in the UK on the basis that the appellant failed to meet the immigration rules and on human rights grounds.

2.              The appellant attended the hearing before the Upper Tribunal without representation but his grounds of appeal had been settled by his former representatives.

3.              The grounds of appeal identified that the appellant resides with his wife (the sponsor) and her children (his stepchildren aged 15 years and 13 years - born 2007 and 2009) and he has two biological children aged 16 and 15 - born in 2007 and 2008) who are both British nationals. The appellant had no contact with his children at the date of application in 2022 but shortly afterwards had regained contact and had maintained a genuine and subsisting relationship since.

 

4.              At the date of the hearing in May 2023 it was accepted by both parties that the stepchildren were not qualifying children. They entered the UK in 2017.

5.              The grounds submitted that a relevant consideration for the appellant was whether section 117B(6) of the Nationality Immigration and Asylum Act 2002 applied, whether the appellant had a genuine and subsisting parental relationship with his British children and whether it would be reasonable to expect them to leave the UK.

6.              The grounds of appeal to the Upper Tribunal advanced:

(i) a failure to consider material evidence and failure to provide adequate reasons. The judge at [47] rejected the assertion that the appellant had a genuine and subsisting relationship. There was evidence, however, from the appellant's two friends, Mr Ndreu and Ms Kalfova and the sponsor. The sponsor submitted a witness statement and attended to give oral evidence and she vouched for the direct contact the appellant had with his own children. There was no challenge or dispute as to her credibility or the plausibility of her evidence in the determination and yet the judge overlooked the sponsor's evidence and gave no reason to reject it; the judge's decision therefore was contrary to MK (duty to give reasons) Pakistan [2013] UKUT 641 (IAC).

(ii) procedural unfairness. Photographs of the appellant with his children were given no weight. Counsel's witness statement in support of the grounds explained that an application for permission to rely on the photographs was made during the hearing as were closing submissions attesting to the appellant's contact and relationship. At no point did the judge query the nature of the photographs and there was no suggestion that the photographs were not of the appellant's biological children in either cross examination nor in closing submissions. It was fundamental that such an adverse matter should be put to the witness. The judge found a lack of clarity and held this against the appellant without giving him an opportunity to respond to the claimed doubts.

(iii) insufficient reasons for overlooking the evidence of Mr Ndreu. The judge placed little weight on the evidence on the basis that the witness could not specify precise dates when he saw the children and effectively found it was unclear why such a close friend would not have remembered such dates. The judge did not explain why it was so remarkable. The closeness of the relationship was irrelevant to why the appellant would remember precise dates.

7.              Permission to appeal was granted by Upper Tribunal Judge O'Callaghan on all grounds.

 

8.              The appellant attended the hearing before us in support of the grounds. He explained the efforts he made to access his children and then he said he just contacted them on social media when they were older and they responded. The judge did not like him from the start and embarked on a 'detective tour'. He submitted that his friend Mr Ndreu ran a coffee shop and was a businessman not on surveillance.

 

9.              Ms Rushforth opposed the appeal although no rule 24 notice was submitted. She contended that it was open to the judge to find the appellant not credible albeit the sponsor credible and still dismiss the appeal. There was a discrepancy between the appellant and sponsor. In relation to ground (ii) the burden was on the appellant to address the photographs and explain who the children were. Ground (iii) was merely a disagreement on the weight to be attributed to the evidence and the judge gave adequate reasons for dismissing the evidence.

 

Conclusions

 

10.          We appreciate that the judge dismissed the appeal under Appendix FM of the immigration rules on the basis of suitability and did not accept that the appellant had made an innocent mistake [50]. That was not challenged. That the appellant has lied about one thing, however, does not necessarily mean that he has lied about everything.

 

11.          The crux of the matter was the appellant's relationship with his British citizen children and the implications for Section 117B(6) and Article 8.

 

12.          In terms of ground (i) nowhere did the judge explain why he rejected the direct evidence of the sponsor that the appellant did have direct contact with his two children. The sponsor submitted a witness statement and attended in person to give oral evidence. There is no indication that the sponsor's evidence was challenged by the Secretary of State. All the judge found in relation to that witness was that he 'generally found her evidence to be more reliable that the appellant's own evidence'. There was no challenge or dispute as to the sponsor's credibility or the plausibility of her evidence throughout the determination. Although not every point needs to be put to a witness, bearing in mind this evidence was critical, and the sponsor's credibility apparently not challenged, it was incumbent upon the judge to explain why her evidence was rejected further to MK (duty to give reasons). The judge states that he took all the evidence into account but on the face of the determination did not factor in the evidence of the sponsor or explain why he rejected it. Ms Rushforth referred to a discrepancy in the evidence of the appellant and sponsor but we note the judge stated in [39] that 'this evidence [of the appellant] was broadly corroborated by Ms Cholakova'. We find a material error of law in relation to ground (i).

 

13.          We also find that to reject the photographs on the basis given at [46] was a material procedural error. The judge reasoned at [46] that 'above all else, the appellant has not explained let alone proven to the required standard anything about the identities of the two females in the photographs'. This was evidence which was also important and if the challenge was to the identity of those in the photographs, bearing in mind this is how the photographs were introduced, this should have been directly put to the appellant via the Home Office Presenting Officer. This was not done and is a material procedural error. It went to the heart of the issue central to the appeal.

 

14.          In the light of our findings above we make little observation in relation to ground (iii) which may be a disagreement but it is surprising that a businessman running a busy coffee shop would have kept a record of the dates of someone else's meeting with their children, albeit a friend, in a café.

 

15.          Overall it is not clear to us that the decision would have been the same had the errors identified not been made and we find the errors to be material.

Notice of Decision

 

The Judge erred materially for the reasons identified. We set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). Bearing in mind the nature and extent of the findings to be made and owing to the procedural error further to Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC), the matter should be remitted to the First-tier Tribunal under section 12(2) (b) (i) of the TCE 2007.

Directions

Any further evidence is to be filed with the First-tier Tribunal and served on the Home Office no later than 21 days before the substantive hearing.

 

The appellant is to advise as to whether any witness requires an interpreter.

 

 

 

Helen Rimington

 

Judge of the Upper Tribunal Rimington

Immigration and Asylum Chamber