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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER		Case No: UI- 2024-004517 UI-2024-004518
	First-tier Tribunal No: HU/52398/2023 HU/52414/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 27 ^th of March 2025

 

Before

 

UPPER TRIBUNAL JUDGE RUDDICK

DEPUTY UPPER TRIBUNAL JUDGE RODGER

 

Between

 

OG

DG

(ANONYMITY ORDER MADE)

Appellants

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms Norman , Counsel instructed by Legit Solicitors

For the Respondent: Ms Rushforth, Senior Presenting Officer

 

Heard at Field House on 11 March 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellants are granted anonymity. This is because they are minors and we are satisfied that it is appropriate to anonymise these proceedings.

 

No-one shall publish or reveal any information, including the name or address of the appellants, likely to lead members of the public to identify them. Failure to comply with this order could amount to a contempt of court .

 

DECISION AND REASONS

1.             The appellants appeal with permission against the decision of the First-tier Tribunal dated 22 July 2024 dismissing their appeal against the respondent's decisions of 19 January 2023 to refuse their human rights claims.

Background

2.             The appellants are citizens of Nigeria and are the daughters of the sponsor, who resides in the UK with Indefinite Leave to Remain. The 1 ^st Appellant (A1), born in 2007, is the sponsor's daughter from a relationship with a Ms RA. The 2 ^nd Appellant (A2), born in 2008, is the sponsor's daughter from his marriage to Ms FO. The appellants are half-sisters. The sponsor left Nigeria in 2010, when both appellants were living with their respective mothers.

3.             It is A1's case that she went to live with the sponsor's brother in 2021 after her step-father did not wish to share a house with A1 as she is a Christian.

4.             It is A2's case that she went to live with the sponsor's brother in 2019 after her mother had married a man who became abusive to A2.

5.             Both appellants say that their father has had sole responsibility for them since they went to live with his brother, in 2021 and 2019 respectively. They also say that they have been living in difficult and overcrowded conditions at their uncle's home.

The Respondent's decision

6.              In decisions dated 19 January 2023 the respondent refused the appellants' applications made on 14 September 2022 for entry clearance to join their father, the sponsor, in the UK.

7.              Within each refusal letter, the respondent accepted that the sponsor was biologically related to each appellant but was not satisfied that the sponsor held sole responsibility for them. The respondent noted that the evidence with regards to their circumstances had been documented purely to support their application for entry to the UK and that there was no contemporaneous evidence with regards to their circumstances, their relationship with their biological mothers or the circumstances of the uncle.

8.              The respondent was not satisfied that the sponsor had sole responsibility for them and the applications were refused as the requirements of paragraph 297(i)(e) of the Immigration Rules had not been met.

9.              The respondent did not accept that there were any serious and compelling or other considerations which made their exclusion undesirable and the applications were also refused under paragraph 297(i)(f).

10.          As regards Article 8, the respondent did not accept that they had family life with the sponsor or in any event was satisfied that the decision to refuse was proportionate under Article 8(2) of the ECHR.

11.          In a review document dated 28 March 24, the grounds of refusal were maintained. The respondent noted that there was no independent evidence which shows that the children are living with their uncle rather than their mothers. The respondent stated that it was not clear why the sponsor waited until 14 September 2022 to make the applications if the appellants had lived the sponsor's brother and his wife and 3 children in a one-bedroom house since 2019 and 2021 respectively.

The appeal before the First-tier Tribunal

12.          The appellants appealed to the First Tier Tribunal. The appeals came before the First Tier Tribunal Judge for full hearing on 05 July 2024. The appellants were represented by Ms Wass of Counsel and the respondent was represented by Mr Swaby, a Home Office Presenting Officer. The sponsor gave oral evidence and was cross-examined. The judge heard submissions from both representatives.

13.          The judge refused the appellants' appeals for the reasons set out in a decision dated 22 July 2024.

The appeal to the Upper Tribunal

14.          The appellants sought permission to appeal on two grounds. The first ground can be summarised as failing to consider important WhatsApp messages that supported their case and drawing adverse inferences from other WhatsApp messages on which no explanation was sought from the sponsor at the hearing. The second ground can be summarised as making a material error of fact on the evidence, or failing to take into account the oral evidence. The grounds plead that the judge erred in stating that the sponsor's oral evidence was that A1's mother and stepfather were living together since 2014 and married in 2020 and that this was inconsistent with A1's statement, which suggested that they married and then began living together and that both events were close in time. A note of the evidence provided during cross-examination was set out within the grounds for permission to appeal, and it was argued that this showed that "[T]he evidence of both the Sponsor and A1 confirms that the subject of living together and marriage seems to have arisen in 2020." The second ground also relied upon a failure to provide proper reasons for rejecting the sponsor's explanation, given in his oral evidence, for why there was limited documentary evidence of his claimed money transfers to the appellants.

15.          On 20 September 2024 the First Tier refused the appellant permission to appeal but on 07 October 2024, the Upper Tribunal granted permission to appeal on both grounds. On ground one, it was arguably procedurally unfair for the judge to have relied on an adverse indicator of credibility that had not been put to the appellant for comment. Ground 2 was likewise found to establish an arguable error of law 'if the note of evidence therein is correct'. On 15 October 20204, specific directions were issued to the respondent to notify the appellants within 21 days if she disputed the accuracy of the note of evidence contained within the grounds. No such notice was sent by the respondent.

16.          The hearing on 11 March 2025 was conducted by CVP videolink. We all had the benefit of a composite appeal bundle made up of 444 pages. There was a preliminary issue as the Appellant's solicitors had served a handwritten note from Counsel's notebook and a witness statement from Ms Wass dated 05 August 2024 and was seeking to rely upon the same at the appeal hearing. These documents had not been sent to the Upper Tribunal but on Ms Rushforth agreeing to admission of the evidence and informing the Upper Tribunal that the contents of the handwritten note were agreed, we arranged for the documents to be emailed to the Upper Tribunal and we had sight of the same.

17.          We heard submissions from both representatives, Ms Norman and Ms Rushforth.

18.          We reserved our decision which we now give.

Discussion

19.          In deciding whether the judge's decision involved the making of a material error of law, it is helpful to remind ourselves of the principles set out within the case law and in particular in Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at [26]. We remind ourselves that the FTT is a specialist fact-finding tribunal and that where a relevant point or evidence was not expressly mentioned by the FTT, the UT should be slow to infer that it had not been taken into account. Further, when it comes to the reasons given by the FTT, the UT should exercise judicial restraint and not assume that the FTT misdirected itself just because not every step in its reasoning was fully set out, as recently confirmed by the Court of Appeal in Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51].

20.          We also remind ourselves of paragraphs 5 and 6 of the SPT Practice Direction on Reasons for decisions dated 04 June 2024 which is consistent with the caselaw on sufficiency of reasons for decisions and states as follows:

5.        Where reasons are given, they must always be adequate, clear, appropriately concise, and focused upon the principal controversial issues on which the outcome of the case has turned. To be adequate, the reasons for a judicial decision must explain to the parties why they have won and lost. The reasons must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the main issues in dispute. They must always enable an appellate body to understand why the decision was reached, so that it is able to assess whether the decision involved the making of an error on a point of law. These fundamental principles apply to the tribunals as well as to the courts.

6.        Providing adequate reasons does not usually require the First-tier Tribunal to identify all of the evidence relied upon in reaching its findings of fact, to elaborate at length its conclusions on any issue of law, or to express every step of its reasoning. The reasons provided for any decision should be proportionate, not only to the resources of the Tribunal, but to the significance and complexity of the issues that have to be decided. Reasons need refer only to the main issues and evidence in dispute, and explain how those issues essential to the Tribunal's conclusion have been resolved.

21.          We are not satisfied that the appellant's first ground has been made out. At [26], the judge noted that he had been provided with WhatsApp messages from 03 July 2023 onwards between the appellants and sponsor. He specifically noted an exchange dated 01 October 2023 wherein the sponsor asked A2 to tell her mother to call him. A2 replied that her mother was not at home and was still at church. The judge found that 'this appears to fly in the face of the assertion that A2 no longer lived with her mother given that A2 was at her mother's home when the sponsor contacted her and that the sponsor contacted A2 asking where her mother was.' In submissions Ms Norman said that one can see from the handwritten note of the evidence that no questions about this WhatsApp exchange were put to the sponsor at the hearing. She submitted that this was both procedurally unfair and material, because the whole of the judge's finding that the girls do not live with their uncle rested upon that WhatsApp message.

22.          We do not agree that it was procedurally unfair for the judge to place weight on the WhatsApp messages in determining the credibility of A2's case that she did not live with her mother. The WhatsApp messages were contained within a bundle of documents submitted by the appellants and was being relied upon by the appellants. Where there is an obvious inconsistency within the appellants' own evidence, we do not accept that there is an obligation on the judge to put such evidence to the sponsor. A judge is entitled to review and weigh up the evidence within the bundle at the time of making the decision. The appellants were represented before and at the oral hearing and the inconsistency ought to have been noted and dealt with during the sponsor's evidence if an explanation for the inconsistency was going to be provided by the sponsor. See, e.g.: Abdi & Ors v Entry Clearance Officer [2023] EWCA Civ 1455 [29]-[30] and Secretary of State for the Home Department v Maheshwaran [2002] EWCA Civ 173 [2004] at [4]-[5]. We therefore find that it was not procedurally unfair for the judge to rely upon an inconsistency in the appellants' evidence without having put it to the sponsor at the hearing.

23.          We have carefully read the WhatsApp messages of 01 October 2023 between A2 and the sponsor. The sponsor asks A2 to tell her mum to call him. A2 responds that her mother is not at home and that she is still at church. The inference that A2 was not only at her mother's home but also living there was reasonably open to the judge on that evidence. There is no error of law in the weight placed on the inconsistency between those messages and A2's case.

24.          Further, whilst the judge does not quote or set out his consideration of the remainder of the WhatsApp messages, including those sent on 20 August 2023, 07 April 2023, or 16 April 2023, we are mindful of paragraph 6 of the 2024 Practice Direction and we are satisfied that the judge is not required to set out each piece of evidence relied upon and give reasons why it has been rejected. The reasons for rejecting the appellants' case that they live with their mother is sufficiently reasoned and based on a range of evidence.

25.          We also do not agree with Ms Norman's submission that the whole of the judge's finding that the girls did not live with the uncle was based on the WhatsApp messages dated 01 October 2023. It is clear from reading the decision as a whole that a number of other findings were made regarding the lack of credibility or plausibility of their account of living with their uncle and not their respective mothers, such as at [25], [27] [28] and [29].

26.          As to Ground 2, we are firstly not satisfied that the handwritten note of the evidence provided by Counsel formed a complete note of the oral evidence at the hearing. For example, at [28] the judge states 'The sponsor speculated that the new husband had been deceptive over his feelings towards A1 until he was married.' This is not within the sponsor's witness statement or other documents and can only be referring to oral evidence heard. However, there is no record of this evidence within the handwritten note but neither is there any challenge in the grounds of appeal that the evidence was not given or has been misunderstood by the judge.

27.          With regard to the question of the sponsor's oral evidence about when A1's mother began living with her husband and when she remarried, we find that the record we have been provided with does not establish that the judge misunderstood that evidence. We note that at page 2 of the 11-page note, it is recorded that the sponsor was asked, "When did you first hear she had someone else?" He answered, "About 2014." The next question was, "In 2014, A would have been about 7. Did you have contact at that time?" He answered "Not on the phone", and then added that he would get his brother to check on her and that he had said the "step-dad" was a Muslim and "wouldn't allow her to go to church".

28.          It is clear from the Presenting Officer's subsequent questions and the lack of any reference elsewhere in the evidence or the decision to the "new man" that nobody at the hearing had understood the sponsor to be suggesting that the relationship that he had become aware of in 2014 was with a different man from the man that she had married in 2020. On the contrary, the note from the hearing shows that the sponsor was later asked to explain "In a relationship from 2014 but took 6/7 years" - presumably why it took 6/7 years for the sponsor to take sole responsibility. He did not query the premise of the question, but explained the difficulties he was having at the time getting settled in the UK and communicating with his family in Nigeria.

29.          We find that it was therefore reasonably open to the judge to understand from this evidence that A1's mother and partner were living together prior to their marriage in 2020. If the handwritten note is accepted, then the evidence before the judge was that A1 had a step-dad in 2014 and that the sponsor had been told in 2014 that that A1 was not allowed to go to church by that step-dad. We consider that it was reasonably open to the judge to understand from this evidence that A1 and her mother were already living with the "step-dad" in 2014. The sponsor's evidence at the hearing was also that A1's mother had married in 2020; counsel's note clearly reads, "2020 - confirmed married". If it is the sponsor's case, which we do not understand it to be, that the step-dad in 2014 is different from the man A1's mother married in 2020, then this is another inconsistency with the evidence of A1, who makes no mention of two step-dads. If there is only one step-dad, then the sponsor's evidence at the hearing can be reasonably understood as that A1's mother was already living with him in 2014 but only married him in 2020. We consider it reasonably open to the judge to find that this was inconsistent with A1's statement that her mother "married and started living" with this man (at an unspecified date), because this describes marriage and living together as being closely related events.

30.          In any event, Ground 2 has not been made out. This is because at [28], the Judge considered the account in the alternative that the couple had not begun living together in 2014. The judge notes here that A1 was said to have been effectively banished from her home because her mother married a Muslim man and there were cultural and religious sensitivities in the household because A1 is Christian. The judge noted the evidence about the start of the relationship (2014) and date of the marriage (2020) and noted the inconsistencies in the evidence relating to the gap between start of the relationship and the date of marriage. The judge found:

"In either scenario it seemed implausible that if A1's step father held such strong religious beliefs about sharing a home with a Christian that these beliefs would not have been aired much earlier in his relationship with A1's mother. Even if 2014 is taken as the starting point of that relationship then that was still 6-7 years before he expressed these beliefs, which appeared to lack credibility."

31.          Therefore, a finding of them having lived together since 2014 or simply having been in a relationship since 2014 is not a material error as the judge considered that in either scenario, the explanation for why the sponsor assumed sole responsibility only in 2020 lacked credibility. We are not satisfied that it has been made out that there is perversity in the finding made, as alleged by the appellant, and we are satisfied that it is a finding that a reasonable judge could have made.

32.          Ms Norman confirmed that the ground of appeal relating to the money transfer evidence is a reasons challenge. We do not accept that the judge failed to give adequate reasons for his rejection of the sponsor's account that he had financially maintained the appellants prior to 2022. At [30], the judge notes that he had been told that the sponsor had been sending money to the appellants for many years and notes that the only transfer receipts were from March 2022 to September 2022 and from March to October 2023. The judge considered the sponsor's explanation for a lack of receipts and gave clear reasons as to why the explanation is rejected. The judge did not accept the sponsor's explanation that he had not kept receipts for pre-March 2022 transfers as he had not been planning to bring the appellants to the UK and did not see the need to keep receipts. This was due to it being inconsistent with the evidence that the sponsor had been gathering evidence for his application from when he had been granted ILR in August 2021. The judge did not need to deal with each part of the sponsor's evidence about the money transfers as specific reasons do not need to be given for rejection of every piece of evidence. The judge gave clear and sufficient reasons for not accepting that the sponsor was financially maintaining the appellants prior to 2022 and these findings were open to the judge on the evidence before him.

33.          Accordingly, for these reasons, we consider that the decision of the First-tier Tribunal did not involve the making of an error of law and we uphold it.

 

Notice of Decision

The decision of the First-tier Tribunal did not involve the making of an error of law and we uphold it.

 

 

S. Rodger

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

Dated 25 March 2025