Introduction

The appeal went before the First Tier Tribunal on the 31^st January 2024, Honourable Judge Turner presided over the hearing.  

Case facts

The appeal relates to the appellant’s application to come and have access rights to her British son. The Home Office refused the application, making the claim that the sponsor and the appellant was in a relationship. 

The evidence before the Home Office which contained a previous visit visa refusal, led to them believing that the Home Office did not accept the parent-child relationship. 

Outcome and decision by the Immigration Judge

The appellant was not permitted to give evidence, but the Judge heard evidences from the sponsor. Mr McCauley, Home Office presenting officer was supposed to join and due to technical reasons, filed a late adjournment application. 

ICS Legal strongly argued that the adjournment would be unfair to the appellant, sponsor and their British children. We put forward that the Home Office had the opportunity on the respondent’s review to reconsider their legal position and decided against the matter. The Judge on paragraph 7 of the judgement stated:

“7. I noted the above submissions and concluded that it was in the interest of justice to proceed with this appeal. I refused the application to adjourn. In addition to the points made above, I also noted the responsibility on all parties to ensure that they can join the hearing link in advance of the appeal hearing.”

The appeal legality was that the Home Office sole argument on the relationship between the appellant and the sponsor. In evidence, we demonstrated that the appellant had completed the appropriate language test, the financial and accommodation test was being met. If the appellant and sponsor at the date of application was in a relationship, the application would have been made as a partner and not as parent. 

In the appeal matter, the Judge sat out on both paragraphs (9) and (10) on the following:

“9. I considered that I must resolve the following factual disputes about the Appellant’s ability to meet the requirements of immigration rules: (a) Are the Appellant and her son’s father in a relationship? (b) Does the Appellant meet the relationship conditions? (c) Can the Appellant rely on financial support from a third party for the purposes of the financial requirement, i.e. are there exceptional circumstances in this case? 

10. The parties agree that I must resolve the following factual disputes about other circumstances put forward as relevant to the proportionality balancing exercise: (a) Can the Appellant’s child and ex-partner join her in Sierra Leone? (b) Are there any exceptional circumstances in this case that would render the decision a disproportionate interference with the Appellant’s right to private and family life? (c) What is in the best interest of the Appellant’s children, noting section 55 of the 2009 Act?”

During the cross examination, the sponsor was found to be credible witness, and the Judge accepted the written witness statement from ICS Legal to help and address concerns made by the Home Office in their original refusal letter. The Judge made a sensible approach to the legal matter. 

ICS Legal put forward a detailed skeleton argument, to explain the other issues raised by the Home Office. The first being the financial aspect and it had been demonstrated that the sponsor would support the appellant and there was no exclusion clause. We calculated the sponsor’s income and costs, meeting the policy in place by the Home Office. This was accepted by the Judge “23… for setting out the relevant tests applicable for the financial requirements in this case. These are set out clearly and in detail in the skeleton argument and addendum. I do not propose to repeat these in full in this section.”

The Judge went into considering Article 8 ECHR which we put forward to the Judge. The information and legal clarity provided, did not require the Judge to consider the proportionality test. In the determination, the Judge stated “32. Given that I have found that the Appellant meets the required conditions for the purpose of E-ECP, I am not required to go on to consider proportionality or the conditions under GEN.3.2. Had I done so, I suspect that I would have found exceptional circumstances were present in this case in any event.”

The Judge allowed the appeal in the favour of the appellant. 

Footnote – full details of where to read the details of appeal matter

• Case Name: First Tier Tribunal (Immigration and Asylum Chamber) Appeal Number: HU/58313/2023

• Date published: 2^nd February 2024 

• Jurisdiction: UK. 

• Legislation type: Case-law. 

• Court: First Tier Tribunal - United Kingdom Immigration and Asylum (AIT/IAC)

• Citation: Not published. 

• Bailii URL: Not published.  

• UK Government Tribunal Decisions: Not published.