Upper Tribunal (IAC) Reported Decisions: January 2020
This is the first video in a new series in which Adam Pipe summarises the reported decisions of the Upper Tribunal Immigration and Asylum Chamber for 2020 tackling them a month at a time. In this video he looks at the reported decisions for January 2020 which deal with evidence from accountants, permission to appeal and British children in deportation and entry clearance cases. The citations, links, and head notes are below:
- The Upper Tribunal can apply rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 of its own motion.
- The use of fraud before the Upper Tribunal constitutes an abuse of process such as to amount to a "procedural irregularity" for the purposes of rule 43(2)(d).
- In a case involving a decision under paragraph 322(5) of the immigration rules, where an individual relies upon an accountant's letter admitting fault in the submission of incorrect tax returns to Her Majesty's Revenue and Customs, the First-tier or Upper Tribunal is unlikely to place any material weight on that letter if the accountant does not attend the hearing to give evidence, by reference to a Statement of Truth, that explains in detail the circumstances in which the error came to be made; the basis and nature of any compensation; and whether the firm's insurers and/or any relevant regulatory body have been informed. This is particularly so where the letter is clearly perfunctory in nature.
- Permission should not be granted on the grounds as pleaded if there is, quite apart from the grounds, a reason why the appeal would fail.
- In its application to a "qualifying child" within the meaning of section 117D of the Nationality, Immigration and Asylum Act 2002, section 117C(5) imposes the same two requirements as are specified in paragraph 399(a)(ii) of the Immigration Rules; namely, that it would be unduly harsh for the child to leave the United Kingdom and for the child to remain.
- In both section 117C(5) and paragraph 399(a)(ii), what judicial decision-makers are being required to assess is a hypothetical question - whether going or staying 'would' be unduly harsh. They are not being asked to undertake a predictive factual analysis as to whether such a child would in fact go or stay.
- Nationality (in the form of British citizenship) is a relevant factor when assessing whether the 'unduly harsh' requirements of section 117C(5) are met. However, it is not necessarily a weighty factor; all depends on the facts.
- The possession of British citizenship by a child with whom a person (P) has a genuine and subsisting parental relationship does not mean that P is exempted from the 'unduly harsh' requirements. Even though the child may be British, it has to be unduly harsh both for him or her to leave with P or to stay without P; not just harsh. Thus, some substantial interference with the rights and expectations that come with being British is possible, without the position becoming one of undue harshness to the child.
1. British citizenship is a relevant factor when assessing the best interests of the child.
2. British citizenship includes the opportunities for children to live in the UK, receive free education, have full access to healthcare and welfare provision and participate in the life of their local community as they grow up.
3. There is no equivalent to s.117B(6) of the Nationality, Immigration and Asylum Act 2002 in any provision of law or policy relating to entry clearance applicants.
4. In assessing whether refusal to grant a parent entry clearance to join a partner has unjustifiably harsh consequences, the fact that such a parent has a child living with him or her who has British citizenship is a relevant factor. However, the weight to be accorded to such a factor will depend heavily on the particular circumstances and is not necessarily a powerful factor.
5. When assessing the significance to be attached to a parent's child having British citizenship, it will also be relevant to consider whether that child possesses dual nationality and what rights and benefits attach to that other nationality.