Victor Omar Ortega v The Secretary of State for the Home Department

This is an appeal against the decision issued on 24 November 2017 of First-tier Tribunal Judge G Jones QC which refused the Articl e 8 ECHR appeal of Mr Ortega .

The appellant is a citizen of Ecuador and was born on 1 June 1979. He claims to have come to the UK in January 2001 using a false Spanish passport. Having entered illegally he remained unlawfully until he made an application for leave to remain on Article 8 ECHR grounds on 14 January 2015. The application was based on a relationship akin to marriage with Ms Jexi Falcones, a British national, and he r British daughter, A , born on 14 October 2006.

On 16 March 2015 the appellant was convicted of possessing/controlling an identity document with intent. He was sentenced to a suspen ded imprisonment of six months and a requirement to undertake unpaid work for 120 hours.

On 5 May 2015 the respondent ref used Mr Ortega’s Article 8 ECHR application .

In the decision refusing the Article 8 ECHR claim, t he respondent found that the Immigration Rules were not met. Firstly, the appellant did not meet the suitability requirements of Appendix FM, specifically paragraph S-LTR.1.6. as the appellant’s conviction and illegal entry and residence amounted to conduct such that it was undesirable for him to be allowed to remain in the UK.

Secondly, as he fell for refusal under paragraph S-LTR.1.6., the appellant could not meet the relationship requirements of R-LTRP.1.1(c)(i) or (d) (i) of Appendix FM to the Immigration Rules. Further, the appellant indicated that he and Ms Falcones had begun to cohabit only in November 2014. They had therefore not been living together in a relationship akin to a marriage for two years prior to the application in January 2015 and could not meet paragraph GEN . 1.2 . (iv) of Appendix FM . Failure to meet those requirements meant that the appellant was not entitled t o the benefit of paragraph EX.1 of the Immigration Rules.

Thirdly, t he appellant’s relationship with A did not meet the requirements for leave as a parent. The appellant’s inability to meet the suitability requirements prevented him from doing so. A was not his child so he could not meet paragraph E-LTRPT.2.2 of Appendix FM . In any event, h e did not have so le responsibility for A and cohabited with her mother, precluding the requirements of paragraph E-LTRPT.2.3. from being met. He could not come within the definition of a parent set out in paragraph 6 of the Immigration Rules as, even if his claim to be A ’s stepfather was accepted, her biological father was still alive .

The respondent also found that p aragraph 276ADE of the Immigration Rules was not met as the appellant did not have the requisite number of years of residence and could not show that the “very significant obstacles” to re - integration test from paragraph 276ADE(v i) was met given that he lived in Ecuador until the age of 22 and would have retained social, cultural and familial ties .

In the Article 8 ECHR assessment outside the Immigration Rules, as the appellant had only been living with Ms Falcones and A for six months , it was not found that he had developed such strong bonds with them that they would experience unjustifiably harsh cons e quences if he were to leave t he UK. Ms Falcones could be expected to provide for A ’s welfare, with state support if necessary. Any difficulties for Ms Falcones and A were outweighed by the applicant’s conduct in entering and remaining in the UK illegally and his criminal conviction.

The appellant’s appeal to the First-tier Tribunal was initially dismissed in a decision issued on 10 October 2016 by First- tier Tribunal Judge Amin . In that decision First-tier Tribunal Judge Amin did not find the appellant ’s relationship with A was sufficiently strong to meet the provisions of the Immigration Rules or that the appellant ’s return to Ecuador would affect her best interests which were t o be with her mother and retain contact with her natural father. It was accepted that the appellant had a relationship with Ms Falcones but not one that met the provisions of the Immigration Rules or show ed that it would be disproportionate for the appellant to return to E cuador where the relationship was formed at a time when the couple knew that Mr Ortega was in the UK illegally.

Permission to appeal to the Upper Tribunal against the decision of Judge Amin was granted in a decision dated 8 February 2017.

In a decision issued on 20 April 2017, the Upper Tribunal found an error of law and remitted the appeal to be re-made in the First- tier Tribunal . The Upper Tribunal decision identifies in p aragraph 8 that an error of law arose as the First-tier Tribunal had proceeded on the mistaken basis of the appellant’s conviction being for possession of controlled drugs and placed significant weight on that factor. In paragraph 9 the Upper Tribunal found a second error as the First-tier Tribunal referred to the appellant being returned to Jamaica. A third material error of law was found in paragraph 10 wh ere the First-tier Tribunal expressed doubts about the appellant having a genuine relationship w ith Ms Falcones but accepted elsewhere in the decision that he had established a family life in the UK with her and A , the two findings being contradictory.

The remitted appeal came before the First- tier Tribunal again on 14 November 2017, on this occasion before First-tier Tribunal Judge G Jones QC . In his decision issued on 24 N ovember 2017 he found that the appellant had not shown that the Immigration Rules could be met and that it was proportionate for the a ppellant to return to Ecuador.

The appellant again applied for permission to appeal to the Upper Tribunal. Permission was granted in a decision dated 4 January 2018. Thus the hearing came before us on 26 June 2018.

The appellant brought four grounds of appeal against the decision of the First-tier Tribunal.

Ground 1 maintained that the decision of the First- tier Tribunal disclosed bias.

Ground 2 maintained that the First-tier Tribunal had not take n a lawful approach to the best interests assessment of A .

Ground 3 alleged procedural unfairness where the First-tier Tribunal had been asked to watch an interview of A discussing her relationship with the appellant which had been recorded onto a CD but t he decision showed that he had only read a transcript of that interview. This ground also argued procedural error arose as the First-Tier Tribunal had relied on matters from the decision of First- tier Tribunal Judge Amin which had been set aside and not treated the appeal as de novo .

Ground 4 concerned a f ailure to give adequate reasons for placing little weight on the independent social work report .

Ground 5 maintained that the Article 8 ECHR proportionality assessment was infected by the errors of law contained in grounds 1 to 4 and also objected to a comparison of the separation from A as a result of the appellant’s removal to Ecuador being similar to separation from a child arising from the imprisonment of a criminal offender .

The resp ondent provided a r ule 24 letter dated 29 January 2008 maintaining that the allegation of bias was not made out and the grounds were really only a disagreement with an adverse but fully reasoned decision. The judge treated the appeal as de novo , made his own assessment of the evidence and did not adopt the findings of the previous judge . It was open to him take into account evidence recorded in the previous First-tier Tribunal decision. The approach to the best interests of the child was not , in substance, erroneous.

The Upper Tribunal decision of Alubankudi (Appearance of bias) [2015] UKUT 00542 sets out in paragraphs 6 to 8 the “Governing Legal Principles” to be applied when considering an allegation of bias :

Our task is therefore to place ourselves in the position of a “duly informed” hypothetical reasonable observer in order to assess whether the First-tier Tribunal decision discloses an absence of judicial impartiality or real possibility of such. To assist in that task, in addition to the decision and grounds of appeal, we were provided with the view on the allegation of bias of Judge Jones QC , incorporated into a Memorandum dated 21 February 2018. The burden of proof in the allegation rests on the appellant to the standard of the balance of probabilities.

Ground 1 maintained, firstly, that it was obvious, even in the preliminary parts of the decision , that the judge had formed an adverse opinion which “set the tone for the rest of the determination” . We were referred to the paragraph 6 of the decision which was a summary of the Upper Tribunal error of law decision . Detailed reference to the error of law decision was considered necessary as a preliminary issue as it was not found that it was sufficiently clear as to the extent of the re -making that was required.

Judge Jones QC stated as part of the summary of the Upper Tribunal’s reasoning :

We did not find that this statement was capable of showing bias or a material inclination against the appellant. The judge’s comment that, in his view, a drugs offence does not necessarily weigh more heavily than an offence of dishonesty does not form part of his assessment of the appellant’s offence . It is merely a n unnecessary critique of the reasoning of the Upper Tribunal in the error of law decision . It i s immaterial to the judge’s assessment later in the decision of the correct offence committed by the appellant. The grounds allege bias but do not particularise how this comparison of the two offences shows impartiality. The grounds also , quite properly, do not seek to argue that the First-tier Tribunal was not entitled to place significant weight on the applicant’s offence of using a false passport to facilitate illegal entry and a long period of illegal residence. The comment in paragraph 6 may be otiose but it does not disclose bias.

We are mindful that this part of the challenge to the decision of the First-Tier Tribunal arose from a perceived lack of clarity in the error of law decision of the Upper Tribunal on t he extent of the error and exactly what it was that require d re-making. In a n Upper Tribunal error of law decision that remits an appeal to the First-Tier Tribunal , a clear indication should be given if the appeal is to be re-made de novo. If that is not the case, the error of law decision should set out clearly the issues which require re-making and any preserved findings of particular relevance to the re-making of the appeal.

Ground 1 goes on to criticise the description of the appellant in paragraph 45 of the decision as displaying “criminal tendencies and lack of moral fibre”. The comment was made as part of the assessment of A ’s best interests, the view of the First- tier Tribunal being that they were not well-serve d by being exposed to someone with the appellant’s profile. The grounds maintain that this wording was a “very personal attack” and “indicative of the overt bias” of the First- tier Tribunal.

Judge Jones QC comm ents on this submission in the third paragraph of the Memorandum , stating:

Albeit it might be prefera ble for criticism of the appellant to be expressed in more temperate language, in our judgment the First- tier Tribunal was entitled to find the appellant’s profile to be highly negative and for this to be a legitimate factor in the best interests assessment. I t is not disputed that it was open to the First- tier Tribunal to form an adverse view of the appellant as a result of his offending and immigration history. That the judge did so and expressed this finding in “robust” language is not something capable of showing bias.

Ground 1 also m aintained that bias was shown in the finding of the First-tier Tribunal in paragraph 39(x) that Ms Falcones had used deception when obtaining her British citizenship . Judge Jones QC said this at paragraph 39(x):

The grounds of appeal maintain that there was “ absolutely no evidence ” to allow such a conclusion to be reached and that the reasoning on the issue was therefore “unclear”.

We did not find that this submission had merit. Firstly , the manner in which the ground was put did not appear to us to set out a bias challenge but was an argument that th e finding on the use of deception was irrational , being unsupported by evidence or that pr ocedural unfairness arose as the point was not put to the appellant and Ms Falcones at the hearing .

Secondly, it not correct that there was no evidence capable of supporting the finding of the First- tier Tribunal judge on Ms Falcones’ use of deception . On page 2 of 9 of the refusal letter dated 5 May 2015 the respondent set out i nconsistencies in the couple’s evidence about their history. The application maintained that they had been in a relationship since 2011 . At the same time, Ms Falcones submitt ed an application for indefinite leave to remain as the spouse of a B ritish citizen in November 2011 which was granted in Mar ch 2012. She made a naturalisation application in April 2013 and submitted her British spouse’s passport in support of that application .

Further, as recorded in paragraph 27 of the d ecision, Ms Falcones was cross-examined at the hearing about how she obtained settlement in 2012 and naturalisation in 2013 on the basis of marriage to a British national but now maintained that she had been in a relationship with the appellant since 2011. Her evidence initially was that she had only lived with her British husband in Ecuador , prior to coming to the UK in 2009. She then gave a different account of having lived with her British husband for 3 months after coming to the UK.

The conclusion drawn from this evidence by Judge Jones QC in paragraph 39(x) wa s a legitimate one. It was open to him to find that the oral evidence showed material reliance on a relationship with a British national at the same time that Ms Falcones and the appellant claimed to be in a relationship. There is no suggestion that any objection was made to the cross- examination on this aspect of Ms Falcones history . The potential implications of the ev idence given by the appellant and Ms Fa lcones were sufficientl y obvious for their legal representative to be ex pected to deal with them either in re-examination or in submissions. A judge is not required to put every potential adverse credibility finding to an applicant or other witnesses in order fo r them to have the opportunity for it to be addressed, particularly where the point is relatively obvious, as here. Aga in, albeit expressed in robust terms, the First- tier Tribunal was entitled to draw an adverse inference on Ms Falcones’ character and the reliability of her evidence and the grounds do not show that bias played any part in that assessment. We also did not find that the reasoning was irrational or disclosed procedural error.

Fo r these reasons we did not find th a t the allegations of bias in Ground 1 were made out. Pu tting ourselves in the position of the hypothetical observer , duly informed, the decision does not show improper impartiality but conclusions which , albeit strongly expressed, were legitimately open to the judge on the material before him.

S ection 55 of the Borders, Citizenship and Immigration Act 2009 provides:

Ground 2 objects to the comments of the First-tier Tribunal i n paragraph 36 of the decision on the correct legal approach to the assessment of A ’s best interests.

Judge Jones QC says this at paragraph 36:

We acce pt that it is not correct for a First-tier Tribunal Judge to pref er a different interpretation of the statute to that set down by the superior courts , for example, the Supreme Court in ZH (Tanzania) v SSHD [2011] UKSC 4 and Zoumbas v SSHD [2013] UKSC 74 , both providing that the best interests of a child rank as a primary consideration in decisions concerning the child.

However, notwithstanding the judge’s objection in paragraph 36 to the guidance of the superior courts on the primacy of a child’s best interests , he went on to conduct a substantive assess ment of A ’s best i nterests in paragraph 44:

The judge also commented in paragraph 45 that A ’s best interests were not well-served by exposure to someone of the appellant’s poor character, those comments being discussed above at [28] to [30].

The decision therefore shows that the First-Tier Tribunal conducted a best interests assessment. The conclusion was that the appellant’s removal was not a significant factor capable of undermining A ’s best interests which were to continue to be cared for by her mother in the UK. An assessment of A ’s best interests did form part of the Article 8 balancing exercise, therefore. If there was a failure to take them as a primary consideration, as is indicated by the judge’s comments at paragraph 36, that was an error. It was not a material error, however, as, weighing A ’s best interest s as a primary factor could not assist the appellant since those interests did not lie in his remaining in the UK.

Ground 3 comprises two limbs. The first concerns a dispute as to whether the First-tier Tribunal Judge agreed that after the hearing and prior to making the decision he would watch a CD of an interview with A discussing he r relationship with the appellant. The material before us shows a clear disagreem ent as to what was said on this matter at the hearing. The judge sets out at paragraph 32:

Judge Jones QC is equally clear on the second page of the Memorandum under the heading “G round 3 ” that the agreement at the end of the hearing was not that he should view the CD but that he should read the transcript, that he did so and made a note to that effect . We consulted the record of pro ceedings which shows that note on page 6, “Transcript SB 6-9 READ A ’s Ev (sic) ”.

We also noted that the Tribunal file contains an application from the legal representatives prior to the hearing before the First-tier Tribunal requesting that video facilities be made available in order for the CD to be viewed. We accept that this provides some support to the grounds arguing that the CD was considered to be an important piece of evi d ence which the judge should see.

There is no record of proceedings or witness statement from the legal representative for the appellant before the First- tier Tribunal hearing . Accordingly, in light of the clear comments by the First-t ier Tribunal judge and his note in the record of proceedings, there is insufficient evidence to support the argument that the First- tier Tribunal agreed to view the video and did not do so. The submission that a procedural error arose as a result cannot have merit, therefore.

The material part played in this decision by t he absence of a witness statement from the appellant’s legal representative before the First- t ier Tribunal shows the continuing relevance of the guidance on the importance of giving consideration to the provision of such a statement when bias or procedural error is alleged as set out in BW (witness statements by advocates) Afghanistan [2014] UKUT 00568 (IAC) and the indication at paragraph (v) of the headnote of that case that:

The second limb of Ground 3 concerns references by Judge Jones QC to the determination of First- tier Tribunal Judge Amin which was set aside to be re-made. It is undisputed that the judge clarified at the outset of the hearing that the appeal before him was de novo ; see paragraphs 12 and 13. It is argued for the appellant that this prohibited the First-tier Tribunal from referring to that decision and to the evidence given at the original hearing. The appellant objects in particular to the references to the previous decision in paragraphs 5, 6, 17, and paragraphs 39 (viii), (ix) and (xiii).

On examination, it did not appear to us that any of these references to the decision the first hearing before the First-tier Tribunal could be said to show that the hearing before Judge Jones QC and the decision were not made de novo or that impr oper reference was made to the earlier decision. As above, a clear indication was given that the appeal was to be decided de novo . Nowhere do the grounds identify a finding from the earlier decision that was followed or adopted by the judge here.

The reference at paragraph 5 to the “ Devaseelan principles” was merely a record of the submission of the appellant’s representative that those principles did not apply here. The reference in paragraph 6 only identifies the error in the earlier decision concerning the appellant’s conviction. In paragraph 17 the judge refers to the earlier appeal as a “failed appeal”. That is simply statement of fact on which nothing turns. The same is so regarding the r eference in paragraph 39(xiii) to the marriage of the appellant and Ms Falcones taking place six weeks after the decision of Judge Amin .

In paragraph 39(viii) and (ix) Judge Jones QC says this:

The appellant’s relationship with A is the high point of his case. The role played by A ’s biological father was an important part of the assessment of whether the appellant could be said to have a substantive relationship with her .

As stated in paragraph 44 of R (on the application of RK) v Secretary of State for the Home Department (Section 117B(6): “parental relationship”) IJR [2016] UKUT 00031 (IAC), if a non-biological parent (“third party”) caring for a child claims to be a step-parent, the existence of such a relationship will depend upon all the circumstances including whether or not there are others (usually the biologically parents) who have such a relationship with the child also. It is unlikely that a person will be able to establish they have taken on the role of a parent when the biological parents continue to be involved in the child’s life as the child’s parents.

The grounds do not s uggest that the record of the evidence from Judge Amin’s decision concerning contact with A’s biological father relied u pon in the decision of Judge Jones QC was in any way inaccurate. The judge was therefore entitled to take into account all of the evidence that was before him on that issue including that given before Judge Amin as long as he made an independent decision on that evidence. That independent reasoning is manifestly present here in paragraph s 39 (viii) and (ix).

It was therefore our conclusion that G round 3 had no merit.

Ground 4 maintains that First-tier Tribunal Judge Jones QC failed to give adequate reasons for rejecting the evidence of the independent social worker, Hannah Pri n ce. Judge Jones QC comments on this at paragraph 34:

Judge Jones QC goes on in paragraph 39(xi) to state as follows:

Th is assessment of the independent social worker report of Ms Prince was made in the context of the evidence as a whole. Judge Jones QC found that the appellant and Ms Falcones had given significantly inconsistent and unreliable evidence on the history of their own relationship, on Ms Falcones’ relationship with her first husband, on the appellant’s relationship with A and her contact with her biological father. The appellant’s reliability as a witness was also found to be undermined by his history of illegal entry and residence in the UK and reliance on a false passport.

We find that the judge was entitled to assess the social work report s and the evidence given to Ms Prince in the context of those other , adverse aspects of the evidence and to find that Ms Prince’s report, albeit prepared in good faith by a professional witness , did not attract weight. Nothing indicates that Ms Prince was aware of the discrepant history of the relationship between the appellant and Ms Falcones , Ms Falcones’ immigration history or the inconsistent evidence on A ’s contact with her biological father. Other than a reference to “the absence of h er biological father” on page 9, Ms Prince’s report is silent on the question of A ’s relationship with her biological father, an important factor when assessing her relationship with the appellant ; see again R (on the application of RK) .

We therefore found that the First- tier Tribunal gave adequate and rational reasons for placing little weight on the social work evidence.

Ground 5 maintains that the Article 8 ECHR proportionality assessment :

Ground 5 also object s to the comparison i n paragraph 45 of the appellant’s separation from A on his removal to Ecuador to the separation of a child from a parent serving a prison sentence. The grounds argue that the analogy was incorrect and acted to “blur an already extremely confused proportionality assessment.

It is not our judgement that the comparison drawn was inaccurate or confusing. Judge Jones QC goes on to explain the purpose of the com parison. stating:

We therefore did not find that G round 5 had merit.

It is therefore our conclusion that the grounds challenging the decision of First-tier Tribunal do not show a material error of law .

The decision of the First-tier Tribunal does not disclose a material error on a point of law and shall stand.