Automated Summary
Key Facts
The case involves Andrew Kung’u Gichuhi, a Kenyan citizen in the UK without leave, who appealed a removal decision based on his parental relationship with a daughter in the UK. The First-tier Tribunal allowed the appeal, finding a genuine and subsisting relationship despite the relationship being described as 'broken down.' The Upper Tribunal identified a contradiction in this finding and remitted the case for reconsideration due to an error of law.
Issues
- The tribunal identified an error of law in the Judge's inability to reconcile the conflicting conclusions regarding the parental relationship, which undermined the legal basis for the appeal's allowance.
- The Judge did not address whether there were 'very significant obstacles' to the Appellant's relationship with his British partner continuing in Kenya, a requirement under Appendix FM EX.1 (b) of the Immigration Rules.
- The Judge found the Appellant's parental relationship with his daughter was 'genuine and subsisting' despite also concluding the relationship had 'broken down,' creating a contradiction that required legal resolution.
Holdings
- The Upper Tribunal found an error of law in the Judge's contradictory determination that the Appellant's relationship with his daughter was both 'broken down' and 'genuine and subsisting', without reconciling these findings.
- The appeal is remitted to the First-tier Tribunal at Hatton Cross to be heard by another Judge, as the original Judge's decision required reconsideration and further fact-finding.
Remedies
- The appeal was remitted to the First-tier Tribunal at Hatton Cross to be remade afresh and heard by another Judge.
- The original decision was set aside by the Upper Tribunal.
Legal Principles
The Upper Tribunal found an error of law in the First-tier Tribunal's decision due to contradictory findings regarding the 'genuine and subsisting' nature of the Appellant's parental relationship with his daughter. The Judge's conclusion that the relationship was both 'broken down' and 'subsisting' was legally inconsistent, necessitating remittal for rehearing.
Precedent Name
- Begum (Remaking or remittal) Bangladesh
- Naz (subsisting marriage - standard of proof) Pakistan
Cited Statute
Immigration Act 1971
Judge Name
- Upper Tribunal Judge O'Brien
- Deputy Upper Tribunal Judge Seelhoff
Passage Text
- We considered whether the appeal ought to be retained in the Upper Tribunal for remaking... we consider that remittal is appropriate.
- the Judge's finding at [19] that the appellant's relationship with his daughter had 'broken down' is inconsistent with her finding later in that paragraph that it was 'subsisting'. No attempt had been made to reconcile these contradictory findings. It follows that the Judge's decision involved the making of an error of law.
- the Judge found at [16] that there was a genuine and subsisting parental relationship between the Appellant and his daughter, who could not reasonably be expected to leave the United Kingdom. Consequently, the Judge found at [21] that EX.1 (a) of Appendix FM applied. It was not in issue that, if that were the case, the appeal ought to be allowed because that clause in effect waives the requirement for the Appellant to be in the UK lawfully.