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

On a remittal from the Upper Tribunal, the error of law decision should state clearly whether the appeal is to be remade de novo. If findings are preserved, it should identify both those findings and the issues for remaking.

Apparent bias is assessed from the standpoint of a fair-minded and properly informed observer. Robust adverse findings, if legitimately open on the evidence, do not establish bias. A child’s best interests are a primary consideration, although an error in that respect is immaterial where those interests do not assist the appellant.

A non-biological carer does not ordinarily assume a parental role while a biological parent remains involved as a parent. An expert report founded on unreliable factual accounts may properly attract little weight.

The appellant, an Ecuadorian national, appealed against First-tier Tribunal Judge G Jones QC’s decision of 24 November 2017 dismissing his Article 8 ECHR appeal against refusal of leave to remain. His claim relied on his relationship with a British partner and her British child.

An earlier First-tier Tribunal dismissal had been set aside for error of law and remitted. The appellant alleged apparent bias, errors in the assessment of the child’s welfare, procedural unfairness concerning a recorded interview and the use of earlier evidence, inadequate reasons for discounting a social-work report, and a flawed proportionality assessment.

The central issue was whether any of those matters disclosed a material error of law in the remade First-tier Tribunal decision.

1. Appeal dismissed. The First-tier Tribunal’s decision disclosed no material error of law and was to stand.

2. The Tribunal applied the apparent-bias test in Porter v Magill [2001] UKHL 67. A duly informed, fair-minded observer would not see a real possibility of bias merely because the judge used robust language. The adverse conclusions about the appellant’s offending, immigration history, credibility and his partner’s evidence were legitimately open on the material before the judge.

3. The First-tier Tribunal was wrong to prefer its own reading of section 55 to the superior-court guidance that a child’s best interests are a primary consideration: ZH (Tanzania) v SSHD [2011] UKSC 4 and Zoumbas v SSHD [2013] UKSC 74. The error was immaterial. The judge had made a substantive welfare assessment and found that the child’s interests did not favour the appellant remaining in the United Kingdom.

4. There was insufficient evidence that the First-tier Tribunal had agreed to view the child’s recorded interview rather than read its agreed transcript. The absence of a witness statement from the appellant’s former advocate was material. The Tribunal reaffirmed the guidance in BW (witness statements by advocates) Afghanistan [2014] UKUT 00568 (IAC): an advocate who must give evidence may need to be replaced because the roles of advocate and witness are distinct.

5. A de novo remaking did not prevent the judge from considering accurate evidence recorded at the earlier hearing. The judge made an independent assessment. The child’s continuing contact with her biological father was relevant to whether the appellant had a substantive parental relationship. Applying R (on the application of RK) v Secretary of State for the Home Department [2016] UKUT 00031 (IAC), a third party is unlikely to establish that role while the biological parents remain involved as parents.

6. The judge gave rational and adequate reasons for attaching little weight to the social-work report. It depended on accounts from witnesses whom the judge had permissibly found unreliable. The Article 8 balancing exercise was not thereby flawed.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld the First-tier Tribunal decision.

• First-tier Tribunal: Judge G Jones QC dismissed the Article 8 ECHR appeal in a decision issued on 24 November 2017.

• Earlier proceedings: First-tier Tribunal Judge Amin had dismissed the appeal. The Upper Tribunal found material errors of law in a decision issued on 20 April 2017 and remitted the appeal for remaking.