Ortega (remittal; bias; parental relationship)

Factual and Procedural Background

The appeal concerns a decision of the First-tier Tribunal dated 24 November 2017 which refused the Article 8 ECHR claim of the Appellant, a citizen of Ecuador who entered the UK illegally in 2001 using a false passport and remained unlawfully until applying for leave to remain in 2015. The application was based on a relationship akin to marriage with a British national and her British daughter. The Appellant had a criminal conviction for possession of an identity document with intent.

The Secretary of State refused the Article 8 claim on grounds including the Appellant’s unsuitability due to his criminal conviction and illegal entry, failure to meet relationship requirements under the Immigration Rules, and insufficient residence or obstacles to reintegration into Ecuador. The First-tier Tribunal initially dismissed the appeal in 2016, and the Upper Tribunal found errors of law in that decision, remitting the matter for re-hearing. The appeal was reheard in November 2017 and again refused. Permission to appeal to the Upper Tribunal was granted, leading to the present hearing in June 2018.

Legal Issues Presented

1. Whether the First-tier Tribunal Judge exhibited bias in the decision.
2. Whether the First-tier Tribunal applied the correct legal approach to the best interests assessment of the child involved.
3. Whether procedural unfairness arose from the Tribunal’s handling of evidence, specifically the non-viewing of a video interview of the child and reliance on a previous decision that was set aside.
4. Whether the First-tier Tribunal failed to give adequate reasons for discounting the independent social work report.
5. Whether the Article 8 ECHR proportionality assessment was lawful and properly reasoned, including the appropriateness of a comparison made regarding separation from the child.

Arguments of the Parties

Appellant's Arguments

• Alleged bias by the First-tier Tribunal Judge, including adverse language and personal attacks.
• Incorrect legal approach to assessing the best interests of the child.
• Procedural unfairness due to the Tribunal not viewing a video interview of the child despite prior agreement and improper reliance on a previous Tribunal decision that was set aside.
• Failure to provide adequate reasons for discounting the independent social work report.
• The proportionality assessment was flawed and contaminated by the alleged errors and bias, including an inappropriate analogy comparing separation from the child to imprisonment separation.

Respondent's Arguments

• Denied allegations of bias, asserting the decision was adverse but fully reasoned and lawful.
• The appeal was treated as de novo, and the judge made an independent assessment of evidence without adopting previous findings.
• The approach to the child's best interests was not substantively erroneous.
• References to previous decisions and evidence were proper and did not undermine the de novo nature of the hearing.
• The comparison made in the proportionality assessment was a legitimate part of the balancing exercise required under Article 8.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed examination of each ground of appeal, applying established legal principles and relevant precedents.

On the allegation of bias, the court applied the test from Porter v Magill and related authorities, considering whether a fair-minded and informed observer would perceive a real possibility of bias. The court found that robust language used by the First-tier Tribunal Judge, including adverse characterizations of the Appellant, was justified by the evidence and did not amount to bias. Criticisms of the judge’s comments on the Appellant’s offence and relationship with the British national were dismissed as either irrelevant or legitimate factual findings.

Regarding the best interests assessment under Section 55 of the Borders, Citizenship and Immigration Act 2009, the court acknowledged the judge’s statutory interpretation was incorrect but found no material error as the child’s welfare was sufficiently safeguarded in the judge’s substantive assessment. The judge had conducted a thorough evaluation and concluded that the child’s best interests did not require the Appellant to remain in the UK.

On procedural fairness, the court reviewed the dispute over whether the judge had agreed to view a video interview of the child. The judge’s clear statements and hearing record indicated only a transcript was agreed to be reviewed, and thus no procedural error arose. The court also found that referencing evidence from the previous, set-aside First-tier Tribunal decision was permissible as long as the current decision was made independently, which it was.

The court considered the reasons given for discounting the independent social work report and found them adequate and rational. The report was based on unchallenged assertions from the Appellant and his partner and lacked objective evaluation, justifying its limited weight.

Finally, the proportionality assessment under Article 8 ECHR was upheld. The court rejected the claim that the judge’s findings were contaminated by prior errors or bias. The analogy comparing separation from the child to separation caused by imprisonment was deemed a legitimate illustration within the required balancing exercise and did not amount to an error of law.

Holding and Implications

The Upper Tribunal DISMISSED the appeal and upheld the decision of the First-tier Tribunal.

The direct effect is that the Appellant’s claim under Article 8 ECHR is refused and the First-tier Tribunal’s decision stands. The Tribunal found no material error of law, bias, or procedural unfairness warranting interference. No new legal precedent was established; rather, the decision reaffirmed existing principles concerning bias, best interests assessments, procedural fairness, and proportionality in immigration cases involving children.