[2024] UKUT 00064 (IAC)

Having found that the decision of the FtT involved the making of an error on a point of law, together with the FtT’s findings of fact, I have before me the evidence which was before the FtT on which I can re-make the decision in relation to the appellants’ appeals pursuant to section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007. By virtue of section 12(4) of that Act, I may make any decision which the FtT could make if it were re-making the decision and may make such findings of fact as I consider appropriate.

I have already referred to the findings that were made by the Judge. The judge found Mr Duah to be a credible witness.

There is no evidence that the appellants have ever lived with Ms Opoku either before, or after their arrival in the UK. As the judge found previously, Ms Opoku was resident in the UK at the date of the applications for entry clearance. The judge accepted Ms Opoku had provided Mr Duah with the documents necessary to support the appellants applications to join them in the UK. I am prepared to accept that at the date of the applications the appellants were to be joining Ms Opoku (the relevant EEA citizen) in the UK within six months of the date of the application. That much is uncontroversial because the appellants were granted entry clearance and the relevant EUSS Family Permits were issued to them by the respondent.

The question is whether it is proportionate to cancel that leave because since the entry clearance was granted, there has been a change in circumstances that is, or would have been, relevant to the appellants’ eligibility for that entry clearance, such that their leave to enter ought to be cancelled.

The record of the discussions between an Immigration Officer and the appellants upon their arrival in the UK [RB/C2/page 36] records that the appellants claimed they had been in regular contact with their father but “did not really know or had met their step mother Lydia”. When Ms Opoku was interviewed on 17 December 2021 [RB/D2/pages 38 – 41], she said that she had not seen the appellants, she only knew the name of one of the appellants and she did not wish to sponsor the appellants.

The evidence of Mr Duah as set out in his witness statement dated 30 June 2022 was that after the appellants’ applications had been submitted Ms Opoku’s behaviour towards him changed, and when she was told the applications were granted “…her behaviour was awful and I could sense danger for my children because when Lydia is angry, she could do bad and worsen things..”. His evidence was that when he bought the tickets and confirmed the date the appellants would be coming to the UK, her answer was awkward, unwelcome and she told him that she could not go with him to welcome them at the airport. He explains the difficulties that were encountered establishing contact with Ms Opoku when the appellants arrived in the UK and the events leading to their respective interviews. He states that on 21 December 2021, Ms Opoku met the appellants for the last time. There is no reference in the statement to her having ever met the children previously. He claims that on 22 December 2021, Ms Opoku left London for Amsterdam to celebrate Christmas with her own children. It was hoped she would return after Christmas but it appears she did not do so. Mr Duah confirms that he is no longer in a relationship with Opoku, albeit they remain married. He states he cannot trust her to give a truthful account of her actions.

The account set out in the statement of Mr Duah regarding the reservations Ms Opoku demonstrated about the appellants coming to the UK, is consistent with the claim made by Ms Opoku when she was interviewed, that she does not support the applications. Even if she supported the applications for entry clearance when they were first made, it is clear she did not support the applications by the time of the appellants arrival in the UK. I find that by the date of the appellants arrival in the UK, 2December 2021, the appellants application was no longer supported by Ms Opoku and on the evidence before me, I find that the appellants were not joining her in the UK. By 29 December 2021, on the evidence before me, I find that the appellants could not and cannot satisfy the eligibility requirement in paragraph FP6.(1)(d) that they were joining Ms Opoku in the UK.

I find that since the entry clearance was granted to the appellants, there has clearly been a change in the appellants’ circumstances that is, or would have been relevant to the appellants’ eligibility for that entry clearance such that by 29 December 2021, it was open to the Immigration Officer to conclude that it is proportionate to cancel that leave. As to proportionality, the appellants had for a number of years lived in Ghana and were cared for by their mother. There is no evidence that they were not adequately cared for. When the appellants spoke to the Immigration Officer on 2 December 2021, the appellants confirmed they lived with their biological mother in Ghana and that the whole family had dropped them off at the airport. Their mother was pleased to see them go, because she thought they would have a better life in the UK. They said they have no other family here in the UK. In his witness statement, Mr Duah states they hope to remain in the UK to have a family life which they have been missing for many years and to have a good quality education. I have no doubt that the appellants would wish to live in the UK with their father, but that does not equate to a right to do so. The benefit they gain of living with their father is to the detriment of the stability they enjoyed in Ghana, and the relationships and attachments they have to their mother and wider family in Ghana. The appellant’s may wish to benefit from an education in the UK, but again, that does not equate to a right to be educated in the UK, in circumstances where they are unable to meet the rules, and in particular the eligibility requirements as set out in Appendix EU (Family Permit).

It follows that I remake the decision and dismiss the appeal.