OA177882013 & ors

In granting the Appellants permission to appeal that decision, First-tier Tribunal Judge Lambert considered that the Appellants� first ground (that argued procedural unfairness in that the judge made findings on an issue concerning the address of the Appellants and who they were living with at the date of application, that had not been in dispute between the parties) as being �both arguable and in the circumstances of this case material to the outcome�.

It was indeed apparent that as submitted by the Appellants, it was at no stage suggested in the refusal of entry clearance, cross-examination or submissions to either of the Sponsors, that the Appellants did not in fact live with their cousin and in that context no further evidence was provided in relation to evidence that was believed to have been accepted.

The Appellants� application for entry clearance was made on the basis that the first two named Appellants were residing with their cousin, that there were no other family members who could assist in their care and that the arrangement was temporary. The appeal forms for the first and second named Appellants identified them as living in one room with their cousin who was unable to look after them any longer. The witness statements provided in support of their appeal further confirmed that the Appellant�s were living with their cousin.

Additionally the Sponsors gave oral evidence that after the death of the Appellants� father they sought temporary care for the children and it was their cousin with whom the children were left. The Appellants� father had died in March 2011.

� Given that this has become the key reason that the appeal failed, fairness demands that the Tribunal ought to have had the benefit of evidence on this point before making its decision. This evidence had and has the potential to materially affect the outcome of the hearing .�