Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00090/2016

THE IMMIGRATION ACTS

Heard at: Field House
On: 19 December 2016
Decision and Reasons Promulgated
On: 14 February 2017

Before
Deputy Upper Tribunal Judge Mailer

Between
Mr Aly Kheder Aly Ayad
no anonymity direction made
Appellant
and

secretary of state for the home department
Respondent

Representation
For the Appellant: Mr C Jacobs, counsel (instructed by JCWI)
For the Respondent: Mr P Singh, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant was born on 30 October 1977 and is stateless.
2. The First-tier Tribunal dismissed his asylum appeal as well as his appeal in respect of his family life, finding that there was no breach of his Article 8 rights under the Rules. In considering the question of proportionality, the Judge had regard to "the overall conduct of the appellant in the UK." He was in agreement with the finding of an earlier (2011) determination that the appellant has failed to show any motivation to return to either of his habitual residences. He has used every means to further his stay [40].
3. On 17 November 2016, Upper Tribunal Judge Hanson granted the appellant permission to appeal. The findings of the Judge in relation to the Article 8 assessment at paragraphs [39-40] are arguably infected by legal error as asserted in the grounds of appeal.
4. In the grounds of appeal, which were prepared by Mr Jacobs, who did not however appear for the appellant before the First-tier Tribunal, it was contended that the Judge erred in his consideration of the Article 8 appeal through failing to take 'significant evidence' into account. He asserted that the Article 8 findings are cursory and inadequate, amounting to two paragraphs in the determination, namely at [39-40].
5. At [39] the Judge found that the contact between the father and the children had been insignificant and is likely to continue to be fraught with difficulty. The Judge stated "? what kind of a role model he would be likely to be is open to question, considering the disrespect he has shown for immigration law and while he remains unable to work." The Judge could find no support for the suggestion at one point that his wife may have mental health problems.
6. With regard to his private life, the appellant has not shown that there would be very significant obstacles to his integration to either Egypt or the UAR if his entry could be secured.
7. The Judge stated at [40] that he accordingly saw no reason to find a breach of his Article 8 rights under the Rules "and no reason to warrant wider consideration under the Razgar tests." Were he to consider the question of proportionality, he would bear in mind the overall conduct of the appellant in the UK. He is in agreement with the findings in the 2011 determination that the appellant has failed to show any motivation to return to either of his habitual residences.
8. In reliance on the grounds of appeal Mr Jacobs submitted that the appellant has two British daughters, Faiza Ayad, born on 21 August 2012, and Sara, born on 15 November 2013, who are accordingly four and three years old respectively. The marriage between the appellant and his wife is no longer subsisting.
9. He noted that the appellant's former wife supports contact between the appellant and his children in principle. He referred to the letter dated 4 January 2013 from the children's mother at page 126 of the appellant's bundle, which was placed before the First-tier Tribunal. There she "confirmed" that the appellant is the father of Faiza and that he visits her on a regular basis. v
10. There was also a document at page 125 dated 18 January 2015 signed by the children's mother, Ms Magdolen Tellesy, confirming that the appellant is in regular contact with "our daughters." He comes to see the children "about two times a week." He also fed the babies, dressed them, changed their nappies, took them for walks and to doctor's appointments and looked after them when she was busy.
11. Mr Jacobs referred to page 108 containing an email from Ms Tellesey dated 24 November 2014 referring to the fact that Safia was crying that day. She had never seen her cry like that. She is going to do what is best for her. She "honestly thinks she needs a routine with you, she has a big problem with goodbye when it comes to you."
12. Mr Jacobs submitted that there was significant evidence produced at page 49, namely, a report 19 June 2016 on the first session of contact between the appellant and the children at the Harrow Contact Centre. The contact was supervised. The appellant saw his daughters there. It is noted that the appellant was friendly and approachable. The mother was upset because the father did not come there in time to pay for the cab. He had however phoned to say that he was ten minutes away on the Tube.
13. At page 24 of that report it is noted that the father was pleased to see his daughters and they were pleased to see him. It is noted that the appellant interacted well with his daughters and that there was lots of laughing. There was one hour of contact.
14. The supervisor informed the children's mother that contact went well. Their mother stated that she would like the father to have another contact near the girls.
15. The appellant informed her after the session that he has met his children in the community twice. The reason it was back in the centre is that he and their mother argued.
16. Mr Jacobs referred to paragraph 47 of the respondent's reasons for refusal where it was stated that the appellant submitted that he is waiting on an agreement to have contact with his children. As at the date of the letter, no agreement had been signed or confirmed. This evidence was requested in September 2015. The respondent stated that there were therefore no other relevant reasons which would justify a grant of leave to remain in the UK. The appellant had however seen the children in March and April. There were three occasions of contact in 2016.
17. The Judge failed to consider the evidence before him from the Harrow Contact Centre. The report which was dated 27 June 2016 confirmed the position just two weeks prior to the hearing.
18. The appellant also stated to the contact officer that he had met the children in the community twice but was required to go back to the contact centre because of arguments with the mother of the children.
19. Mr Jacobs referred to various photographs produced before the First-tier Tribunal showing the appellant's interaction between himself and the children - at pages 56-59.
20. There was also a letter from their mother dated 6 July 2016 confirming that the appellant is a good father to the children. They love him and are always happy to see him (page 59A).
21. Mr Jacobs referred to [39] of the determination where the Judge stated that the contact with their father has been insignificant and is likely to continue to be fraught with difficulty.
22. He submitted that that constitutes an unexplained finding. It is also unsafe following Beoku-Betts: the Judge should have considered the children's rights to have contact with their father. He failed to undertake any consideration of their best interests as a factor which must 'rank higher than any other'.
23. The finding that the contact is likely to be fraught with difficulty also conflicts with the evidence from Ms Tellesy at 59A of the bundle. That also constitutes an unexplained finding and it would appear to relate to matrimonial problems between the appellant and the mother of the children.
24. However, the matrimonial difficulties between their parents, does not constitute a factor that can reasonably determine the best interests of the children or proportionality in Article 8 cases. He accordingly submitted that the approach taken by the Judge was erroneous in that respect as well.
25. Moreover, the fact that the appellant was not in a position to regularise his status had no bearing as to whether or not he is fit to be a parent. That was not the issue.
26. Mr Jacobs referred to paragraph [14] of the decision of Lord Justice Pitchford in the decision of AA (Palestinian Territories) and Secretary of State [2012] EWCA Civ where it was stated that it seemed that the sole basis for the present application is the assertion that notwithstanding his habitual residence elsewhere, statelessness somehow entitles the applicant to choose the UK as the country within which to exercise his right to a private life. That, the Judge did not consider to be an arguable proposition. The least the applicant would reasonably be expected to do is to cooperate with a genuine application for travel documents to Egypt or the UAR pending the course which the secretary of state chooses to take. Should it transpire that the applicant cannot be returned, the position will be different and a fresh application will be open for him for leave to remain. Mr Jacobs represented the appellant before the Court of Appeal. He submitted that it did transpire that the appellant cannot be returned. Accordingly, the appellant has made the current application.
27. The actions of the respondent in seeking to remove the appellant, who cannot be removed, are not proportionate and run contrary to his Article 8 rights and those of the children. Alternatively, they are disproportionate.
28. The Judge erred at [39] in finding that the appellant's presence in the UK is detrimental to the best interests on account of his immigration status. As a stateless man, the appellant's inability to regularise his status or depart from the UK can have no bearing on his relationship with his children or their best interests.
29. Moreover, the finding at [40] that he has failed to show motivation to return to either habitual residences and that he has used his predicament as a means to further his stay is unreasonable and conflicts with the evidence of the expert witnesses, whose evidence was not disputed.
30. Accordingly, he submitted that the appellant's perceived lack of motivation to do that which the domestic law in those countries prevents him from doing renders his removal disproportionate.
31. On behalf of the respondent, Mr Singh very fairly accepted that there had been no reference by the Judge at all to the contact which had taken place between the children, evidence of which was before him.
32. The documents produced at pages 59 A, C and D were not taken into account. Accordingly, a s.55 assessment was not undertaken.
33. In the circumstances, Mr Singh accepted that the decision relating to Article 8 and private life should be set aside and that a fresh decision should be made. Mr Jacobs himself adopted that proposal subject to the preservation of the finding as to the appellant's statelessness.
Assessment
34. The appellant had referred in his witness statement to his attempts to establish contact with the children. This included various meetings that he had with the team manager of the Children and Families Department at Brent Council to discuss the children. He was put in touch with the Harrow Contact Centre. He attached his correspondence with that centre. He also produced a copy of the contract which both he and the children's mother signed.
35. He also stated that he saw the children in April through an informal agreement with their mother They met at the shopping centre. He referred to text messages and photographs taken. He also referred to the contact session at the Harrow Contact Centre on 19 June 2016.
36. He had also provided evidence of his attempts to renew his Egyptian travel documents which had expired in 2006 and as well as going to the UAE embassy in April 2015.
37. The evidence of the appellant's contact with his children, which took place shortly before the date of the appeal hearing, was in the appellant's bundle.
38. Mr Singh has accepted that there was an insufficiency of reasoning relating to the consideration of the children's best interests, including contact with their father.
39. Nor is the finding that the contact is likely to be fraught with difficulty sustainable in the light of the evidence from Ms Tellesy at page 59A of the bundle. Finally, it was not disputed that the appellant is stateless. The evidence to that effect from the experts that neither Egypt or nor the UAE will have him back was not challenged.
40. In the event, the reference to the disrespect that the appellant showed for immigration law and that he was not a proper role model for the children was a comment made without proper regard to the fact that the appellant is stateless and is unable to regularise his status or depart from the UK. In any event, that had no bearing on his relationship with his children or their best interests.
41. In the circumstances, I accept the submissions of the representatives that the decision did involve the making of an error on a point of law. I accordingly set aside the decision and in accordance with the joint submissions, I remit the appeal to the First-tier Tribunal (Hatton Cross) for a fresh decision to be made. The instructions to the administration for remitted cases has been prepared. Mr Jacobs stated that no interpreter was required. There would be two witnesses. There would be a time estimate of one and a half to two hours.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law. The decision is set aside and the appeal is remitted to the First-tier Tribunal at Hatton Cross for a fresh decision to be made, before another Judge.
No anonymity direction is made.

Signed Deputy Upper Tribunal Judge C R Mailer 20 January 2017