Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00317/2016

THE IMMIGRATION ACTS

Heard at FIELD HOUSE
Determination Promulgated
On 17th January 2017
On 30th January 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL
G A BLACK

Between

Mr murat uyran
NO ANONYMITY ORDER MADE
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms M Malhotra Counsel instructed by Kinas solicitors
For the Respondent: Mr C Avery (Home Office Presenting Officer)

DECISION AND REASONS
1. The appellant in this matter is Mr Uyran who is a citizen of Turkey. I shall refer to the parties as the "appellant" and the "Respondent". This is an error of law hearing for consideration as to whether or not there is a material error of law in the decision the First-tier Tribunal (Judge Housego)("FtT"), promulgated on 26.9.2016 in which the FtT dismissed the appellant's appeal against a refusal of his human rights application under the rules and Article 8 outside of the rules.
Background
2. The appellant is a Turkish national who is married to a British citizen wife and they have a British citizen child born on 14.6.2014. He met his wife in Turkey when she was on holiday there. The appellant entered the UK in March 2013 and made a claim for asylum in December 2013. The appellant and his wife married on 18.12.2014. The asylum and human rights applications were refused by the respondent and the appellant appealed. The appeal before the FtT was pursued only on Article 8 grounds and the main issue to be considered was the application of section 117B(6) Nationality, Immigration & Asylum Act 2002 (as amended) to a British citizen child as a "qualifying child" and the reasonableness of the child leaving the UK.
3. The FtT decision set out a wealth of caselaw at [9-29] relied on by the appellant. The recent judgment of MA (Pakistan) was referred to but not in any detail [33]. The facts were set out [46-52] and were not disputed. The FtT found that British citizenship of the child "has weight". The FtT cited ZH (Tanzania) and quoted that "it was not a trump card" [53 & 55]. The FtT also made reference to Trebhowan [56] in terms that in the event that a child was a qualifying child and it found that it was unreasonable for the child to leave the UK, there was no public interest in the appellant's removal. The FtT considered the child in the context of his Turkish heritage [59], his young age and that there was family support in Turkey. It found no evidence of any potential harm coming to the child in Turkey. He would be able to follow the Alevi faith notwithstanding that there is some discrimination. The FtT found his primary interests lay in being cared for by his parents [60]. The FtT concluded that given "the child's deep connection with Turkey it is not unreasonable for him to go there and the point of general significance - that if anyone who fathered a child who had British nationality could stay on Article 8 grounds however he got here - is overwhelmingly against this appeal. The wife of the appellant does not have to go to Turkey, nor take her son if she does not wish to do so: that is her choice to make" [67].
Grounds of application for permission to appeal
4. The three grounds are detailed and in essence complain that the FtT failed to adequately consider and /or place sufficient weight on the best interests of the child and on British citizenship. The FtT failed to identify the benefits and advantages of British citizenship such as education, healthcare, social and cultural aspects and access to state benefits.
Permission to appeal
5. Permission was granted by UTJ Coker who stated that it was arguable that the FtT's assessment of the reasonableness of the British citizen child having to leave the UK was legally flawed in terms of failing to apply the relevant jurisprudence of MA (Pakistan) [2016] EWCA Civ 705 which held that the approach in Treebhawon was wrong in law.

Error of law hearing
Submissions
6. Ms Malhotra expanded on the detailed grounds emphasising the need to give proper consideration to the rights of a British citizen child. Mr Avery submitted that contrary to the observations made by the permitting Judge, the FtT had in fact referred to MA (Pakistan) and there was no indication that the principles therein had not been properly applied. There was evidence before the FtT to justify reaching the decision having found close connections with Turkey.
Discussion and decision re error of law
7. I found that there was an error in law in the decision made by the FtT on the grounds as argued by the appellant. The FtT failed to assess or evaluate the child's rights as a British citizen together with the fact that his mother was also a British citizen. The FtT failed to place sufficient weight on citizenship as a primary consideration.
8. I set aside the decision. I went on to hear submissions from both representatives before remaking the decision.
Re making the decision Discussion and conclusion
9. The brief submissions from Ms Malhotra were in essence the same as the grounds. She submitted that significant weight must be given to the rights of a British citizen child rather than to focus on the heritage of that child and his mother. She relied on MA (Pakistan) at [44] and the respondent's own guidance in the Immigration directorate Instructions re family migration - Appendix FM children - 1.0 (b) 11.2.3. which is set out below;
"11.2.3. Would it be unreasonable to expect a British Citizen child to leave the UK?
Save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British Citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child. This reflects the European Court of Justice judgment in Zambrano.
The decision maker must consult the following guidance when assessing cases involving criminality:
Criminality Guidance in ECHR Cases (internal)
Criminality Guidance in ECHR Cases (external)
Where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case must always be assessed on the basis that it would be unreasonable to expect a British Citizen child to leave the EU with that parent or primary carer.
Appendix FM 1.0 Family Life (as a Partner or Parent) and Private Life: 10-Year Routes August 2015
In such cases it will usually be appropriate to grant leave to the parent or primary carer, to enable them to remain in the UK with the child, provided that there is satisfactory evidence of a genuine and subsisting parental relationship.
It may, however, be appropriate to refuse to grant leave where the conduct of the parent or primary carer gives rise to considerations of such weight as to justify separation, if the child could otherwise stay with another parent or alternative primary carer in the UK or in the EU.
The circumstances envisaged could cover amongst others:
criminality falling below the thresholds set out in paragraph 398 of the Immigration Rules;
a very poor immigration history, such as where the person has repeatedly and deliberately breached the Immigration Rules.
In considering whether refusal may be appropriate the decision maker must consider the impact on the child of any separation. If the decision maker is minded to refuse, in circumstances where separation would be the result, this decision should normally be discussed with a senior caseworker and, where appropriate, advice may be sought from the Office of the Children's Champion on the implications for the welfare of the child, in order to inform the decision.
Where the applicant has made an application under the family and/or private life Immigration Rules, the application must:
a) be considered under those Immigration Rules first;
b) where the applicant falls for refusal, the decision maker must go on to consider whether there are any exceptional circumstances that would warrant a grant of leave to remain outside the Immigration Rules; and
c) where the applicant falls for refusal under the Immigration Rules and there are no exceptional circumstances, and where satisfactory evidence has been provided that all of the following criteria are met, the case must be referred to European Casework for review:
i. the child is under the age of 18; and
ii. the child is a British Citizen; and
iii. the primary carer (care responsibilities and court orders are examples of evidence) of the child is a non-EEA national in the UK; and
iv. there is no other parent/guardian/carer upon whom the child is dependent or who could care for the child if the primary carer left the UK to go to a country outside the EU.
The originating decision maker should not issue a decision on the Immigration Rules application whilst awaiting this Zambrano decision.
The originating decision maker must not grant leave outside the Rules because they believe the applicant has a Zambrano right, but must instead always refer the case to European Casework for them to review and determine the case under EU law if the criteria above are met."
10. Mr Avery relied on the submissions made by the Home Office Presenting officer at the FtT, and as set out at paragraph 43 of the decision. I reserved my decision.
Discussion and decision
11. As a starting point I remind myself that the appellant has not met the requirements of the Immigration rules as a parent or a partner under Appendix FM. The application as a partner failed because the appellant did not show that he came with in the definition of partner. As to parent the appellant did not meet the requirements under E-ECPT 2.3(a) & (b) as he was not a sole carer. The provisions under paragraph 276ADE were not met for private life. The respondent found no exceptional circumstances to justify consideration of Article 8 outside of the Rules.
12. I consider only Article 8 outside of the Rules. It is clear that the FtT did make reference to the decision of MA (Pakistan) although there was no detailed discussion or analysis of the principles or of its impact on Treebhawon [53 & 56]. MA (Paksitan) held that the wider public interests were applicable and that Treebhawon was wrong to focus on the restricted public interests of the child.
13. Although not pleaded in the grounds, I am satisfied that the FtT erred (although not materially) by consideration of the rules in so far as it applied EX1. EX 1 is applicable only to situations involving a single parent, which is not the case here. The relevant provisions are section 117B(6) of the 2002 Act (as amended) in the context of Article 8 ECHR, outside of the Rules. The principles and approach to the assessment of "reasonableness" are now advanced in MA (Pakistan) although the main focus is on children qualifying on the basis of seven years residence in the UK. The second criteria for a qualifying child is of course that the child is a British citizen. The Court considered this briefly at [44 & 45] emphasising the significant weight to British citizenship and where section 117B(6)(ii) is established this is a significant factor leaning in favour of leave to remain being granted. This approach is consistent with the guidance produced by the respondent and cited by Ms Malhotra. In other words there must be strong reasons for refusing leave.
14. The FtT found that there was family life. In the event of the removal of the appellant there would be an interference with family life as the couple would not be able to live as a family with their child. The interference is lawful. In considering proportionality it is necessary to carry out a balancing exercise looking at factors British citizenship ZH (Tanzania), where the best interests of the child lie (Zoumbas v SSHD [2013]) UKSC 74 and the statutory provisions as to public interest under section 117B(6) 2002 Act (as amended) which states that where the child is a qualifying child as a British citizen and it is not reasonable for the child to leave the UK, there is no public interest in removal of the parent. In considering the public interest the Tribunal can consider the wider public interest in EV (Phillipines) and MA (Pakistan). The fact of the child having British citizenship is a significant starting point in favour of leave being granted. On the evidence I agree that the best interests of the child lie in living in the UK with both parents. There was little evidence before the FtT to show that there would be any major change to the child's life were he to live in Turkey in terms of education, religion and social and cultural ties. The FtT considered that in Turkey the child could face discrimination as a result of his faith as an Alevi but found this not to be of significance [62]. The FtT made much of the child's Turkish heritage and "deep" connection with Turkey rather than looking at his British citizenship and the fact that his mother was born in the UK and had never lived in Turkey. In reality the child himself has limited connection with Turkey; he has visited as a young baby for a holiday with his mother and obviously the appellant is Turkish and has strong family ties. The child started nursery school in the UK, developed family relationships in the UK where both parents have extended family members. His mother works part time and as a British citizen is entitled to receive state benefits. There was no evidence to show that there would be damage to the child if separated from his father.
15. His father has a strong connection in Turkey where he has lived for most of his life and where he has family and support. His mother has some connection with Turkey but she does not wish to live there and has never lived there. She has visited for holidays and gave no explanation for why she would not be able to move there in order to maintain the family unity. Both parents have decided not to apply for Turkish citizenship for their son because it imports onerous requirements such as military service. The child would not face any level of harm living in Turkey. There would be no major issue with language as both parent speak Turkish/Kurdish and the child can easily learn a new language. There were no factors of significance other than his British citizenship that led me to conclude that his interests lie in remaining in the UK with both parents to care for him. He would not be forced to leave the UK as a result of the appellant's removal because his mother, who is his primary carer, can look after him in the UK.
16. In considering reasonableness I consider the wider public interests and in this regard I accept the submissions made by the respondent as set out at [43] of the FtT decision. I am satisfied that the wider public interest in immigration control outweighs the interests of the child and his rights as a British citizen. The parties clearly had a choice when they decided to marry and to have a child knowing that the appellant had no lawful leave and no right to remain in the UK. The appellant does not meet the Immigration rules and there is no breach of policy on the part of the respondent. In the short term the appellant could return to Turkey from where he can apply under the rules for leave to enter as the husband/father of a British citizen. In that instance his wife and child can choose to go with him for a short period of time or not. Alternatively, if the appellant is removed to Turkey, in the longer term his wife and child can choose to move to Turkey to live with him and it would not be unreasonable for the child to do so. The public interest in immigration control is based on the father's poor immigration history whereby he entered the UK and fabricated a claim for asylum, and then he appealed against the refusal which he then did not pursue [52]. He has remained in the UK with no lawful leave in the capacity in which he now seeks to be granted leave. I am satisfied that there is no evidence to show that he was forced to flee from Turkey in fear of his life. There was no evidence to support the claim that the marriage was disapproved of by the wife's family in Turkey and the FtT found this was not believable [48]. The child is of an age where he can easily adapt to a change of environment or to living new country as part of his family and where the evidence is that his circumstances would not vary greatly nor that the move would constitute a significant breach of his rights as a British citizen.

Decision
17. The appeal is dismissed and the decision of the FtT is upheld.

Signed Date 26.1.2017

GA Black
Deputy Judge of the Upper Tribunal

NO ANONYMITY ORDER

NO FEE AWARD

Signed Date 26.1.2017

GA Black
Deputy Judge of the Upper Tribunal