Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber)
Appeal number: AA/01148/2015

the immigration Acts

Heard at:
Field House

Decision & Reasons Promulgated

On
19 January 2017

24 January 2017

Before

Upper Tribunal Judge Gill

Between

Aftab [K]
(ANONYMITY ORDER NOT MADE)
Appellant

And

Secretary of State for the Home Department

Respondent

Representation:

For the appellant: Ms. T Murshed, of Counsel, instructed by Crown & Mehria Solicitors.
For the respondent: Mr. S. Walker, Senior Presenting Officer.

Decision and Directions
1. The appellant, a national of Afghanistan born on 13 March 1990, appeals against a decision of Judge of the First-tier Tribunal Fox who, in a decision promulgated on 23 November 2016, dismissed his appeal against a decision of the respondent of 9 January 2015 to remove him from the United Kingdom as an illegal entrant, having refused (for reasons given in a decision letter dated 5 December 2014) his asylum claim, humanitarian protection claim and human rights claim.
2. The appellant's appeal was previously heard before Judge of the First-tier Tribunal Geraint Jones QC who dismissed his appeal on asylum grounds, humanitarian protection grounds and human rights grounds. In the course of his decision, Judge Jones stated (at para 42 of his decision) that: "As the appellant's daughter is a British citizen and the alternative country of residence will be Afghanistan, I arrive at the conclusion that it would not be reasonable to expect her to leave the United Kingdom".
3. The appellant lodged an application for permission to appeal to the Upper Tribunal, challenging only the decision of Judge Jones to dismiss the appellant's appeal in relation to Article 8. He was granted permission to appeal.
4. The appeal before the Upper Tribunal was subsequently listed for hearing before Deputy Upper Tribunal Judge Woodcraft. An application was made before Judge Woodcraft for time to be extended in order to lodge an application for permission to challenge the decision to dismiss the appeal on asylum grounds. Judge Woodcraft refused to extend time.
5. Judge Woodcraft concluded that Judge Jones had not erred in law in dismissing the appellant's claims under Articles 2 and 3 and Article 15(c) of the Qualification Directive.
6. In relation to Article 8, Judge Woodcraft accepted that Judge Jones had materially erred in law in reaching his decision to dismiss the Article 8 private and family life claim under para 276ADE and Appendix FM of the Rules and Article 8 outside the Rules.
7. Before me, it was agreed between Ms Murshed and Mr Walker that it was not clear from Judge Woodcraft's decision whether he decided that the finding of Judge Jones, that it was not reasonable for the appellant's daughter to leave the United Kingdom, should stand.
8. Judge Woodcraft remitted the appeal to the First-tier Tribunal ("FtT") limited to the appeal under para 276ADE of the Rules, Appendix FM and Article 8 outside the Rules. He decided that the decision of Judge Jones to dismiss the appellant's asylum claim claims under Articles 2 and 3 of the ECHR and Article 15(c) of the Qualification Directive should stand.
9. The appeal then came to be listed before Judge Fox. The judge had to apply, inter alia, s.117B-D of the Nationality, Immigration and Asylum Act 2002. Section 117D defines a "qualifying child" as follows:

"qualifying child" means a person who is under the age of 18 and who-

(a) is a British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven years or more;
10. By the date of the hearing before Judge Fox (31 October 2016), the Court of Appeal had delivered its judgment in R (MA (Pakistan)) v SSHD [2016] EWCA Civ 705. At para 46 of (MA (Pakistan), the Court of Appeal held that the fact that a child has lived in the United Kingdom for seven years or more must be given significant weight. Para 43 of the judgment reads:
"46. ? the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise. Indeed, the Secretary of State published guidance in August 2015 in the form of Immigration Directorate Instructions entitled "Family Life (as a partner or parent) and Private Life: 10 Year Routes" in which it is expressly stated that once the seven years' residence requirement is satisfied, there need to be "strong reasons" for refusing leave (para. 11.2.4). These instructions were not in force when the cases now subject to appeal were determined, but in my view they merely confirm what is implicit in adopting a policy of this nature. After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK. That may be less so when the children are very young because the focus of their lives will be on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child's best interests will be to remain in the UK with his parents as part of a family unit, and that must rank as a primary consideration in the proportionality assessment."
11. At the hearing before me, Mr Walker accepted that, given the reasoning of the Court of Appeal at para 46 of (MA (Pakistan) in relation to children who are qualifying children by reason of having lived in the United Kingdom for seven years or more, the fact that the appellant's child was a qualifying child by reason of her British citizenship must likewise be given significant weight. Of course, the fact that a child is a British citizen is not determinative. Nevertheless, Mr Walker accepted that, in the balancing exercise that must be conducted pursuant to (MA (Pakistan) in reaching a decision on whether it is reasonable for a British citizen child to leave the United Kingdom, significant weight should be given to the fact that the child is a qualifying child.
12. Mr Walker accepted that Judge Fox did not place significant weight on the fact that the appellant's daughter is a British citizen and thus erred in law in reaching his finding that it would be reasonable for the appellant's child to leave the United Kingdom.
13. I am satisfied that Judge Fox did err in law as stated at paras 11-12 above and that this error was material to the judge's decision on the appellant's Article 8 claim under the Immigration Rules and outside the Immigration Rules.
14. I therefore set aside his decision in relation to Article 8 under para 276ADE and Appendix FM of the Rules and Article 8 outside the Rules.
15. In the majority of cases, the Upper Tribunal when setting aside the decision will be able to re-make the relevant decision itself. However, the Practice Statement for the Immigration and Asylum Chamber of the Upper Tribunal at para 7.2 recognises that it may not be possible for the Upper Tribunal to proceed to re-make the decision when it is satisfied that:
"(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal."
16. In my judgment, this case falls within para 7.2(b) notwithstanding the fact that this is the second time that this appeal is being remitted to the FtT. This is because of the extent of the fact finding that is necessary in this particular case. In addition, having regard to the Court of Appeal's judgment in JD (Congo) & Others [2012] EWCA Civ 327, I am of the view that a remittal to the First-tier Tribunal is the right course of action.
17. Ms Murshed accepted that the finding of Judge Jones that it is not reasonable for the appellant's daughter to leave the United Kingdom cannot stand given that Judge Jones did not take the state's interests into account in reaching his decision that it was not reasonable for the appellant's child to leave the United Kingdom contrary to the judgment of the Court of Appeal in (MA (Pakistan). This was because Judge Jones did not have the benefit of the judgment in (MA (Pakistan).
18. (MA (Pakistan) makes it clear that the state's interests must be taken into account in reaching the decision whether it is reasonable for a child to leave the United Kingdom.
19. The appellant must re-serve any documents he wishes to rely upon, even if they have been served previously. None of the bundles previously served will be considered. This is because the documents in the bundles have fallen into some disarray. The appellant must strictly comply with the directions given below.
DIRECTIONS
1. Within one month from the date on which this decision is sent to the parties, the appellant to serve a consolidated and fully paginated bundle which contains:
i. All witness statements to be relied upon, in order of the date of the statements.
ii. any background material and any other evidence to be relied upon.
2. Not less than ten days before the hearing date, the appellant must serve a skeleton argument dealing with the issues to be decided and identifying all material from the background documents he wishes to rely upon. He is on notice that any material to which the judge's attention is not drawn will not be considered.
The appeal to be listed for hearing before the FtT on the first practicable date after 6 weeks from the date on which these directions are sent to the parties.
Notice of Decision

The decision of Judge of the First-tier Tribunal Fox involved the making of errors on points of law such that the decision to dismiss the appeal under para 276ADE and Appendix FM of the Rules as well as Article 8 outside the Rules is set aside.

This case is remitted to the First-tier Tribunal for that Tribunal to re-make the decision on the appellant's appeal under para 276ADE and Appendix FM of the Rules as well as Article 8 outside the Rules, by a judge other than Judge of the First-tier Tribunal Geraint Jones QC and Judge Fox.

Upper Tribunal Judge Gill Date: 24 January 2017