Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03632/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 11th August 2016
On 16th August 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

[T O]
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr A McVeety (Senior Home Office Presenting Officer)
For the Respondent: Mr M Schwenk (instructed by Greater Manchester Immigration Aid Unit)

DECISION AND REASONS

1. This is an appeal to the Upper Tribunal, with permission, by the Secretary of State in relation to a Decision and Reasons of Judge Holt promulgated on the 13th May 2016 by which she dismissed the Respondent's asylum and humanitarian protection claim but allowed it on Article 8 grounds.

2. For the sake of continuity and clarity I will continue to refer to [TO] as the Appellant and the Secretary of State as the Respondent in this decision.

3. The Appellant is a citizen of Nigeria born on [ ] 1972. She has a dependent husband and 4 dependent children all born in the United Kingdom, on [ ] 2006, [ ] 2007, [ ] 2009 and [ ] 2014 respectively.

4. The Appellant had claimed asylum on the basis that her daughters would be at risk of FGM if returned to Nigeria and also that her husband had a gay relationship with a powerful man in Nigeria.

5. Judge Holt expressed herself not remotely satisfied that the asylum claim had any merit or was credible.

6. There has been no challenge by the Appellant to those findings.

7. The Judge went on to consider Human Rights. She referred to having seen copious evidence about the children's, and particularly the two eldest daughter's, private lives outside the family, particularly in relation to the fact that they are thriving in school.

8. She went on at paragraph 23 to find that the two eldest children qualified for leave to remain in the United Kingdom pursuant to paragraph 276 ADE (1) (iv) on the basis of their private life in the United Kingdom for over seven years.

9. The Judge went on at paragraph 24 to find that on the basis that the two eldest daughters had been in the United Kingdom for over 8 years the Appellant satisfied Article 8 within the Immigration Rules as a parent under Ex.1 of Appendix FM. She found that the Appellant had a genuine and subsisting parental relationship with her two eldest daughters.

10. At paragraph 25 she agreed with Mr Shwenk's analysis that the Secretary of State had failed to properly consider the best interests of the children as required by Section 55 of the Borders, Citizens and Immigration Act 2009 and at paragraph 26 noted that the eldest child was entitled to British citizenship. However, at that date she had nor formally been granted British citizenship.

11. The Secretary of State's grounds on which Permission to Appeal was granted were that the Judge had only made findings on part of the requirements of both paragraphs 276 ADE and Ex.1. She had also only considered part of the requirements of the Nationality, Immigration and Asylum Act 2002. Nowhere in the decision had the Judge considered whether it was reasonable for the children to leave the United Kingdom. That is a requirement contained in 276 ADE, Ex.1 and also section 117(b).

12. On that basis I agree with the Secretary of State that the Judge made an error of law. She did not anywhere explain why it was unreasonable for the children to leave the United Kingdom or give any consideration to that matter. I found that to be particularly pertinent given case law and in particular the recent case of MA (Pakistan) [2016] EWCA Civ 705 which sets out in great detail how the Tribunal is to assess reasonableness.

13. On that basis I set aside the Judge's findings in relation to Article 8.

14. Both representatives agreed I should go on to decide the case immediately. In order to allow Mr McVeety to consider documents that were missing from his bundle and to allow Mr Schwenk to deal with other matters he had in Court, I set the matter aside until the afternoon.

15. When the hearing resumed I heard oral evidence from the Appellant. I also received into evidence, with the consent of Mr McVeety, copy documents, including the eldest child's British Passport issued to her on 9th June 2016.

16. Mr Schwenk also provided me with a copy of the Immigration Directorate Instruction, Family Migration: Appendix FM section 1.0b Family Life (as a Partner or Parent) and Private Life: 10 year Route dated August 2015. He referred me to 11.2.3 which states:-

"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 the British child to leave the EU, regardless of the age of that child. This reflects a European Court of Justice Judgement in Zambrano."

Despite the fact that recent case law, the most recent being MA, has addressed the question of reasonableness and the fact that the various provisions referred to above indicate that even where a child is British, reasonableness must be assessed, the Secretary of State's own instruction is that unless criminality is involved it would not be reasonable to remove a British child from the United Kingdom.

17. The eldest child is a British citizen and if her parents and siblings are removed from the United Kingdom she would be obliged to go with them as the alternative would be to be placed into the care of the Local Authority.

18. I find myself with no alternative in this case but to allow the appeal, on Article 8 grounds, of the Appellant and all her dependant family members on the basis of the ten year old British citizen child.

19. It does appear extraordinary that the Secretary of State has not amended her IDI. However, she has not and if that is the Secretary of State's policy then I give my Judgment in line with it.

20. The Secretary of State's appeal to the Upper Tribunal is allowed to the extent that the Article 8 finding is set aside but in re deciding it I allow the Appellant's original appeal against the Secretary of States decision to refuse her leave to remain.

21. The First-tier Tribunal did not make an anonymity direction and I see no reason to make one.

Decision

The Secretary of State's appeal to the Upper Tribunal is allowed but in redeciding the appeal I allow the Appellant's appeal against the Secretary of State's decision.

Signed Date 12th August 2016

Upper Tribunal Judge Martin