Tribunal decisions

The decision

IAC-BH-PMP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03757/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision & Reasons Promulgated
On 1st August 2016
On 5th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

RAPHAEL [I]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Dhanji of Counsel instructed by Braitch Solicitors
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Before the Upper Tribunal the Secretary of State becomes the appellant. However, for the avoidance of confusion and to be consistent, I shall continue to refer to the parties as they were before the First-tier Tribunal.
Background
2. On 23rd May 2016 Judge of the First-tier Tribunal Adio gave permission to the respondent to appeal against the decision of Judge of the First-tier Tribunal Matthews in which he dismissed the appeal on asylum and humanitarian protection grounds but allowed it on human rights grounds against the decision of the respondent to refuse the application by the appellant, a male citizen of Nigeria, for international and human rights protection.
Error on a Point of Law
3. Judge Adio gave permission on the basis that it was arguable that the judge should not have allowed the appeal on human rights grounds under the Immigration Rules by applying the provisions of paragraph EX.1. of Appendix FM because the eligibility Rules under Appendix FM excluded the application of EX.1.
4. It should be noted that, at paragraph 90 of the respondent's refusal letter of 13th January 2015, it is erroneously stated that paragraph EX.1. applied to the appellant's circumstances as a parent of a British citizen when, in fact, that paragraph could not apply to the appellant by virtue of paragraph E-LTRPT.2.3.(b)(ii). That was because the parent of the appellant's child should not be his partner. Judge Adio applied that error to his grant of permission, but also suggested that there was an arguable error because the appellant was also excluded from the application of paragraph EX.1. because he had come to the United Kingdom as a visitor and was now an overstayer. That restriction appears in E-LTRPT.3.2.(b), save where paragraph EX.1. applies, which it does not.
5. At the hearing before me both Mr Dhanji and Mr McVeety accepted that paragraph EX.1. should not have been applied by the judge to his decision although, clearly, he had been misled by paragraph 90 of the refusal.
6. For the sake of completeness, Mr Dhanji indicated that representatives "interim" Rule 24 response should not be taken into consideration as it was not properly directed to the relevant issues in the application.
7. Mr McVeety also helpfully indicated that, on the basis that the matter would have to be re-made on human rights grounds, there had been no consideration of Article 8 issues outside the Immigration Rules by consideration of the existence of compelling circumstances and/or the application of Section 117B(6) of the 2002 Act.
8. In these circumstances, particularly bearing in mind that it was clear that the judge had been misled into erroneously considering paragraph EX.1., I indicated that I was satisfied that the decision showed an error on a point of law in relation to the human rights claim only. The dismissal of the asylum and humanitarian protection appeal was not the subject of the application and so could stand.
Re-Making the Decision
9. Having made the finding in the preceding paragraph, I heard brief submissions from both representatives about Article 8 issues taking into consideration that it was agreed that both the appellant's partner and his daughter, born on 12th July 2012, are British citizens.
10. Mr McVeety reminded me of the correct approach to consideration of relevant issues under Section 117B by reference to MA (Pakistan) [2016] EWCA Civ 705 concerning whether or not whether it would be reasonable to expect a child to relocate. Mr McVeety conceded that this was the same test as that set out in EX.1. In that respect he also agreed that, applying that test, it would not be possible to force either the appellant's wife or child to go to Nigeria. Nevertheless, in conclusion, requested that I should consider the appellant's poor immigration history.
11. Mr Dhanji thought that the appeal could be decided in the appellant's favour as compelling circumstances already existed as identified by the First-tier Judge when considering essentially the same test. He specifically drew my attention to paragraphs 44 and 47 of MA in which the Court of Appeal considered there to be powerful reasons why, having regard to the best interests of a child as a primary consideration, that, if the child is a citizen of UK, he or she should be allowed to stay and have their position legitimised if it would not be reasonable to expect them to leave, even though the effect is that possibly an undeserving family can remain with them.
Conclusions and Reasons
12. At the end of the hearing, and after I had considered the matter for a few moments, I announced that I would allow the appeal on human rights grounds. My reasons for doing so now follow.
13. My approach to the human rights element of this appeal follows the guidance of the Court of Appeal in SS (Congo) [2015] EWCA Civ 387 requiring the identification of compelling or exceptional circumstances for consideration of Article 8 issues outside the Immigration Rules. If such circumstances are identified then the five stage approach recommended in Razgar [2004] UKHL 27 can be applied, particularly to consider the proportionality of the respondent's decision to the legitimate public end sought to be achieved.
14. The Rules do not allow for consideration of the reasonableness of expecting the appellant's partner and his daughter to go to Nigeria because of the conclusion, in the Rules in E-LTRPT.2.3.(b)(ii), which excludes the application of EX.1. The parent with whom the child normally lives is the partner of the appellant. However, Section 117B(6) of the 2002 Act does allow for consideration of the same test where an appellant has a genuine and subsisting parental relationship with a child who is a British citizen. This highlights an area of the Immigration Rules which does not cater for the situation which arises in this appeal yet which statute acknowledges is relevant to consideration of the public interest. That, in my view, creates a compelling circumstance. Additionally, however, there are other factors which also serve to identify compelling circumstances. The appellant's partner is British with a British mother and a father of Jamaican origin. She is reluctant to go to Nigeria, a country about which she knows little and has never visited. The child, whose best interests are a primary consideration, is British and, at 4 years of age, needs the care of her mother. Neither of them can be compelled to leave the United Kingdom nor is there any wish to do so. Mr MCVeety, for the respondent, agrees with that.
15. Further, it is not in issue that the appellant and his partner have a genuine and subsisting relationship. The evidence, already examined by the First-tier Judge, shows that the appellant fully exercises his parental responsibilities and all the parties live together under the same roof. Additionally, as the passage in MA referred to by Mr Dhanji makes clear, a poor immigration history does not, necessarily, override the best interests of a child who is a British citizen. All these factors, together, lead me to conclude that it is appropriate that I should consider the human rights element of this appeal outside the Rules having regard to the Razgar five stage approach and the provisions of Section 117B of the 2002 Act.
16. Looking at the best interests of the appellant's 4 year old British child with whom he has a genuine and subsisting parental relationship, I conclude that it would not be reasonable to expect that child to leave the United Kingdom for reasons I have already identified as compelling circumstances. Thus, on the basis that it is the proportionality element of the Razgar five stage tests that I have to consider in this case, I reach the conclusion that the respondent's decision is not disproportionate having regard to the appellant's partnership with a British citizen and, particularly, his parental relationship with his British child. I do not regard the appellant's immigration history as outweighing the best interests of the child. Although the appellant was an overstayer after the expiry of his visit visa on 28th January 2011, he subsequently made two applications for leave to remain on the basis of his family and private life and also claimed asylum. He has, at least, made some attempts to regularise his position even if his asylum claim has been dismissed.

Notice of Decision
The decision of the First-tier Tribunal to dismiss the appellant's asylum and humanitarian protection claims does not show an error on a point of law and shall stand. The decision in relation to the human rights appeal shows an error and is set aside. I re-make the human rights appeal to allow it on that ground.

Anonymity
An anonymity direction was not made by the First-tier Tribunal nor was such a direction requested before me.

Signed Date

Deputy Upper Tribunal Judge Garratt