Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05870/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Tribunal
Decision promulgated
On 13 March 2017
On 17 March 2017

Before

UPPER TRIBUNAL JUDGE HANSON

Between

NK
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mrs Masih instructed by Kausers Solicitors
For the Respondent: Ms Aboni Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against a decision of First-tier Tribunal Judge Obhi (‘the Judge’) promulgated on 24 August 2016 in which the Judge dismissed the appellant’s appeal on protection and human rights grounds.
2. The protection element had been withdrawn at the commencement of the hearing meaning there was therefore, arguably, no protection element that the Judge had jurisdiction to dismiss. The Judge was only concerned with the human rights appeal.
3. Having examined the claim the Judge sets out her findings from [13] to [25] of the decision.
4. Permission to appeal was sought by the appellant and granted by a Designated Judge of the First-tier Tribunal in the following terms:

1. By decision promulgated on 24 August 2016 First-tier Tribunal Judge Obhi dismissed the appellant’s appeal against the decision of the respondent to refuse her protection and human rights claims. The appellant had claimed and withdrawn claims for asylum on more than one occasion. Before Judge Obhi she had only pursued the appeal on Article 8 grounds. The appellant has a child born in the UK, who has a British passport.
2. As part of the papers produced there was a copy of the British passport for the child of the appellant. The judge has questioned that passport and the child’s status as a British Citizen [see paragraphs 20 to 22]. There is no suggestion that the respondent has sought to revoke or void the passport and as such it stands as evidence of the child’s nationality. The judge has based his decision on the child not being a British Citizen and speculated thereafter as to the circumstances in which a Child Arrangement Order was made. There was a letter from a CAFCASS/Family Court Adviser and other documents dealing with the Child Arrangement Order.
3. It is arguable that the judge has failed to deal with the fact that the child is a British Citizen and the consequences of that. It is arguable that such a failure constitutes an error of law.
4. With regard to the other grounds of appeal, the fact that the appellant has made and withdrawn the asylum claim on more than one occasion and appeared to accept before the judge that she cannot sustain an asylum claim or appeal, could be relevant to the credibility of an appellant in that it may be found that an appellant has falsely claimed asylum to prevent removal. Such may be taken into account in assessing the credibility. I would not have found that the approach of the judge in that respect contained an arguable material error of law.
5. However it is arguable that the judge’s approach to the nationality of the child and the failure to deal with the possibility that the child is a British citizen constitutes an error of law. For the reasons set out I grant leave.

Error of law

5. As noted in the grounds, and the grant of permission, the respondent has taken no steps to revoke the recognition of the appellant’s child as a British citizen. The Judge notes in the decision under challenge that the child has a British passport but then sets out between [13–19] a number of concerns in relation to the appellant’s credibility. In [19] the Judge states “…… In terms of credibility and findings of fact therefore, I am not satisfied that the child is a British child. I accept that the child has a British passport, but I have no idea what information was given to the Passport office in order to obtain a passport, and I also wonder why it was necessary to obtain a passport for a child in respect of whom there were no immediate travel plans”.
6. The Judge does not dispute the fact the appellant has a child and in [20 – 23] goes on to consider paragraph EX.1 of the Immigration Rules. In doing so it appears the Judge must have accepted that the child is a British citizen as that paragraph only applies if (i) the applicant has a genuine and subsisting parental relationship with the child who is (aa) under the age of 18, (bb) is in the UK, and (cc) is a British citizen or has lived continuously for at least 7 years immediately preceding the date of the application and (ii) it would not be reasonable to expect the child to leave the UK.
7. At [21] the Judge considered the reasonableness of the child leaving the UK. At the date of the hearing the child was only 8 months of age and so (cc) of EX.1 could only have been engaged on the basis of the child’s nationality as a British citizen.
8. The respondent’s position is that even if the Judge erred such error was not material as the Judge considered the matter by reference to EX.1 which the Judge would have had to have done even if she accepted that the child holds British citizenship.
9. Before the Judge, in the skeleton argument before the First-tier Tribunal, was an extract from the Home Office guidance in respect of Article 8 and the application of EX.1, paragraph 11 of which stated:

‘in all cases where the decision being taken in respect of the person with parental responsibility would require that person to return to a country outside of the EU then the case must always be assessed on the basis that it would be unreasonable for the child to leave the UK with their parent. In such cases it will usually be the case that the person with parental responsibility will be allowed to stay in the UK with the child provided that there is satisfactory evidence of a genuine and subsisting relationship’.

10. The appellant also relied upon the respondent’s IDI entitled ‘Immigration Directorate Instructions, Family members under the Immigration Rules, Section FM1.0 Partner and ECHR Article 8 guidance’ which states:

‘…This guidance reflects a two-stage approach to considering applications under the family and private life rules in Appendix FM and paragraph 276 ADE-DH. First, caseworkers must consider whether the applicant meets the requirements of the rules, and if they do, leave under the rules should be granted. If the applicant does not meet the requirements of the rules, the caseworker must move on to a second stage: whether, based on an overall consideration of the facts of the case, there are exceptional circumstances which mean refusal of the application would result in unjustifiably harsh consequences for the individual or their family such that refusal would not be proportionate under Article 8. If there are such exceptional circumstances, leave outside the rules should be granted. If not, the application should be refused.

This two-stage approach has been endorsed by the High Court in the Judicial Review in Nagre 1. In the judgement Sales J finds that our regime of rules coupled with the Secretary of States published policy on exceptional circumstances “… Fully accommodates the requirements of Article 8” [paragraph 36] and “… There is full coverage of an individual’s rights under Article 8 in all cases by a combination of the new rules and (so far as may be necessary) under the Secretary of State’s residual discretion to grant leave to remain outside the Rules” [paragraph 35].

11. When considering the reasonableness of any decision to remove the child the Judge was required to consider not only section 55 of the Borders, Citizenship and Immigration Act 2009 and the best interests of the child but also published policy and European case law, as the child as a British citizen is also entitled to the benefits of European citizenship at the date the decision was made.
12. The Judge’s assessment of the reasonableness of removal makes no reference to the published policy and no reference to the child’s status as a British or European citizen and the legal consequences thereof. Whilst it is accepted that nationality is not a trump card in all circumstances there is a requirement on a judge assessing the position under EX.1 to properly consider all relevant applicable legal provisions.
13. It is arguable the Judge’s findings in relation to the appellant may have clouded her judgement in relation to matters to be assessed. The statement by the Judge that the child may be a British child but may not be appears to be contrary to the evidence before the Judge that child was the holder of a British passport. It may be as a result of the matters highlighted by the Judge the Secretary of State investigates the grant of citizenship further, but at the date of the hearing there was arguably nothing that entitled the Judge to go behind the recognition of the child’s status as a British citizen.
14. I find the Judge has materially erred in law in relation to her treatment of the nationality of the child and failure to recognise the status of the child as it stood at the date of the hearing. I find the error is material for although the Judge went on to consider EX.1, which will be applicable to a British citizen child, the assessment of the reasonableness of removing the child is flawed due to the failure by the Judge to consider all relevant legal issues. The decision is therefore set aside.

Discussion

15. It was accepted that the Upper Tribunal can remake the decision based on the information and material made available. Miss Aboni accepted that based on the respondents own published guidance, and in the absence of countervailing factors in relation to the child of a sufficient degree, that it had not been made out that it was reasonable in all the circumstances to expect the child to leave the United Kingdom and therefore the territory of the European Union.
16. I find that in this case it has not been established that it is reasonable to expect this British national child to leave the United Kingdom.
17. Although the appellant has not made out any entitlement to remain in her own right, and in this respect the Judges’ comments in regard to the appellant’s immigration history appear to be arguably well-founded, the fact of the matter is that the appellant is the primary carer of the child and that to remove the appellant from the United Kingdom will deny the child the presence of his or her primary carer. As a consequence, the child would have to leave the territory of the United Kingdom and EU to enable the mother to provide ongoing care. As stated, the child is an infant. I therefore find that the appellant is entitled to succeed with her appeal based upon Article 8 ECHR as it has not been shown to be proportionate all the circumstances to remove her from the United Kingdom or in accordance with EU law to create a situation in which the child is required to leave the territory of the Member States. The appeal is therefore allowed on human rights grounds only.
18. The Tribunal wishes to make it clear that this decision is based solely upon the fact the child has been recognised by the respondent as a British citizen. If, as a result of the matters highlighted by the Judge in the decision, the Secretary of State revokes the child’s citizenship the reason why the appellant’s appeal has been allowed will also, arguably, fall. That is however matter that will depend upon the respondent taking action and the outcome of any future challenges which may require further decisions to be made at the appropriate time.

Decision

19. The First-tier Tribunal Judge materially erred in law. I set aside the decision of the original Judge. I remake the decision as follows. This appeal is allowed.

Anonymity.

20. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make such an order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated the 13th of March 2017