Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07251/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 1st December 2016
On 9th December 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR OMOY ETANDA
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr G Harrison (Senior Home Office Presenting Officer)
For the Respondent: Not Represented

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 the First-tier Tribunal (Judge Lloyd-Smith) promulgated on 8th February 2016. In her Decision and Reasons Judge Lloyd Smith dismissed the Appellant's appeal on asylum and humanitarian protection grounds but allowed it on Article 8 grounds on the basis of the Appellant's relationship with his son.
2. For the purposes of continuity and clarity I will continue to refer to Mr Etanda as the Appellant and to the Secretary of State as the Respondent in this judgment. The Secretary of State's grounds, upon which which permission to appeal was granted, assert that the child in question is not a qualifying child and thus the Appellant could not meet the requirements of section 117B(6) of the Immigration and Asylum Act 2002. The Secretary of State also asserts that the Judge failed to provide adequate reasons for finding that the Appellant and his son enjoy a parental relationship that went beyond being biologically related

3. The Secretary of State asserts that the direct contact between the Appellant and his son is heavily supervised and limited to a few days a month and the predominant method of contact is through modern methods of communication. The Secretary of State also asserts that the Judge has not given consideration as to how the Appellant acts as a person with parental responsibility as there is no evidence to suggest that he disciplines the child, has a role in choosing his education or agreeing to medical treatment.

4. The Appellant arrived in the United Kingdom in August 2003 and claimed asylum. His claim was refused and his appeal dismissed. He became appeal rights exhausted on 9th August 2004. Following further representations made to the Secretary of State on 6th January 2009 he was granted discretionary leave from April 2010 until April 2013. During the currency of that leave he made an application on 9th April 2013. It was the refusal of that application which led to the appeal before Judge Lloyd-Smith.

5. The Judge's findings commence at paragraph 12 of the Decision and Reasons and conclude at paragraph 23.

6. The Judge found the Appellant's claims in relation to his partner lacked credibility and she did not allow the appeal the basis of that relationship.

7. At paragraph 14 the Judge noted that there had been inconsistent evidence in relation to the frequency of the Appellant's contact with his son, born on 2nd March 2007. The judge recited his explanation for this being due to the difficulties after his relationship with the child's mother broke down and the fact that they do not live in the same town.

8. The Judge then went on to consider the parent route under Appendix FM of the Immigration Rules but dismissed the appeal on that basis because at the relevant time the child was not a qualifying child.

9. At paragraph 17 the Judge reminded herself of the guidance contained in ZH (Tanzania) [2011] UKSC 4 that she must consider the best interests of the child as a primary consideration. She stated that in assessing the best interests of the child she could not go behind the order of the Family Court that had formalised contact between the Appellant and his son. The Supreme Court has endorsed this view in the case of Makhlouf [2016] UKSC 59 indicating that the Tribunal can rely on a Family Court order to indicate where the best interests of the child lie. The Family Court has of course far more resources to obtain independent evidence before determining where the best interests of a child lie. If that court has made an order for direct contact then it can be taken that it is in the best interests of the child to have that direct contact with the parent concerned.

10. In this case it is true that direct contact is limited under the terms of the order to 2 days per month with additional indirect contact. However, the Judge also referred herself to the social worker's notes describing the nature of the contact between the Appellant and his son which indicated that the relationship and contact was all positive and the child clearly enjoyed his time with his father indicating that he would like to see him more often.

11. On the basis of that evidence the Judge found that the Appellant had a genuine interest in his son and was forming a good relationship with him.

12. She then went on to consider section 117B of the Immigration and Asylum Act 2002 and referred herself to the case of Treebhawon & Ors (section 117B(6)) [2015] UKUT 00674 (IAC) which makes clear that where section 117B (6) applies that is a complete answer and there is no public interest in removing the Appellant. If there is no public interest in removing the Appellant the Secretary of State's case fails.

13. Of note is that at paragraph 21 the Judge finds the Appellant is a qualifying child. He is over the age of seven and at paragraph 22 notes that the Home Office Presenting Officer conceded that it would not be reasonable to expect the child to leave the UK. That is was clearly an appropriate concession given that the child lives with his mother, separately from the Appellant.

14. It cannot be said that the requirements of section 117 B(6) are not met. The Secretary of State is wrong to suggest the child is not a qualifying child. The Judge was entitled to rely on the order of the Family Court and the assessment by the social worker as to the progress of contact and its likely increase in future, to establish there was a genuine and subsisting relationship between the Appellant and his son. The Secretary of State is also wrong to suggest that in order to have a genuine and subsisting relationship the Appellant must show he is exercising various matters in relation to parental responsibility such as discipline and choosing schools. This is clearly not going to be the case where a child lives with the other parent who makes those day-to-day decisions. Additionally, having found there to be a genuine and subsisting relationship, the Secretary of State before the First-tier Tribunal conceded it would not be reasonable for the child to leave the UK.

15. The Judge having found that's.117B(6) applied, was correct to allow the appeal. It is clear that she was troubled by the Appellant's past behaviour and the lack of credibility to much of his evidence and did take that into account. However, her reasons for allowing the appeal are sound, reasoned and in accordance with case law.

16. Mr Harrison did not seek to argue otherwise.

Decision

The appeal to the Upper Tribunal is dismissed.

There having been no application for an anonymity order I do not make one.

Signed Date 9th December 2016
Upper Tribunal Judge Martin