Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA /07425 /2015

THE IMMIGRATION ACTS

Heard at FIELD HOUSE
Decision & Reasons Promulgated
On 26th October 2016
On 31st October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE G A BLACK

Between

MISS P [S]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: MR P NATHAN (Counsel instructed by FADIGA & Co solicitors)
For the Respondent: MR S STAUNTON (Home Office Presenting Officer)

DECISION AND REASONS

1. This is an error of law hearing. It comes before me for consideration as to whether or not there is a material error of law in the decision the First-tier Tribunal (Judge LK Gibbs) ("FtT") promulgated on 9th November 2015 in which the appeal on human rights grounds Article 8 ECHR was dismissed.

Background

2. The appellant is a citizen of Russia. She has two children who were born in 2010 and 2014 the UK and who are dependent on her claim, and who are citizens of Russia. Their father is a citizen of Ukraine and he is married to (and a family member under Regulation 7 EEA Regulations) an EEA citizen from Latvia; both are living in the UK in accordance with Treaty Rights. The appellant initially made a claim for asylum but this was withdrawn at the hearing before the FtT. The respondent accepted that she was a victim of trafficking but it was not shown that she faced any risk on return to Russia.

FtT decision

3. The appeal before the FtT was pursued on the basis of Article 8 family and private life outside of the Rules, and under the EEA Regulations 2006. The FtT dismissed the appeal on human rights grounds and concluded that it had no jurisdiction to consider an EEA appeal as there was no application nor decision made under those provisions [10-11]. (The appellant now accepts that there was no appeal under the EEA Regulations.) The FtT found that the children were living with the appellant and were financially dependent on their father with whom they had regular contact. It found that there was shared responsibility for the children. It accepted that the father of the children was himself a family member under Regulation 7 EEA Regs. dependent on his EEA wife who was exercising Treaty rights, and that as a matter of fact the children were financially dependent on him [9-10], but that he was not their primary carer. In dismissing Article 8 the FtT found that there was an interference with family life but that it was proportionate. The FtT took into account the appellant's poor immigration history, the background of trafficking, the impact of separation of the children from their father, the principle of no blame on the children for the conduct of the appellant, and the delay on the part of the respondent [19-20]. The FtT further considered that their father had a successful business in Russia where he had family and that he could continue to support the appellant and the children. He would be able to visit them in Russia and maintain regular contact by skype and telephone [20]. The FtT took into account the young ages of the children who were Russian nationals, their minimal educational involvement in the UK and that they had never lived with their father and that they presently lived a considerable distance from him. He had purchased a house for the family in Essex when he himself lived in Coventry [21]. The FtT concluded that the best interests of the children lay in remaining with their mother [13 - 16] and had regard to principles in ZH (Tanzania) [2011] EWCA Civ 348.

Grounds for application for permission to appeal

4. The appellant argued that the FtT failed to take into account the father's statement that he refused to allow the children to leave the UK and that he would seek an injunction to stop this. The FtT further failed to consider what would amount to realistic family contact as between the father and the children, by indicating that telephone and "skype" would be available.

5. The appellant argued that the FtT failed to take into account the delay of four and a half years by the respondent in reaching a decision, notwithstanding that the appellant's own conduct had been adverse. The delay was a factor to be considered under Article 8.

Permission to appeal

6. Permission to appeal was refused by FtT M. Davies and on renewal to the Upper Tribunal (UTJ McGeachy) ("UT"). An application for Judicial review was granted and on 5th April 2016 the decision of the UT was set aside. Permission to appeal was then granted by the Vice President of the UT on 12th September 2106.

Submisssions

7. At the hearing before me Mr Nathan relied on and expanded on the grounds for permission for judicial review. He argued that the FtT failed to take into account the potential chaos that would occur in the event that the father refused to allow the children to leave the UK. The father had parental rights and was named on the birth certificate. Any removal by the respondent would be unlawful as they were dependent on an EEA national exercising Treaty rights in the UK. The father and his wife would be entitled to apply for permanent residence, and it was not a question of choice of residence. There was an absence of any clear findings as to the nature and extent of family life with the father. He also relied on the delay issue.

8. Mr Staunton relied on the Rule 24 response and submitted that the father had issued no court proceedings in the family courts and it was speculative at this stage. The reasoning given by the FtT at [19-20] was sufficient and the appellant simply disagreed with the decision made. The father had made no attempt to commence proceedings in the family court and the FtT had considered delay.

Discussion and conclusion

9. I heard the submissions made by both representatives. I also rose in order to consider further the evidence that was before the FtT as to the nature and extent of family life as between the children and their father. I was fully satisfied that the FtT had considered all of the evidence in this regard and made findings that were open to it on the evidence.

10. I failed to agree with the submissions made by Mr Nathan in respect of both grounds of appeal. The FtT clearly considered the delay on the part of the Respondent and properly found that the appellant was equally responsible in that regard [19].

11. In considering the submission as to the father's refusal to give permission for the children to leave the UK, whilst I accept that this evidence was not recorded in the decision and there is no dispute that this was indeed his evidence, I am not satisfied that this is capable of amounting to a material error of law by the FtT. The position of the father was fully considered by the FtT. There were no family proceedings in existence and no application made under the EEA Regulations. The statement by the father was just that, an assertion of an intention, which of course he is entitled to make, but as such it has no bearing on the issues considered under the appeal. The FtT considered the alternative position that the father, who himself had a business and family in Russia, could continue to visit and support the children. The FtT concluded that the best interests of the children lay in remaining with their mother and they would return to Russia as a family unit. Furthermore, the FtT found that the public interest in immigration control outweighed other considerations and properly applied factors under section 117 of the 2002 Act.

Decision

12. There is no material error of law disclosed in the decision which shall stand.

Signed Date 28.10.2016

GA Black
Deputy Judge of the Upper Tribunal

NO ANONYMITY ORDER
NO FEE AWARD

Signed Date 28.10.2016

GA Black
Deputy Judge of the Upper Tribunal