Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08281/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower Birmingham
Decision & Reasons Promulgated
On 16th November 2016
On 6th December 2016

Before

DEPUTY upper tribunal JUDGE RENTON

Between

E K K
(ANONYMITY order made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mrs U Sood, Counsel instructed by 1st Call Immigration Services
For the Respondent: Mrs H Aboni, Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The Appellant is a female citizen of Namibia born on 16th June 1982. She first arrived in the UK on 8th March 2004 when she was given leave to enter as a working holidaymaker until 8th March 2006. Thereafter the Appellant overstayed, and on 7th November 2014 she applied for asylum. That application was refused for the reasons given in the Respondent's letter of 30th April 2015. The Appellant appealed, and her appeal was heard by Judge of the First-tier Tribunal Chapman (the Judge) sitting at Birmingham on 6th April 2016. He dismissed the appeal on asylum, humanitarian protection, and human rights grounds for the reasons set out in his Decision dated 13th April 2016. The Appellant sought leave to appeal that decision, and on 11th May 2016 such permission was granted.
Error of Law
2. I must first decide if the decision of the Judge contained a material error of law so that it should be set aside.
3. As was established at the hearing before me, the sole issue in this appeal is whether the Judge applied the principle established in Ruiz Zambrano v Office National de L'Emploi [2011] AER (EC) 491 when considering the Appellant's ECHR human rights. In this respect, the Judge made findings of fact that the Appellant had two daughters living in Namibia with her father, and also brothers, sisters, and an aunt. In late 2013 the Appellant had a relationship with IO which resulted in the birth of a daughter, UO, born on 23rd June 2014. IO had three other children aged 14, 11 and 7 years. UO was a British citizen who had lived with the Appellant since her birth. The Appellant did not have a genuine and subsisting relationship with IO who did not have a significant role in the life of UO. On the basis of these findings, the Judge decided that although the Appellant was the primary carer of UO, IO had not abandoned UO and played some role in her upbringing. Therefore for the purposes of paragraph EX.1. of Appendix FM of HC 395, the Appellant did not have sole responsibility for UO, and therefore UO would not be forced to leave the UK, and it would not be unreasonable to expect UO to go to Namibia with her mother. Therefore paragraph EX.1. was not satisfied. Further, the Judge found that there were not significant obstacles to the Appellant's reintegration into Namibia, and therefore she could not rely upon paragraph 276ADE of HC 395. Finally, the Judge decided that there were no compelling circumstances not already considered under the Immigration Rules allowing him to consider the Appellant's Article 8 ECHR rights outside the Immigration Rules. However, in the alternative, the Judge further decided that the Respondent's decision was not disproportionate.
4. At the hearing, Mrs Sood submitted that the Judge had erred in law in reaching these decisions by failing to consider what she described as the Zambrano principle. That principle, which was that a child of an EU citizen should not be compelled to leave the UK, was not described in the Decision. The Zambrano principle was about the deprivation of rights of an EU citizen. The principle should have been considered by the Judge in the context of the best interests of the child. Those should have been established by an investigation by the Family Court.
5. In response, Mrs Aboni referred to her Rule 24 response and argued that there were no such errors of law. The Judge had made reasoned findings open to him on the evidence. The Zambrano principle had been raised at the hearing before the Judge, and properly considered by him as he stated at various places in the Decision. The Judge had made clear findings as regards the future of UO and her best interests at paragraphs 65 and 68 of the Decision. UO was not being compelled by any decision of the Respondent to leave the UK. It was a matter for her parents to decide what would happen to her. The Zambrano principle only applied when a child was required to leave the EU. In this case the child could remain in the UK with her father.
6. I find no material error of law in the decision of the Judge which I therefore do not set aside. Mrs Sood criticised the Judge for failing to apply the decision in Zambrano, but I find this not to be the case. The Judge referred to the decision in Zambrano in a number of places in the Decision. He did so at paragraphs 54, 56, and 74 of the Decision. Between paragraphs 57 and 60, the Judge carefully and thoroughly analysed the decision in Zambrano and the subsequent jurisprudence dealing with its application. The Judge stated that in respect of all of his decisions in the appeal, he had taken into account the principles in Zambrano, and this is apparent to me from the Judge's reasons for those decisions. I do not think it possible to argue that the Judge failed to take account of the decision in Zambrano as regards the consequences for UO of the Respondent's decision. Clearly he did so.
Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside that decision.
The appeal to the Upper Tribunal is dismissed.
Anonymity
The First-tier Tribunal made an order for anonymity which I continue for the same reasons given by the First-tier Tribunal.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge Renton 6th December 2016