AA/09631/2015

• Status of case: Unreported
• Hearing date: 1 Dec 2016
• Promulgation date: 25 Jan 2017
• Publication date: 19 Aug 2021
• Last updated on: 19 Aug 2021

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09631/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 1 December 2016
On 25 January 2017




Before

UPPER TRIBUNAL JUDGE ALLEN



Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

A R
(anonymity direction MADE)


Respondent


Representation:

For the Appellant: Mr S Whitwell, Senior Home Office Presenting Officer
For the Respondent: Mr S Kerr of Karis Solicitors

DECISION AND REASONS


1. R (who now appears as the respondent but to whom I shall refer hereafter as the appellant as he was before the First-tier Tribunal), appealed to that Tribunal against the decision of the now appellant but to whom I shall refer hereafter as the respondent, refusing his claim for asylum and refusing his human rights claim also.

2. The judge dismissed the asylum appeal but allowed an appeal outside the Rules on the basis of the appellant's private and family life. The allowing of the appeal was limited to granting leave to remain until the outcome of the appeal by VX, said to be his partner, and the mother of their two children.

3. The Secretary of State challenged the judge's decision on the basis that the judge had used Article 8 as a general dispensing power which was contrary to the findings of the Supreme Court in Patel [2013] UKSC 72 at paragraph 57, and that the proportionality assessment that had been made in favour of the appellant had been incorrectly determined despite all the mandatory public interest factors outlined in section 117B of the 2002 Act weighing against the appellant.

4. Permission to appeal was granted by a Judge of the First-tier Tribunal who noted that the Presenting Officer at the hearing had applied for an adjournment of the appeal so it could be heard on the same day as the appeal of VX. The judge considered it was not clear whether the respondent was arguing that the First-tier Judge at the appeal was wrong to refuse the adjournment request but noted that the respondent had referred to the fact that the judge found it was necessary to await the outcome of the partner's appeal, and the general complaint that the judge had erred in law.

5. In his submissions Mr Whitwell mentioned that the appellant's partner's appeal had now been heard and allowed. He accepted that eventually the appellant's family and private life required to be considered by the Tribunal. He relied on the grounds. The fairness issue had been raised by the judge granting permission and Mr Whitwell sought to rely on that albeit that it was not in the grounds. It had been unfair of the judge to fail to grant the Secretary of State's adjournment request. That application had not been opposed by the appellant who had sought an adjournment for other reasons. Having refused an adjournment to enable the two appeals to be heard on the same date, the judge had then allowed the appeal on the basis that the appellant be granted leave to remain until the outcome of his partner's appeal. There was unfairness in the circumstances as adverted to in Nwaigwe [2014] UKUT 00418 (IAC).

6. Mr Whitwell argued that the judge had ducked the question and fudged any proper assessment of Article 8 which was to be considered by agreement outside the Rules only. The judge noted at paragraph 33 the obligation to take into account the best interests of the children but had made no finding on that point. If there was insufficient information an adjournment would be required, and in this regard Mr Whitwell referred to MK [2015] UKUT 00223 (IAC). The judge had stated at paragraph 35 that the appellant had provided very little information on his relationship with his partner and child and that they no longer lived together and went on to remark that he had virtually no information as to the relationship the appellant enjoyed with the children and the role he played in their lives and the partner had not attended to give evidence as she had a doctor's appointment. This left him questioning whether their relationship was ongoing and whether the appellant played an active and positive role in the children's upbringing. The decision was inconsistent with these findings and these matters needed to be assessed at some point and the decision should be set aside and re-listed, preferably before the Upper Tribunal.

7. In his submissions Mr Kerr argued that the matter should be looked at practically. If the Secretary of State could implement the decision by seeking up-to-date information if there were an error of law then he agreed the matter would need to be remitted but it would be better if it went back to the First-tier rather than being heard in the Upper Tribunal.

8. As regards the grounds, the analogy with Patel was a false one. There had been an examination of the Human Rights Act it was not a question of mopping up at the fringes of the Immigration Rules and there was nothing in the point. As regards the second ground, the judge had properly structured his approach and said why he considered the matter outside the Rules and set out the Razgar guidelines and noted that Article 8 was engaged and considered section 117B. The children were not removable, a claim having been made for them and they were dependants on their mother's claim. The appellant's Article 3 rights would be breached if he was removed pending that outcome according to the judge and that was a sensible conclusion.

9. By way of reply Mr Whitwell argued that the judge had refused an adjournment for a month for the claims to be tied up and then allowed the appeal essentially on that basis. Neither had given evidence in the other's claim yet it had been allowed on the basis of his relationship with his family.

10. I reserved my determination.

11. The judge set out the five stage Razgar test, and accepted that the proposed removal of the appellant represented an interference by a public authority with the exercise of his rights to private and family life and that this interference had consequences of such gravity as potentially to engage the operation of Article 8. He was also satisfied that the interference was in accordance with the law and was necessary in a democratic society. The issue therefore requiring to be determined was whether the interference was proportionate. The judge set out the provisions of section 117B of the Nationality, Immigration and Asylum Act 2002. He noted that the appellant had no difficulty in giving evidence in English. There was no information to indicate that he was financially independent. He accepted that he had established a private life in the United Kingdom but noted that that private life was established on the basis that he had lied as to his true identity, the country from which he had come and the circumstances in which he had fled his home country and that he had maintained that deception for a period of more than ten years. As a consequence during this period he had been in the United Kingdom either unlawfully or with a precarious immigration status. In light of his deception the judge considered that very little weight could be attached to the private life he had established during that period.

12. He noted that the appellant claimed to be in a relationship with VX who had provided a statement in which she said she was in a relationship with the appellant. There are two children of the relationship, both Albanian citizens and dependants on their mother's appeal. The judge said that he recognised the obligation imposed upon the respondent by section 55 of the Borders, Citizenship and Immigration Act 2009, and accepted that the best interests of the children were a primary consideration.

13. He went on to note that there were aspects of the evidence that caused him to question the strength of the relationship between the appellant, his partner and the two children. The appellant had provided very little information on his relationship with his partner and child but it was clear that they no longer lived together. His partner suggested in her statement that they saw each other every day but the judge said that he had virtually no information as to the relationship the appellant enjoys with his children and the role he plays in their lives. He also noted that the appellant's partner was not in attendance to give evidence as she had a doctor's appointment. He considered that her failure to give evidence made him question whether their relationship was ongoing and whether the appellant played an active and positive role in his children's upbringing.

14. The judge went on to say that he had serious misgivings regarding the nature of the relationship between the appellant, VX and the two children. He accepted that the appellant was the father of the children with whom he appeared to have regular ongoing contact and did not consider it would be appropriate to remove him before a decision was made on the appeal of VX and proposed that the appellant be granted leave to remain until the outcome of that appeal.

15. The grounds do not raise the point which was one of the matters relied on by Mr Whitwell that of unfairness to the respondent in not adjourning. There was no application to apply to amend the grounds, and I do not consider that the point can be taken at this stage. Nor can any account be taken of the decision in VX's appeal, since that took place of course some time after this appeal. Although the context is different, I consider there is some force in the point made by the respondent, borrowing from paragraph 57 of Patel, that Article 8 is not a general dispensing power before but is concerned with private or family life not, as referred to at paragraph 57, education. There is however greater force in the second ground. Although the judge set out the relevant tests for an assessment of proportionality, including the obligation to give consideration to the best interests of the children, I do not consider that he can be said properly to have given effect to that. The only basis for allowing the appeal on the limited basis upon which that was done was the conclusion that it would be disproportionate to remove the appellant prior to the determination of VX's appeal. This has to be seen however in the context of the judge's noting that he had virtually no information as to the relationship the appellant enjoyed with his children and the role he played in their lives albeit noting that he appeared to have ongoing regular contact with them. There was no evaluation of what the best interests of the children actually were in the instant case. In light of the judge's concerns about the role the appellant played in his children's lives, I consider that there is a lack of any or any proper reasoning as to the conclusion the judge reached as to the disposition of the appeal.

16. Accordingly I find that the decision is infected by an error of law. There requires to be made a proper evaluation of the Article 8 issue, and that in my judgment can only be done by the matter being remitted for a re-hearing before a different First-tier Judge at Taylor House.

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


Upper Tribunal Judge Allen