The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10189/2012


Heard at Bradford
Determination Promulgated
On 3 June 2013
On 12 June 2013










For the Appellant: Mr Barry, Harehills & Chapeltown Law Centre
For the Respondent: Mr Diwnycz, Home Office Presenting Officer


1. This is the Appellant's appeal against the decision of Judge Shimmin made following a hearing at Bradford on 10th December 2012.
2. The Appellant is a citizen of Afghanistan born on 1st January 1993. He arrived in the UK on 13th November 2008 and applied for asylum. His application was initially refused on non-compliance grounds and then substantively on 26th October 2012.
3. The judge found that there was no truth in the Appellant's claims and dismissed the asylum appeal. There is no challenge to that aspect of his decision.
4. In September 2011 the Appellant met a Miss Tyler and they began a relationship together. By the date of the hearing she was, it was accepted by all parties, expecting his child. The judge found that the couple did not enjoy family life in the UK and dismissed the appeal on Article 8 grounds.
The Grounds of Application
5. The Appellant sought permission to appeal on the grounds that the judge’s consideration of the Article 8 issue was not adequate, and permission was granted on that basis by Judge Grant on 9th January 2013.
6. At the hearing Mr Diwnycz conceded that the judge had erred in law.
7. The judge's decision with respect to Article 8 is set aside on the grounds that the judge did not give adequate reasons for dismissing the appeal in the context of the accepted evidence before him.
8. The decision must be remade.
The Hearing
9. The Appellant gave oral evidence. He confirmed that he had moved in to live with his partner, with whom he has undergone an Islamic marriage ceremony, in January 2013. They lived together with their baby daughter who was born in March 2013 and with the Sponsor's two sons, one of whom is in the army, returning at weekends and the other of whom attends college. Mr Qudos said he initially moved in because his partner developed gestational diabetes whilst pregnant and had to administer four injections to herself on a daily basis. The injections stopped after she had given birth but he now helps her with the baby, getting up at night, helping with feeding and winding her.
10. Terri Tyler also gave oral evidence and confirmed that what Mr Qudos had said with respect to child care was true. She also gave more detail about their attempts to get married in the UK. She said that she had contacted the Registry Office on a couple of occasions and had been told her that she needed certain documents from the Afghan Embassy. The couple had been down to London but were unable to obtain an Afghan ID card as required because they did not have the proper evidence. She said that it was important for the Appellant that the couple married Islamically before the baby was born, but she wanted to have an English marriage.
11. Miss Tyler said that she had a job but was presently on maternity leave and would return in September. The Appellant would then take over full-time care of the baby. She said that she could not possibly go and live in Afghanistan because she had never been abroad but in any event had strong family commitments here, not only to her two sons but also in helping to care for her father who was disabled. When asked what would happen if the Appellant was returned to Afghanistan she became very upset and said that she would be devastated.
12. Mr Diwnycz made no submissions.
13. Mr Barry submitted that there was clear family life between the Appellant and Miss Tyler and their daughter. It would not be possible for the family to relocate to Afghanistan because of their substantial ties to the UK and it would be disproportionate to break this family up by removing the Appellant.
Findings and Conclusions
14. The unchallenged evidence is that this couple enjoy family life together. They live together and have a daughter and the Appellant is heavily involved in her care.
15. Removal would be an interference with the Appellant's right to enjoy family life but would be in pursuit of a legitimate aim since the Appellant has no other basis of stay in the UK.
16. However it would not be proportionate. The unchallenged evidence is that the Appellant is presently in a committed relationship with a UK citizen and they have a British citizen child together. If the Appellant were to be removed to Afghanistan those relationships would be severed. Miss Tyler could not be expected to go and live in Afghanistan, not only because it is a country which is wholly alien to her but, more importantly, because of her ties and commitments to people in the United Kingdom. She has two sons, one an adult who returns to the family home at weekends but the other is only 16 and presently at college.
17. The issue which concerned the previous Immigration Judge was the quality of the relationship between the Appellant and Miss Tyler. At the time of the previous hearing the couple were living separately because of the effect which the Appellant’s presence in the house would have on Miss Tyler’s tax credit claim. This situation changed when the Appellant’s presence became necessary to care for Miss Tyler during the last month of her pregnancy.
18. Whilst I can understand the reservations which the Respondent may have had, and indeed the previous judge clearly had, in relation to this couple’s future, the oral evidence today was compelling and undisputed. Miss Tyler was visibly upset whilst giving evidence when asked what would happen if Mr Qudos was removed. Of course nothing can be guaranteed and any period of discretionary leave which the Appellant is granted will be only for a period of two or three years - if the situation has changed at that point no doubt the Respondent will make the decision which she sees fit. However on the present evidence I conclude that the couple are in a loving and committed in relationship.
19. The original judge erred in law and his decision is set aside. It is remade as follows. The Appellant’s appeal is allowed on Article 8 grounds. The appeal was dismissed on asylum grounds.

Signed Date

Upper Tribunal Judge Taylor