Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10336/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly Decision & Reasons Promulgated
On the 10th April 2017 On the 20th April 2017

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between:
MR A.M.S.A.
(Anonymity Direction made)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Turner (Counsel)
For the Respondent: Mr McVeety (Senior Home Office Presenting Officer)
DECISION AND REASONS
1. This is the Appellant’s appeal against the decision of First-tier Tribunal Judge Pickup promulgated on the 6th June 2016, in which he dismissed the Appellant’s appeal against the Respondent’s refusal to grant the Appellant protection as a refugee, humanitarian protection, or on the basis of the Appellant’s Human Rights under Articles 2, 3 or 8.
2. The Appellant is a citizen of Libya who was born on the 3rd September 1983.
3. Judge Pickup did not accept that the Appellant had come to the adverse attention of militia members, on account of the Appellant’s Facebook postings, and therefore found that the Appellant was not entitled to asylum. Judge Pickup further found that the Appellant’s life would not be threatened, simply as a result of him being a civilian, as a result of there being such a high level of indiscriminate violence in Libya for the purpose of Article 15(c). Judge Pickup further found that the Appellant’s wife was pregnant at the time of the application and that therefore the issue of the parent route under Appendix FM did not arise, but noted that the Appellant was now a father of a British citizen child, his wife having given birth since the date of the decision. Judge Pickup further found at [54] that it was not entirely clear why the Appellant did not qualify as a spouse but it appeared to him that the Appellant’s marriage in Libya was not recognised in the UK and that the couple had not been in a relationship akin to marriage for at least 2 years such that he did not qualify as a partner. He said that he noted that the translation of the marriage contract did not appear to name either of them and it was not clear that there had been a valid marriage.
4. Judge Pickup further found that at all times the Appellant’s presence in the UK was illegal and precarious and that there were no compelling circumstances outside of the Immigration Rules such as to require Leave to Remain to be granted following the case of Secretary of State for the Home Department v SS (Congo) [2015] EWCA Civ 387. Judge Pickup went on to find that in any event, when conducting a freestanding Article 8 assessment, that although it was in the best interests of his child to be raised by both parents, the decision did not require the child or its mother to leave the UK and it remained open for the Appellant’s wife and child to accompany him back to Libya, if they so chose, but that as the decision did not require the British citizen child to leave, Section 117B(6) was not met. Judge Pickup therefore dismissed the Appellant’s appeal.
5. The Appellant has sought to appeal that decision for the reasons set out within the Grounds of Appeal. It is argued, inter alia, that the marriage contract was overlooked as it did state both names and there was sufficient evidence before the Learned First-tier Tribunal Judge to find that the Appellant had been in a subsisting relationship with Mrs [E], given they had been married for over 2 years and had a British citizen child. It is further argued that the Appellant’s son Adam is a British citizen child and it would be unreasonable for him to be removed from the UK or for his parents to be separated from him. It is said that the suggestion that the Appellant could go back to Libya to make an Entry Clearance application was something that the House of Lords disapproved of in the case of Chikwamba v SSHD [2008] UKHL 40, especially in cases where children are involved. It was argued that the Judge had failed to properly consider Section 55 of the Borders, Citizenship and Immigration Act 2009 and that in addition, he failed to properly apply Article 8 of the ECHR.
6. Permission to appeal was granted by FTTJ Pullig on the 5th October 2016. In granting permission he stated that both names did appear on the translated marriage certificate and page 2 of the original bundle and that it was arguable that the marriage was valid in the UK, under the lex loci celebrationis or the lex loci contractus. He further found it was arguable that Judge Pickup had not properly applied Treebhawon and others (section 117B(6)) UKUT 674.
7. Within the Respondent’s Rule 24 reply dated the 5th January 2017, it is argued that the First-tier Tribunal Judge had directed himself appropriately; the Judge properly found that the Appellant did not meet the requirements of the Immigration Rules and that the Judge had properly taken into account all relevant factors in consideration of the Article 8 case outside of the Immigration Rules.
8. It was on that basis the case came before me in the Upper Tribunal.
9. At the start of the Upper Tribunal appeal hearing, Mr McVeety on behalf of the Respondent, indicated that notwithstanding the Rule 24 reply, he conceded that the decision of First-tier Tribunal Judge Pickup did contain a material error of law. He told me that Judge Pickup had found specifically that the Appellant did have a genuine and subsisting relationship with his British citizen child at [61], but that Judge Pickup had found that there would not be very significant obstacles to developing a family life outside of the UK, which had to mean in Libya at [60].
10. Mr McVeety told me that the travel information from the Foreign and Commonwealth Office warned British citizens not to travel to Libya for any purpose and that in such circumstances, Judge Pickup’s analysis that the family life could be continued and developed outside of the UK in Libya was in error. He stated that Judge Pickup had not then gone on to consider whether or not the Appellant should be separated from his British citizen child, in such circumstances. He also conceded that in fact the marriage translation certificate in the bundle did name both the Appellant and his wife.
11. Mr McVeety then asked for the case to be stood down for a few minutes so that he could make a phone call to a senior colleague, in respect of what the Respondent sought regarding disposal of the appeal. Having done so, Mr McVeety said that having spoken and consulted with his senior colleague, the Respondent was not seeking to argue, in light of Judge Pickup’s finding that the Appellant did have a genuine and subsisting relationship with a British citizen child, that it was reasonable for the family to be separated, even for a short period of time such as to allow an Entry Clearance application to be made, and conceded that the appeal should be allowed on Article 8 grounds, in respect to the Appellant’s family life outside of the Immigration Rules.
12. In light of those concessions by Mr McVeety, I do find that regrettably the decision of First-tier Tribunal Judge Pickup does contain a material error of law, in that he proceeded on the false assumption that family life between the Appellant, his partner and child could proceed outside of the UK in Libya. I make no criticism whatsoever of Judge Pickup in that regard, given that it appears that the Foreign and Commonwealth Office travel guidance that British citizens should not travel to Libya was not brought to his attention by the parties at the appeal hearing. Clearly, if there is highly relevant information known to the parties at the time of the appeal hearing, that should be brought to the attention of the First-tier Tribunal Judge at the First-tier appeal hearing. It is not for the First-tier Tribunal Judge to do his own research on such matters.
13. However, given that travel guidance and the concession by Mr McVeety that British citizens should not travel to the Libya and given the concession that Judge Pickup therefore proceeded on a false basis regarding the ability of the relationship to continue outside of the UK and that this amounted to a material error of law, I do set aside the decision of First-tier Tribunal Judge Pickup in respect of his analysis of the Human Rights claim under Article 8. No criticism within the Grounds of Appeal was made in respect to Judge Pickup’s decision in respect of the asylum claim, or in respect of humanitarian protection, or in respect of his findings on Articles 2 and 3, and I maintain his decision for the reasons given by him in respect of those matters.
14. In light of the concession made by Mr McVeety that the Respondent was not stating that it was reasonable to separate the family, even for a short period of time and that the appeal should be allowed on Article 8 grounds outside of the Immigration Rules, I do remake the decision allowing the Appellant’s appeal on Human Rights grounds under Article 8, the original decision being unlawful and contrary to Section 6 of the Human Rights Act 1998, as being in breach of the Appellant’s Human Rights in respect of his right to a family life in the UK. Given the concession made by the Respondent in that regard it is unnecessary for me to make findings in respect of each issue in the balancing exercise.

Notice of Decision
The decision of First-tier Tribunal Judge Pickup does contain a material error of law, in respect of his consideration of Article 8 and is set aside in that regard.
I remake the decision, allowing the appeal on Human Rights grounds under Article 8.
I do make an Order in respect of anonymity, in light of the Anonymity Order having previously been made by First-tier Tribunal Judge Pickup. 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 his family. This direction applies to both the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.
Signed

Deputy Upper Tribunal Judge McGinty Dated 11th April 2017