Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11025/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
On 3rd January 2017
Decision & Reasons Promulgated
On 5th January 2017

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
HOUDA [Z]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G Brown for Crumpsall Solicitors
For the Respondent: Mr C Bates.
DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. The Appellant was born on 24 July 2015 and is a national of Morocco.
3. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
Preliminary Discussion
4. Mr Brown provided me with a document purporting to be a Rule 24 Response and Cross Appeal. I indicated to Mr Brown that I was satisfied that there was an authority that indicated he could not argue a 'cross appeal' unless permission had been granted for such an appeal. I was unable to recollect the authority but it is EG and NG (UT rule 17: withdrawal; rule 24: scope) Ethiopia [2013] UKUT 00143(IAC) headnote 3 of which reads
"A party that seeks to persuade the Upper Tribunal to replace a decision of the First-tier Tribunal with a decision that would make a material difference to one of the parties needs permission to appeal. The Upper Tribunal cannot entertain an application purporting to be made under rule 24 for permission to appeal until the First-tier Tribunal has been asked in writing for permission to appeal and has either refused it or declined to admit the application."
5. In this case the Respondent sought, and was granted permission and the Appellant did not. The matter will proceed on the basis of the appeal by the Respondent. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Simpson promulgated on 5 March 2016 which refused the Appellant's appeal against the decision of the Respondent dated 24 July 2015 to refuse her claim for asylum or humanitarian protection but allowed her appeal on human rights grounds.
6. The decision in relation to the refusal of refugee protection has not been challenged and is a matter of record. The human rights appeal which was based on the Appellants marriage to a British Citizen Reza Eskandari and her relationship with Mr Eskandari's son because it was not accepted that the Appellant and Mr Eskandari were in a genuine and subsisting relationship.
The Judge's Decision
7. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Simpson ("the Judge") dismissed the appeal against the Respondent's decision in respect of the refugee claim but allowed the appeal under Article 8 in essence because she found that the Appellant's marriage was genuine noting that the Appellant was also pregnant and her child would be a British Citizen.
8. Grounds of appeal were lodged arguing that the Judge's approach to Article 8 as she failed to approach it through the prism of the Immigration Rules specifically Appendix FM.
9. On 26 May 2016 First tier Tribunal Judge Holmes gave permission to appeal noting that the Judge had failed to acknowledge that the Appellant did not meet the requirements of the Immigration Rules for a grant of leave as a partner and there was no assessment of whether she could make an application for entry clearance as a partner from Morocco and there was no reference to the statutory public interest factors in section 117B of the Nationality Immigration and Asylum Act 2002.
10. At the hearing I heard submissions from Mr Bates on behalf of the Respondent that :
(a) The Judge had failed to consider the countervailing factors and ask whether the Appellant met the requirements of the Rules.
(b) There was no consideration of whether a temporary separation would be proportionate.
(c) The Judge appeared to find that her step sons and future child's citizenship were trump cards.
(d) There was no assessment of whether the financial requirements were met.
(e) He did however concede that the balance in the proportionality exercise moved back towards the Appellant where there were children involved.
11. On behalf of the Appellant Mr Brown submitted that :
(a) The issue was one of materiality as he had to accept that the Judge had failed to address the statutory criteria in her assessment under Article 8.
(b) The Judge was alive to the nature of the relationship with her husband and stepson and accepted that they could not relocate to Morocco.
(c) If the matter were to be looked at again if anything the Appellants case was stronger as she is breastfeeding a young baby who is a British Citizen.
The Law
12. Errors of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on facts or evaluation or giving legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
13. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue under argument. Disagreement with an Immigrations Judge's factual conclusions, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence that was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible.
Finding on Material Error
14. Having heard those submissions I reached the conclusion that the Tribunal made errors of law that were material to the outcome in the decision.
15. The Judge manifestly did not refer to or apply the provisions of section 117B of the Nationality Immigration and Asylum Act 2002 as she was required to in considering the public interest in her Article 8 assessment. Although this was not an appeal against a refusal under the Rules clearly the question of whether the Appellant could meet the requirements of Appendix FM was relevant to the wider public interest that the Judge was obliged to take into account. In general terms her findings did appear to suggest that the most significant factor was the nationality of her step son and her child who was due shortly after the hearing. These were errors of law The failure of the First-tier Tribunal to address and determine whether the appeal should succeed under Article 8 on the correct legal basis constitutes a clear error of law. This error I consider to be material since had the Tribunal conducted this exercise the outcome could have been different. That in my view is the correct test to apply. I therefore set that part of the decision aside.
16. Both Mr Brown and Mr Bates indicated that they were content for me to remake the decision on the basis of the evidence in the bundle and the preserved findings made in relation to Article 8 and the relationship in issue.
Remaking the Decision
17. My starting point are the preserved findings in relation to the Appellant being in a genuine relationship with a British citizen husband and step child.
18. Section 117A (2) of the 2002 Act provides that where a Tribunal is required to determine whether a decision made under the Immigration Acts would be unlawful under section 6 of the Human Rights Act 1998 it must, in considering 'the public interest question', have regard in all cases to the considerations listed in section117B of the Nationality, Immigration and Asylum Act 2002 (as amended by the Immigration Act 2014). Section 117 (3) provides that the 'public interest question' means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).
19. The S117B considerations are as follows:
"(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English-
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to-
(a) a private life, or
(b) a relationship formed with a qualifying partner,that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where-
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom."
20. The definition of "qualifying child" is found in section 117D:
"qualifying child" means a person who is under the age of 18 and who-
(a) is a British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven years or more;"
21. I have taken into account the guidance given in R (on the application of MA (Pakistan) and Others) v UT (IAC) & Anor [2016] EWCA Civ 705 which in relation to the issue of reasonableness at paragraph 45 it states:
"In my judgment, if the court should have regard to the conduct of the applicant and any other matters relevant to the public interest when applying the "unduly harsh" concept under section 117C(5), so should it when considering the question of reasonableness under section 117B(6)?..
But the critical point is that section 117C(5) is in substance a free-standing provision in the same way as section 117B(6), and even so the court in MM (Uganda) held that wider public interest considerations must be taken into account when applying the "unduly harsh" criterion. It seems to me that it must be equally so with respect to the reasonableness criterion in section 117B(6). It would not be appropriate to distinguish that decision simply because I have reservations whether it is correct. Accordingly, in line with the approach in that case, I will analyse the appeals on the basis that the Secretary of State's submission on this point is correct and that the only significance of section 117B(6) is that where the seven year rule is satisfied, it is a factor of some weight leaning in favour of leave to remain being granted."
22. As to the relevance of the Respondents policy in relation to Appendix FM and children at paragraph 46-47 it states:
"46. Even on the approach of the Secretary of State, the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise. Indeed, the Secretary of State published guidance in August 2015 in the form of Immigration Directorate Instructions entitled "Family Life (as a partner or parent) and Private Life: 10 Year Routes" in which it is expressly stated that once the seven years' residence requirement is satisfied, there need to be "strong reasons" for refusing leave (para. 11.2.4). These instructions were not in force when the cases now subject to appeal were determined, but in my view, they merely confirm what is implicit in adopting a policy of this nature. After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK. That may be less so when the children are very young because the focus of their lives will be on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child's best interests will be to remain in the UK with his parents as part of a family unit, and that must rank as a primary consideration in the proportionality assessment.
47. Even if we were applying the narrow reasonableness test where the focus is on the child alone, it would not in my view follow that leave must be granted whenever the child's best interests are in favour of remaining. I reject Mr Gill's submission that the best interest's assessment automatically resolves the reasonableness question. If Parliament had wanted the child's best interests to dictate the outcome of the leave application, it would have said so."
23. The Appellants appeals against the decision of the Respondent is on the basis that the decision is unlawful under section 6 of the Human Rights Act 1998.
24. I have determined the issue on the basis of the questions posed by Lord Bingham in Razgar [2004] UKHL 27
Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private (or as the case may be) family life?
25. I have preserved the findings made by the Judge that the Appellant and her husband are in a genuine marital relationship. The Appellants husband's child Sam appears to have a particularly close relationship to the Appellant having formed the view the first time he saw her that she was his mother (his own mother having abandoned him and returned to Iran). The Appellant and her husband now have a child together Rayan born on 14 May 2016 who is of course a British Citizen as is Sam and her husband.
If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?
26. I am satisfied that removal would have consequences of such gravity as potentially to engage the operation of Article 8.

If so, is such interference in accordance with the law?
27. I am satisfied that there is in place the legislative framework for the decision giving rise to the interference with Article 8 rights which is precise and accessible enough for the Appellant to regulate her conduct by reference to it.
If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others?
28. The interference does have legitimate aims since it is in pursuit of one of the legitimate aims set out in Article 8 (2) necessary in pursuit of the economic well being of the country through the maintenance of the requirements of a policy of immigration control. The state has the right to control the entry of non nationals into its territory and Article 8 does not mean that an individual can choose where she wishes to enjoy her private and family life.
If so, is such interference proportionate to the legitimate public end sought to be achieved?
29. In making the assessment I have also taken into account ZH (Tanzania) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2011] UKSC 4 where Lady Hale noted Article 3(1) of the UNCRC which states that "in all actions concerning children, whether undertaken by ? courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
30. Article 3 is now reflected in section 55 of the Borders, Citizenship and Immigration Act 2009 which provides that, in relation, among other things, to immigration, asylum or nationality, the Secretary of State must make arrangements for ensuring that those functions "are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom". Lady Hale stated that "any decision which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be "in accordance with the law" for the purpose of article 8(2)". Although she noted that national authorities were expected to treat the best interests of a child as "a primary consideration", she added "Of course, despite the looseness with which these terms are sometimes used, "a primary consideration" is not the same as "the primary consideration", still less as "the paramount consideration".
31. There are two children who would be affected by any decision in this case and I am satisfied on the basis of the preserved findings and the evidence of the birth of the new child that their best interests lay in being brought up by their mother and father in the UK. Sam is in full time education in primary school but given his age he is still focused on his immediate family relationship. He wrote a letter to court which expressed very clearly how much he loves his mother, the Appellant. In Sam's case I am persuaded that continuity is particularly important as he has effectively 'lost' a parent once already. Family life and continuity can only ever be in the UK.
32. I now turn to the wider proportionality assessment and I take into accounts those factors which I am obliged to consider under section 117B of the 2002 Act:
33. I would start by accepting that the Appellant now has a genuine and subsisting relationship with both her step son and her own child who are both qualifying children for the purpose of s117B6. I am satisfied that it would not be reasonable for the children to be removed and indeed Mr Bates did not seek to argue that this was a case where family life should continue in Morocco but rather suggested that a temporary separation might be appropriate to allow for an entry clearance application to be made. I am satisfied that in this case it would not be appropriate.
34. I have already noted above the unusual circumstances of Sams first meeting with the Appellant, how he believed her to be his mother and was hysterical at the prospect of her leaving him again. I accept this evidence. In this case I find it would be wholly disproportionate to expect Sam to have to go through such a separation, for an unspecified period. I also note that the Appellant has a young baby who is being breast fed. It was unclear whether the suggestion was that this British Citizen child should be separated from his brother and father and return to Morocco with his mother or stay with his father. Again I am not satisfied that either option is proportionate or indeed practical particularly given that Mr Eskandari is 59 years old and in poor enough health to receive DLA and unlikely to be able to care for a young baby on his own.
35. Even taking into account the wider public interest I am fortified in my view in this case. I note in this context that while this is not an appeal against the refusal under the Immigration Rules that the Appellant in all likelihood met the requirements of the Rules. The challenge raised in the refusal letter under Appendix FM was as to the nature of the relationship and no other issue was I accept considered. The relationship issue has been resolved in the Appellants favor. The only other matter raised by Mr Bates were the financial requirements of the Rules but I note that there is evidence in the bundle that Mr Eskandari is in receipt of the highest level of DLA and therefore the Appellant was exempt from the financial requirements of the Rules. No other challenge or suggested countervailing factor was raised by Mr Bates. Nevertheless I can see that there is accommodation as Mr Eskandari owns a house and the Appellant came to the UK to improve her English as she was already studying it when in Morocco. Given that the Rules are intended to reflect the Government's and Parliament's view of how, as a matter of public policy, the balance should be struck between the right to respect for private and family life and the public interest there would be no merit in arguing that the public interest in immigration control required the Appellants removal if she met the requirements for leave as a partner.
36. While I accept that the relationship and any private life was established while the Appellants status was precarious I am nevertheless persuaded that the particular circumstances underpinning the Appellants life in the United Kingdom taken together cumulatively outweigh the legitimate purpose of the Appellants removal.
Decision
23. There was an error on a point of law in the decision of the First-tier Tribunal with regard to Article 8 such that the decision is set aside
24. I remake the appeal.
25. I allow the appeal under Article 8 of the ECHR.

Signed Date 4.1.2017
Deputy Upper Tribunal Judge Birrell

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make no fee award of any fee which has been paid or may be payable.

Signed
Debra Birrell
Deputy Upper Tribunal Judge Date4.1.2017