Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11063/2015

THE IMMIGRATION ACTS

Heard at City Centre Tower, Birmingham
Decision & Reasons Promulgated
On 31st October 2016
On 16th November 2016

Before

DEPUTY upper tribunal JUDGE RENTON

Between

H A M
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mrs O Duru, Counsel instructed by Jemek Solicitors
For the Respondent: Mrs H Abone, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The Appellant is a female citizen of Iraq born on 1st January 1994. Having failed to enter the UK illegally on 26th September 2014, the Appellant returned on 15th December 2014 and applied for asylum on 2nd January 2015. That application was refused for the reasons given in the Respondent's letter of 22nd July 2015. The Appellant appealed, and her appeal was heard by Judge of the First-tier Tribunal Hands (the Judge) sitting at North Shields on 28th April 2016. She decided to dismiss the appeal on asylum, humanitarian protection, and human rights grounds for the reasons given in her Decision dated 10th May 2016. The Appellant sought leave to appeal that decision, and eventually on 21st July 2016 such permission was granted.
Error of Law
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside. Leave to appeal was granted on only one ground, being that the Judge had arguably erred in law in considering the best interests of the Appellant's child DBA born on 25th September 2015.
3. The Judge accepted that the Appellant's child was a British citizen as her father had indefinite leave to remain in the UK. However, the Judge found that the Appellant did not meet the requirements of Appendix FM of HC 395 either as a spouse or as a parent. As regards paragraph EX.1, the Judge was satisfied that the Appellant had a genuine and subsisting relationship with her child, but that it would not be unreasonable to expect that child to return to Iraq with her mother. Alternatively, the child could remain in the UK with her father, or her father could accompany her to Iraq. This was because he had been granted indefinite leave to remain not on asylum grounds but under the legacy provisions.
4. The Judge next considered paragraph 276ADE of HC 395 but again found that it did not assist the Appellant on the basis of the length of time the Appellant had spent in the UK. Finally, the Judge considered the Appellant's Article 8 ECHR rights outside the Immigration Rules but found that any interference with the family life of the Appellant was proportionate.
5. At the hearing, Mrs Duru referred to the grounds of application and her Skeleton Argument and submitted that the Judge had erred in law in coming to these conclusions. In particular, the Judge had failed to treat the best interests of the Appellant's child as a primary consideration as required by the decision in ZH (Tanzania) v SSHD [2011] UKSC 4 and MK (best interests of child) India [2011] UKUT 00475 (IAC). The Judge had not treated those interests as all embracing and had taken only a narrow view of them relating to the possibility of the child returning to Iraq with her mother. The Judge had failed to apply properly the provisions of Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 in the light of the decision in Treebhawon and Others (Section 117B(6)) [2015] UKUT 674 (IAC).
6. In response, Mrs Abone argued that there was no such error of law. She referred to her Rule 24 response and submitted that the Judge had directed herself appropriately, particularly as regards the best interests of the child. The Judge had made a full assessment of the circumstances and the options open to the Appellant and had come to a conclusion which she had fully reasoned. The child was not being required to leave the UK. It was open for her parents to decide that she would remain living in the UK even if the Appellant returned to Iraq. That would not be unreasonable, particularly if the child's separation from her mother was only temporary.
7. I find no material error of law in the decision of the Judge which I therefore do not set aside. Mrs Duru's argument is that the Judge failed to treat the best interests of the Appellant's lone child as a primary consideration when considering paragraph EX.1 of Appendix FM of HC 395, and Section 117B(6) of the 2002 Act in terms of whether it would be reasonable or not for the child to leave the UK and return to Iraq with her mother. The Judge dealt with this issue at paragraphs 50 and 54 to 58 inclusive of the Decision. At the time of the hearing before the Judge, the child was barely 6 months old.
8. At paragraph 54 of the decision, the Judge stated that she had to consider the best interests of the child, and in my view it is apparent from what she subsequently wrote that she did so. In any event, there is no error of law in the Judge considering that the child did not have to leave the UK. It was up to her parents to decide where she would live if the Appellant had to leave the UK. The Judge was right to consider that fact determinative of the child's best interests when the child was so young.
9. My judgment is that the Judge did not fail to consider the best interests of the child as a primary consideration and therefore I find no error of law in her decision.

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 reasons given by the First-tier Tribunal.

Signed Date

Deputy Upper Tribunal Judge Renton