Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11549/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On March 16, 2017
On March 22, 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

MR JOHN MWAURA MUNGAI
(NO ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
Appellant Mr Timpson, Counsel, instructed by Eden Law
Respondent Mr Bates (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. I do not make an anonymity order under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended).

2. The appellant is a national of Kenya. On January 10, 2015 the appellant was encountered by police. He claimed asylum on February 4, 2015 but the respondent refused his application on August 9, 2015. The appellant appealed that decision under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 and his appeal came before Judge of the First-tier Tribunal T Jones (hereinafter referred to as “the Judge”) on April 15, 2016. In a decision promulgated on April 28, 2016 he refused his appeal on asylum and human rights grounds.

3. The appellant appealed the Judge’s decision and the matter ultimately came before Deputy Upper Tribunal Judge Hall on January 17, 2017 and in a decision promulgated on January 19, 2017 he found no error of law in respect of the asylum decision but accepted, as did the respondent, the Judge had materially erred by failing to consider the claim under the Immigration Rules as distinct from article 8 ECHR. He set aside the decision under article 8 ECHR and directed there be a further hearing in relation to Appendix FM, paragraph 276ADE HC 395 and article 8 ECHR.

4. The matter came before me on the above date I took oral evidence from the appellant and heard submissions from both Mr Bates and Mr Timpson.

5. It was agreed that I would have to consider the appellant’s appeal having regard to:

a. Section R-LTRPT of Appendix FM of the Immigration Rules with specific reference to Section E-ELTRP 2.4 and Section EX.1(a) of Appendix FM.

b. Paragraph 276ADE(vi) HC 395

c. Article 8 ECHR and Section 117B(6) of the 2002 Act.

THE APPELLANT’S CASE

6. The appellant entered the on January 21, 1998 as a student and his leave was extended with various applications until October 31, 2008. The appellant accepts that after this date he was here unlawfully.

7. In 2006 he met Patience Nyamutora and she gave birth to his daughter, Charlene, on December 30, 2008. They lived together in Staines upon Thames until 2012. They are no longer a couple but the appellant stated in his oral evidence that he played a major role in his daughter’s life in that he continued to see her every month and spoke to her at least every other day. He had produced evidence of a number of trips he had made on December 14, 2015, June 15, September 2, September 30 and October 13, 2016.

8. He was able to name her teacher and doctor and stated that he was part of the decision about which school she attended and which doctors she went to. His former partner was unable to attend today’s hearing due to work and child care issues.

9. Under cross-examination he accepted he had not produced a letter from the school about the role he played but claimed that he received emails from the school as evidenced by documents in the appellant’s bundle. His former partner had provided a letter but had not submitted any identification as he did not appreciate such a document would be needed and he did not realise she would be unable to attend the hearing until a day or so ago although he had asked her in February to attend. She could not give an explanation why she had not explained in her letter she would be unable to attend the hearing but presumed this was because she did not know until after she had sent the letter.

10. When questioned about the photographs in the appellant’s bundle he confirmed they were taken in January/February, July, September and November/December 2016.

11. A letter from his former partner dated March 6, 2017 confirmed he had been present when the child was born and continued to play a major role in her upbringing having taken her to school when he lived with them. She stated that he called regularly and made regular visits and that her daughter constantly wanted to talk to him and was very excited when she knew her father was coming to see her. Emails from the school demonstrated that the appellant was being kept informed about his daughter’s school activities.

12. He invited the Tribunal to allow his appeal.

SUBMISSIONS

13. Mr Bates relied on the refusal letter and submitted that in order to succeed under Appendix FM the appellant had to satisfy Section E-LTRPT 2.4(b) and show that he had and intended to continue to take an active role in his daughter’s upbringing. Whilst he acknowledged there was an email from the child’s mother, Mr Bates pointed to her absence from the hearing and the fact there was no identification from the child’s mother and there was nothing in her letter to suggest she was either attending or not. There was no mention of any work or child care issues and her absence prevented the respondent from questioning her about matters raised by the appellant in his oral evidence.

14. Mr Bates noted what the appellant said about contact with the school but again there was no evidence which supported his claim that he played any role in her schooling. The mere fact he received an email did not mean he played any role. It was a generic email sent to all persons on a mailing list. Similarly, there was nothing from the doctor’s surgery that supported his claim he played any role in medical issues. He submitted the appellant failed to meet the mandatory requirement of Section E-LTRPT of Appendix FM and his appeal should be refused.

15. The appellant may well have been here since 1998 but he needed to accrue twenty years to succeed under paragraph 276ADE HC 395 or alternatively he had to show very significant obstacles to him enjoying a private life in Kenya and he had failed to do this.

16. Finally, in considering article 8 ECHR he submitted that if the appellant could not satisfy Appendix FM and Section EX.1 he would not show circumstances that merited consideration outside of the Rules as the issue was the same. Section 117B(6) applied the same reasonableness test as Section EX.1 did. His leave had always been precarious and for a substantial part of his time here he had been here unlawfully. He invited me to dismiss the claim.

17. Mr Timpson submitted that the respondent accepted that it would not be reasonable to expect Charlene, a British citizen aged 8, to go and live in Kenya. Accordingly, if the Tribunal accepted he had played and continued to play and active role in her upbringing then the appellant must succeed under Appendix FM. The Tribunal had oral evidence of his involvement and he invited me to find the Rule was met and pointed to the letter from the child’s mother, the emails from the school, the photographs and the bus tickets as written evidence and this was on top of the appellant’s oral evidence. As for a claim under paragraph 276ADE HC 395 he submitted the appellant had been here for a long time and had lost contact with life in Kenya. Alternatively, he submitted Section 117B(6) applied and the appellant’s appeal should be allowed under article 8 ECHR.

DISCUSSION AND FINDINGS

18. When Deputy Upper Tribunal Judge Hall found an error in law he directed that today’s appeal be limited to consideration under the Rules and article 8 ECHR.

19. Both representatives agreed that in order to succeed with his appeal under the Rules the appellant had to show he satisfied Section E-LTRPT 2.4 which states:

(a) The applicant must provide evidence that they have either-
(i) sole parental responsibility for the child; or
(ii) direct access (in person) to the child, as agreed with the parent or carer with whom the child normally lives or as ordered by a court in the UK; and
(b) The applicant must provide evidence that they are taking, and intend to continue to take, an active role in the child’s upbringing.

20. Mr Bates whilst raising a point about the letter from the mother did not seem to be suggesting there was no direct access between the appellant and his daughter. The Rules do not require a court order and under the Children Act 1989 no order is necessary where the parents agree on contact.

21. The issue for me is whether the appellant had provided evidence that he is taking, and intends to continue to take, an active role in his daughter’s upbringing.

22. The appellant had been unrepresented before the First-tier and he produced nothing to support his case. However, it appears that he has been represented since June 2016 and it was therefore disappointing to see a lack of evidence. There was no letter from the school or the surgery about matters raised by the appellant in his own oral evidence. There was also no statement from the appellant apart from the statement he gave for the purposes of his asylum appeal and that statement is dated June 12, 2015.

23. The appellant stated he visited his daughter every month and to support his claim he produced copies of bookings showing one trip in December 2015, one trip in June 2016, two trips in September 2016 and one trip in October 2016. He also dated photographs in the bundle but these did not necessarily coincide with his bus trips. The letter from his former partner did not provide any support as to the amount of trips he had made in the last fifteen months and her letter told me nothing about what input he had into his daughter’s schooling or medical history.

24. The appellant stated that his former partner only informed him on Tuesday she could not attend but he produced no email to support this. In fact, her email was only ten days before the hearing but she never mentioned any intention to visit. No evidence of birthday cards or even cards from his daughter to him were adduced. As I stated above the evidence adduced was extremely disappointing and the appellant carries the burden of proof in the appeal.

25. I am prepared to accept that the appellant sees his daughter but bearing in mind he has been living apart from her since 2012 I find the evidence adduced lacking in substance. There is evidence of recent visits that have occurred since he lost his appeal in the First-tier Tribunal in April 2016-all evidence of his bus trips, bar one from December 2015, post-date that refusal. The emails from the school do not demonstrate he is involved in the choice of school even more so when the appellant stated she attended a private school. There is nothing from the teachers to support his claimed level of involvement and there is nothing from the surgery to show he knows anything about her medical circumstances.

26. The Rules do not suggest merely being the natural father enables an appellant to succeed. He must show considerably more and based on the evidence before me I find he has failed to meet Section E-LTRPT of Appendix FM and therefore his appeal under the Rules fails.

27. The appellant raised a claim under paragraph 276ADE HC 395. No evidence of private life was adduced and in any event he only came to this country as a student and his leave has always been that of a student.

28. In Treebhawon and Others (NIAA 2002 Part 5A - compelling circumstances test) [2017] UKUT 13 (IAC) it was held at paragraph [37] that “the test, ‘very significant obstacles’, erects a self-evidently elevated threshold, such that mere hardship, mere difficulty, mere hurdles and mere upheaval or inconvenience, even where multiplied, will generally be insufficient in this context”.

29. The appellant’s statement referred to his fear of the Secret Service but that claim was rejected. The appellant has siblings some of whom live in Kenya as do his parents. He has not highlighted any matters that would raise “very significant obstacles” and accordingly I am not satisfied that the appellant has demonstrated he has met paragraph 276ADE(vi) HC 395.

30. I have also gone on to consider whether to allow the appeal outside of the Rules under article 8 ECHR. Applying the guidance in Razgar [2004] UKHL 00027 I find that the appellant has family life with Charlene and removing him would interfere with the level of contact he currently enjoys albeit it would be in accordance with the law as immigration control was necessary.

31. In considering proportionality I have had regard to Section 117B of the 2002 Act. Section 117B(6) of the Act applies because Charlene is a British citizen and I have to consider whether it would be reasonable to expect the child to leave the United Kingdom.

32. The position is and has been for some time that the appellant and his daughter live in different parts of the country. He has made limited trips to see his daughter according to the evidence before me and by refusing the application I would not be requiring the child to leave the country. It goes without saying that having some direct contact is better than having no direct contact but this is a case where the parties have lived apart for over four years.

33. Mr Bates does not argue that the child should accompany him to Kenya but in assessing Section 117B(6) I have had regard to the level of evidence currently before me. Applying section 55 of the Borders, Immigration and Citizenship Act 2009 I find it would be in the child’s best interest if the appellant was in the same country but that is not a deciding factor in this case as I must have regard to other factors under section 117B of the 2002 Act.

34. The appellant started his relationship with the child’s mother whilst here as a student. The Supreme Court in R (on the application of Agyarko) v Secretary Of State For The Home Department : R (on the application of Ikuga) v Secretary Of State For The Home Department [2017] UKSC 11 considered how “precarious” should be interpreted and stated-

“…“precariousness” is not a preliminary hurdle to be overcome. Rather, the fact that family life has been established by an applicant in the full knowledge that his stay in the UK was unlawful or precarious affects the weight to be attached to it in the balancing exercise.”

35. The Immigration Directorate Instructions state that the Rules themselves reflect the position of the Secretary of State on proportionality and reflect how the balance should be struck between individual rights and the public interest. Only in exceptional circumstances will a decision taken in accordance with the Rules lead to a disproportionate outcome. This is likely to occur “only rarely” and involved applying the test of proportionality to each case, a process which was compatible with art.8, MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192.

36. In considering proportionality the real question was whether a fair balance had been struck between the interest of the individual and that of the state in upholding its immigration policy. Under domestic law that question was determined by applying the structured approach to proportionality which had been followed since Huang v Secretary of State for the Home Department [2007] UKHL 11, HA (Iraq) v Secretary of State for the Home Department [2016] UKSC 60 followed, Jeunesse v Netherlands (12738/10) (2015) 60 E.H.R.R. 17 applied (see paras 40-41).

37. The appellant’s immigration status is a factor I have to take into account as his reliance on the state to support himself as he has always had a restricted visa in this country. Although he speaks English this is a neutral factor rather than being a positive factor.

38. The appellant came as a student and whilst here embarked on a relationship with his former partner and that led to Charlene being born. Their family life has occurred since he has been here unlawfully and his immigration status has always been precarious. Whilst he has had some contact I am satisfied that the majority of the contact he enjoys (phone contact) can occur wherever the appellant lives. I am not satisfied his level of involvement is as he claimed although I accept he does have some direct contact.

39. Taking all this evidence together and taking into account my earlier findings I am satisfied that removing the appellant would be proportionate.
DECISION

40. There was a material error in law. I have remade the decision and I dismiss his appeal under both the Immigration Rules and Article 8 ECHR.

Signed: Dated:

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD

I make no order for costs as I have dismissed the appeal.

Signed: Dated:

Deputy Upper Tribunal Judge Alis