Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13298/2015

THE IMMIGRATION ACTS

Heard in Birmingham
Decision & Reasons Promulgated
On 6 March 2017
On 15 March 2017

Before

UPPER TRIBUNAL JUDGE SMITH

Between

MISS L E I
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Mohzam, Solicitor, Sultan Lloyd solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity order was made by the First-tier Tribunal. This was originally an appeal also on protection grounds and additionally involves dependents who are minor children. It is therefore appropriate to continue that order. Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION AND REASONS
Background
1. The Appellant appeals against the decision of First-tier Tribunal Judge S C Clarke promulgated on 22 August 2016 (“the Decision”). By the Decision the Judge dismissed the Appellant's appeal against the Respondent's decision dated 12 November 2015 refusing her protection and human rights claims and those of her two minor daughters who are her dependents in this appeal. They are now aged just under six years and just over two years.
2. The background facts of the Appellant’s case are not in dispute. She is a national of Tanzania. She entered the UK on 7 December 2007 as a student. Her leave was extended in that category until November 2010. Thereafter, she overstayed. She applied for asylum on 1 March 2014. She was arrested for affray on 21 December 2014.
3. The Judge dismissed the appeal on both protection and human rights grounds. Permission to appeal was refused on protection grounds but granted on human rights grounds by First-tier Tribunal Judge Hodgkinson on 14 September 2016 in the following terms:-
“[5] In relation to the third ground, it is arguable that the Judge erred by failing to give adequate, or any, consideration to the fact that the removal of the appellant with her daughters might permanently end the relationship between the appellant’s elder daughter and her biological father. There is no indication of his circumstances or status in the United Kingdom, or whether it might be feasible for him to travel to Tanzania, either for visits or to live there. There is little information available as to the quality of the relationship between the elder daughter and her father and no indication as to what the impact might be upon him of his daughter’s removal. This ground reveals an arguable error of law and permission is granted limited to Article 8 in relation to family and private life. For the avoidance of doubt, permission is not granted in relation to protection issues.”
4. The appeal comes before me to determine whether there is a material error of law in the Decision and if so to either re-make the decision or remit to the First-tier Tribunal to do so.
Grounds and submissions
5. Mr Mohzam relied on the Appellant’s grounds. The Appellant’s third ground in relation to human rights is shortly stated and I can therefore set this out in full as follows:-
“The Judge’s assessment of the ‘best interests’ is also flawed. The fact that the eldest child only recently has established a relationship with her father should not be a determinative factor – it is not the duration but the quality and the depth of the relationship that matters. Relationship between a biological father and child always gives rise to family life under Art. 8 ECHR. The fact that if the Appellant is returned to Tanzania with her two daughters, there will be a permanent separation of the father and daughter has been ignored.”
6. In his oral submissions, I explored with Mr Mohzam what evidence there was before the Judge as to the relationship between the eldest child (“J”) and her father (“Mr H”), the effect of removal on that relationship and the father’s own status in the UK. Mr Mohzam accepted that this was mainly limited to Mr H’s own witness statement which is short (and does not adequately cover some of the issues at all). He confirmed that there is no update as to Mr H’s application for indefinite leave and did not appear to know the basis on which this was made. Insofar as that appears to rely on Mr H’s length of residence, it appears unlikely that an application to remain would succeed as he has been in the UK for under twenty years. Mr Mohzam submitted nonetheless that the Judge was obliged to take into account the relationship between Mr H and J when assessing best interests. I asked why, on the evidence, the Judge was not entitled to reach the finding she did that the child’s best interests were to remain with her mother. Mr Mohzam could submit only that the Judge failed to take the contact between Mr H and J properly into account.
7. Mr Mohzam also submitted that the Judge failed to take into account whether it was reasonable to expect J to return to Tanzania with her mother in circumstances where that would break contact with Mr H. Mr H is no longer in a relationship with the Appellant. He was unable to direct me to any evidence to show that Mr H could not go to Tanzania if he wished, at least as a visitor, even though he is Ghanaian. Although there is a claim that removal of J would “destroy” his relationship with J, no particulars are provided as to why he could not visit or at least continue the relationship by contact other than face-to-face.
8. I asked Mr Mills about Mr H’s application for status and whether there was any update. Mr Mills indicated that he had been unable to trace Mr H on the Home Office records system at all. Mr Mills submitted that the challenge to the Decision came down to a question of evidence on the issues which arise for consideration namely the strength of the relationship between Mr H and J, Mr H’s status in the UK and the degree of difficulty for Mr H and J in maintaining their relationship at long distance. If the Appellant had put forward cogent evidence on those issues, the challenge to the Judge’s assessment of best interests and Article 8 might be susceptible to criticism. However, in this case the evidence was that the children were brought up by their mother almost exclusively. The finding therefore that the best interests of both children is to remain with their mother is unimpeachable. Once that is accepted, bearing in mind also that neither child can succeed under the Immigration Rules, it follows that it would be reasonable to expect them to leave the UK with their mother, particularly taking into account the Appellant’s immigration history.
9. At the end of the hearing, I indicated that I reserved my decision in relation to whether there is an error of law in the Decision and would issue my decision in writing. Both representatives agreed that if I found an error of law, the decision should be re-made in the Upper Tribunal. No application was made by the Appellant to adduce further evidence. Accordingly, I indicated that I would, if necessary, re-make the decision without a further hearing on the papers based on the evidence before the First-tier Tribunal Judge.
Discussion and conclusions
10. I start by dealing with the evidence which was before the Judge on the Article 8/best interests issues since, as I have already observed, this was not extensive. The only evidence other than the witness statements of the Appellant and Mr H in relation to the private and family lives of the Appellant and her children are a few letters in support including from the family’s support worker which attests to the close relationship between the Appellant and her children. None of those mention Mr H or his relationship with J. The Appellant’s own statement confirms that she is no longer in a relationship with Mr H. Indeed, she says that she is now in a relationship with a British man (although I can find no reference to this relationship in her oral evidence before the First-tier Tribunal Judge). In relation to the contact between J and Mr H, she says this:
“[6] On 26 March 2011 I gave birth to my first child [J]. [J]’s father is [SH]. He is originally from Ghana. I had a brief relationship with him and I became pregnant. Earlier I did not have any contact with [Mr H] and he did not play any part in [J]’s life. However, he has changed now and is maintaining regular contact with [J]. [J] and {Mr H] have now built up a bond and [J] really likes his [sic] dad.”
11. Mr H’s statement dated just before the First-tier Tribunal hearing is so short that I can set it out in full:-
“[1] I was born in Accra on 3 December 1980. I am a national of Ghana. I have been in the UK for about 15 years. My legal representatives are in the process of sorting out my indefinite leave. I am the father of the Appellant’s first child [J]. I had a relationship with her mother. Although we broke up and did not have contact with her or with my daughter for some time, I have later re-established the contact. I have been playing an important role in [J]’s life.
[2] J and I get on very well. I regularly visit her and talk to her over the phone. I buy her gifts and take her to different places. I would want to carry on with my duties in contributing with the upbringing of [J].
[3] If the Appellant is returned to Tanzania, she will take [J] with her. This means that I shall not be able to see [J] again. I cannot go to Tanzania to visit her. It will destroy may family life with her. Further, I am worried that [J] may be forced to go through FGM there. The Appellant comes from a Muslim family, but I am a Christian and I want my daughter to be brought up as a Christian.
[4] As I am in the process of obtaining my settlement, I believe that based on this J can in future apply for registration as a British citizen.
[5] Although I have broken up from the Appellant, as she is the mother of my daughter, I now maintain a good friendship with her and I wholeheartedly support her appeal.
[6] I would say that the Appellant is a good mother and she takes good care of [J] and her other daughter.
I pray that her appeal is allowed so that I can continue my family life with my daughter.
[statement of truth]”
I observe that the issue of FGM was part of the protection claim which was rejected and the appeal against that dismissed. I also note in passing that Mr H is said to live in London whereas the Appellant and her children live in Dudley. That distance does not of course mean that there could be no face-to-face contact between Mr H and J but probably suggests, as does the other evidence, that such contact (at least on a face-to-face basis) is regular rather than very frequent.
12. I turn then to consider the way in which the contact relationship was dealt with by the Judge. Both the Appellant and Mr H gave oral evidence. The summary of that evidence is at [12] of the Decision and on this issue is limited to the sentence at [12(xii)] that “… her eldest daughter, [J], has formed a close relationship with her father, who she now sees on a regular basis.”
13. In her conclusions the Judge makes reference at [20] of the Decision to the fact that, when interviewed in relation to her asylum claim in March 2015, the Appellant said that neither of her daughters had contact with their fathers. It is there noted that the Appellant’s evidence was that J had resumed contact with her father in “the summer of 2015”. The Judge then makes the following comments about the oral evidence given on this issue as follows:-
“[21] Although the Appellant and Mr H gave consistent evidence that J had been having contact with her father for some months, there were inconsistencies in their evidence as to the frequency of and location at which the contact had been taking place. It was also unclear to what extent Mr H financially supported his daughter.”
14. That then was the evidential backdrop against which the Judge had to assess the issue which is challenged before me. The Judge began as she was required to do with the best interests of the minor children. She properly directed herself that this is a primary but not paramount consideration. The Judge then turned to consider the relationship between J and Mr H as follows:-
“[37] Although there is evidence before me that the Appellant’s elder child has a subsisting parental relationship with her father, this has only been the case for a short period of time. There is contact between them, but the regularity and nature of that contact is far from clear. The Appellant and [Mr H] ended their relationship shortly after she was born. The Appellant’s younger child has no contact with her father.
[38] It is also clear from the evidence before me that throughout the children’s lives the Appellant alone has made the major decisions. The children are both young, in good health and would be able to adapt to life in Tanzania. In the circumstances I find it is in the best interests of the children that they remain with their mother.”
15. Mr Mohzam’s submission that this consideration fails to take into account the qualitative relationship ignores one fundamental difficulty and that is, as the Judge notes, that the regularity and nature of the contact was unclear. There was a lack of evidence about the quality of the relationship therefore and the Judge could not be expected to take into account something which was not in evidence.
16. Turning then to the second aspect of the Appellant’s grounds on this issue, the complaint is that the Judge failed to take into account in the Appellant’s favour the relationship between J and Mr H when considering Article 8 outside the Rules. It is accepted that J cannot succeed within the Rules as she has not been in the UK for seven years and is not British. Neither parent is settled in the UK. The Judge conducted an Article 8 assessment from [40] onwards of the Decision. She accepted at [40] that removal would interfere with the Appellant’s private life and that the issue was therefore one of proportionality. She then went on to apply section 117B Nationality, Immigration and Asylum Act 2002 (section 117B) as she was required to do. Having taken into account the Appellant’s lack of status and other relevant aspects of the public interest, the Judge concluded that removal would be proportionate.
17. There is no criticism of that assessment so far as the Appellant herself is concerned nor could there be. The essence of the complaint is that the assessment fails to factor in the impact of removal on the relationship between J and Mr H. There are three reasons why that submission fails.
18. First, the fact of that relationship and, so far as possible, the importance of it to J was considered at [37] when considering where J’s best interests lay. That therefore already formed part of the Article 8 assessment as a primary consideration.
19. Second, even if the Judge ought to have repeated that removal would interfere with the relationship, her consideration of the issue would be impacted by the same evidential deficit. Although Mr H says that the relationship cannot be maintained if J is removed and that removal would destroy the relationship, he has produced no detail of why he could not maintain contact by visits to Tanzania or by other communication as he has now. The very vague evidence as to the nature of the evidence now also remains relevant and as the Judge has found and was entitled to find, the nature of that relationship is not such as to impact on J’s interests as being to remain with her mother.
20. Third, even if the Judge ought to have referred to the impact on this relationship in the Appellant’s favour, the effect of the submission is that the Judge ought to have found that the public interest is outweighed by a relationship between a child aged six years who apparently had no contact with her father for the first four years of her life and now has some intermittent contact of an indeterminate nature and her father who himself has no status to remain in the UK. It is inconceivable that this could be the outcome of a proper Article 8 assessment. Any error is therefore immaterial.
21. On the basis of the evidence before her, the Judge was clearly entitled to find as she did in relation to what J’s best interests required. Those did not require that the Appellant and J be permitted to remain in the UK so that J could continue some face-to-face contact in a relationship formed only a year previously with a father who himself apparently has no permission to remain in the UK. Once that is accepted, it is inconceivable that the Article 8 assessment could favour the Appellant given her poor immigration history.
22. For those reasons, I am satisfied that the Decision did not involve the making of a material error of law. I therefore uphold the Decision.

DECISION
The First-tier Tribunal Decision did not involve the making of a material error on a point of law. I therefore uphold the First-tier Tribunal Decision of Judge S C Clarke promulgated on 22 August 2016 with the consequence that the Appellant’s appeal is dismissed.

Signed Dated: 14 March 2017
Upper Tribunal Judge Smith