Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00077/2014

THE IMMIGRATION ACTS

Heard at: Field House
Decision & Reasons Promulgated
On: 29 September 2016
On: 30 September 2016

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

abbas maqsood
Respondent

Representation:
For the Appellant: Mr S Kandola, Senior Home Office Presenting Officer
For the Respondent: Ms E Daykin, instructed by AH Solicitors

DECISION AND REASONS
1. This is an appeal by the Secretary of State for the Home Department against the decision of the First-tier Tribunal allowing Mr Maqsood's appeal against the respondent's decision that section 32(5) of the UK Borders Act 2007 applied.
2. For the purposes of this decision, I shall hereinafter refer to the Secretary of State as the respondent and Mr Maqsood as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.
3. The appellant, a citizen of Pakistan, claims to have entered the UK at the age of ten years with his uncle, using a fraudulently obtained British passport in the name of Sajjad Arif. He obtained subsequent replacement passports in the name of Shahzad Anjam Arif after reporting the passport lost and in October 2008 was issued with a replacement passport in the name of Abbas Maqsood after claiming to have changed his name by deed poll. He used that passport to take frequent flights between the UK, UAE, Saudi Arabia and Pakistan, but was eventually stopped at Luton Airport, on 17 March 2010, after returning with his partner from Spain, when the immigration officer was satisfied that the passport had been fraudulently obtained and that he was not a British citizen. On 4 June 2010 a decision was made refusing him leave to enter and on 2 September 2010 his appeal against that decision was dismissed by the First-tier Tribunal.
4. On 19 August 2010 the appellant was convicted of possession of false/ improperly obtained identity documents and obtaining property by deception and was sentenced to 12 months' imprisonment. On 6 January 2011 a Deportation Order was signed against him and a decision was made on 18 December 2013 (following the withdrawal of a previous decision) that section 32(5) of the UK Borders Act 2007 applied.
5. In the deportation decision, the respondent referred to the fact that the appellant had two sons from a previous relationship with [NK] but noted that there was no evidence of any contact with those children and no evidence of a genuine and subsisting relationship. Likewise, he had a daughter from a subsequent relationship with [RT], but again there was no evidence of contact and no genuine and subsisting relationship. The respondent accepted that the appellant had a genuine and subsisting relationship with his two sons and his daughter from his current relationship with [AM], but considered that family life could continue between them in Pakistan and that they were otherwise able to remain with their mother, their primary care giver, in the UK. The respondent also accepted that the appellant had a genuine and subsisting relationship with his partner [AM], but again considered that family life could continue between them in Pakistan. The respondent therefore concluded that the appellant could not meet the requirements in paragraph 399(a) and (b) of the immigration rules, and also considered that the requirements in paragraph 399A had not been met and that there were no exceptional circumstances outweighing the public interest in his deportation for the purposes of paragraph 398.
6. The appellant appealed that decision and his appeal was heard in the First-tier Tribunal on 9 July 2014 by First-tier Tribunal Judge Lingam and Mr G F Sandall, a non-legal member, sitting as a panel.
Appeal before the First-tier Tribunal
7. The panel made various adverse credibility findings about the appellant, rejecting his account of the timing and circumstances of his entry into the UK and the circumstances in which he had obtained his British passports, and also placing weight upon a social worker's report referring to incidents of domestic violence and abuse in his past and current relationships. The panel accepted the findings of a subsequent social worker in regard to his contact with his daughter from his second relationship.
8. The evidence before the panel was that the appellant and his partner had three children together. His partner had given birth to twin girls after their first son was born, but one of the twins had since passed away. His partner had then had a second son and was currently pregnant with their fourth child. The panel considered the immigration rules as they were at that time, finding that, whilst the appellant had a genuine and subsisting relationship with his daughter from his second relationship, he did not have a parental role and therefore did not meet the requirements of paragraph 399(a) in that respect. With regard to the three children from his current relationship, the panel accepted that the appellant had a genuine and subsisting relationship with those children and considered that, whilst his wife was expecting their fifth child, he was the main carer for the other children. The panel also considered that the appellant's family members could not be expected to relocate outside the EU. They found that the requirements of paragraph 399(a) had therefore been met and that the appellant succeeded under the immigration rules. The panel further concluded that there were exceptional factors weighing in the appellant's favour under Article 8. They allowed the appeal under the immigration rules and under the ECHR.
9. The respondent sought, and was granted, permission to appeal to the Upper Tribunal, on the basis that the First-tier Tribunal had arguably erred by failing to consider section 117 of the Nationality, Immigration and Asylum Act 2002 and that the findings under paragraph 399(a) were arguably inadequately reasoned.
10. The appeal came before me on 29 September 2016.
Consideration and Findings
11. Having heard full submissions from both parties, and carefully considered those submissions, I conclude that there are fatal flaws in the panel's decision such that it cannot stand.
12. It is not in dispute that legislative changes occurred between the panel hearing the appeal and their decision being promulgated, with the coming into force of relevant parts of the Immigration Act 2014 on 28 July 2014, which introduced amendments to the immigration rules and brought section 117 of the 2002 Act into force. Accordingly the immigration rules considered by the panel were not those in force at the time of their decision and neither was there any consideration given to the public interest factors in section 117. In accordance with the decision in YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292 the relevant date for consideration of those provisions would have been the date of promulgation of the decision, contrary to the assertion made in the appellant's grounds seeking permission. It was Ms Daykin's submission that even if the panel ought to have considered the new rules, any error in that respect was in any event immaterial since it would have led to the same result, and that section 117 had been considered in substance, if not in form.
13. It seems to me that whatever version of the rules was considered, the panel's decision was unsustainable.
14. The panel's consideration of paragraph 399(a) is not clearly set out in their decision and is not clearly particularised, as the grounds refer at [6], and there are no proper findings on the two separate requirements in paragraph 399(a)(ii)(a) and (b). However it appears that the issue in paragraph 399(a)(ii)(a), of whether it would be unreasonable to expect the children to leave the UK, was being addressed by the panel at [67] and [68] and that the panel considered the criteria in paragraph 399(a)(ii)(b) at [69].
15. The panel's assessment of the requirements in paragraph 399(a)(ii)(a) at [67] and [68] is based almost exclusively on the principles in Sanade and others (British children - Zambrano - Dereci) India [2012] UKUT 48. I find myself entirely in agreement with Mr Kandola that the panel erred in law in that respect. Firstly, they erred because their conclusion (and also Ms Daykin's submission relying on the case of Secretary of State for the Home Department v CS (Judgment : Citizenship of the Union) [2016] EUECJ C-304/14) relied upon the appellant being the main carer for his wife and children, with the implication being that it would result in the British family members being compelled to leave the UK if he was deported. However the panel's finding that the appellant was the main carer was inadequately reasoned and unsustainable on the evidence before the Tribunal, particularly as it was based upon little more than the temporary situation of his wife's pregnancy. Secondly, as the respondent's grounds assert, the decision in Sanade has been overtaken by the introduction on 9 July 2012 of the provisions of the Article 8 compliant immigration rules. Thirdly, the almost exclusive reliance upon the provisions in Sanade was contrary to the holistic approach advocated in KMO (section 117 - unduly harsh) [2015] UKUT 543 and upheld in MM (Uganda) [2016] EWCA Civ 450.
16. With regard to the second part of the rule, it appears that the panel, at [69], were addressing the requirement in paragraph 399(a)(ii)(b). However, as stated above, their finding that there was no other family member able to care for the children in the UK seems to me to be simply unsustainable on the evidence before them. Accordingly I consider that the panel's decision under the immigration rules was inadequately reasoned and was based upon a misunderstanding and misapplication of the law and the rules.
17. As regards the second ground, whilst reference was made at [61] and [82] to MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, the panel's consideration of Article 8 outside the immigration rules at [71] to [97] appears to have been undertaken without any reference to paragraph 398 and on the basis of a Razgar, R (on the Application of) v. Sectretary of State for the Home Department [2004] UKHL 27 proportionality assessment outside the relevant considerations in deportation cases. With regard to the public interest considerations in section 117B and C, which were introduced prior to the promulgation of the panel's decision, it was Ms Dakin's submission that the relevant factors had been considered in substance, if not in form. However I do not agree. I find little, if any, consideration given by the panel to the weighty public interests in their findings at paragraphs [83] to [97], and I agree with Mr Kandola that the panel erred by overly focussing on the best interests of the children, contrary to the guidance in MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705.
18. For all of these reasons I find that the First-tier Tribunal erred in law and that the decision has to be set aside and re-made.
19. Whilst Ms Daykin submitted that in the event of the decision being set aside the appeal should be remitted to the First-tier Tribunal, Mr Kandola was undecided given that there were findings of fact and adverse credibility findings that were not infected by the errors of law. However I see some force in Ms Daykin's submission that there needs to be a revisiting of the evidence owing to the passage of time and the expansion of the appellant's family. I therefore accept that the appropriate course would be for the case to be remitted to the First-tier Tribunal to be heard afresh, and with reference to the correct version of the immigration rules.

DECISION
20. The Secretary of State's appeal is allowed.
21. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. The decision is set aside. The appeal is remitted to the First-tier Tribunal, pursuant to section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Statement 7.2(b), to be dealt with afresh, before any judge aside from Judge Lingam.

Signed
Upper Tribunal Judge Kebede