Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00223/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 8th December 2016
On 13th December 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

MR AYAZ AHMED
(Anonymity Direction Not Made)
Appellant
And

secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr M Shwenk (instructed by Lincoln Solicitors)
For the Respondent: Mr A McVeety (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is an appeal to the Upper Tribunal, with permission, by the appellant in relation to a decision First-tier Tribunal Judge Haria promulgated on 18 February 2016. The case was determined on the papers at the appellant's request.
2. The grounds upon which permission to appeal was granted assert that it was not possible to tell from the Decision and Reasons why the appellant lost his case and there had been no assessment of whether the appellant succeeded under the partner route of Appendix FM.
3. The appellant's background is that he entered the United Kingdom in June 2008 as a spouse. That leave was curtailed due to the marriage ending. The appellant applied unsuccessfully for leave to remain on the basis of domestic violence and he became appeal rights exhausted on 3 February 2011. The appellant then made a variety of applications for leave to remain, one under the EEA regulations and then in April 2014 as the unmarried partner of Sameera Sarwar. She is a British citizen and has a daughter from a previous relationship. That application was refused. The appellant appealed but then withdrew his appeal and made a different application based on his family life with his son born to Sameera on 21 February 2015.
4. In her Decision and Reasons the Judge acknowledged that the appellant and Sameera had lived together as a family unit for two years with two children, the appellant's stepdaughter and his son. She considered and properly concluded that the appellant could not succeed under the parent route of Appendix FM. However, she totally failed to consider whether the appellant could succeed under the partner route, a matter that was obvious and one that she should have considered.
5. Furthermore, the Judge made a rather curious finding that because the child was an infant, notwithstanding that the family all live together, the appellant, as the father did not have a genuine and subsisting relationship with his child because that role would be fulfilled by the mother. Such a finding is perverse.
6. Mr McVeety acknowledged the Decision and Reasons was tainted by material errors of law and agreed it should be set aside in its entirety.
7. Mr McVeety accepted that the appellant and Sameera are in a genuine and subsisting relationship and accepted that the appellant has a genuine and subsisting relationship with his son.
8. It is not disputed that the appellant meets the suitability requirements for leave to remain as a partner. So far as the eligibility requirements are concerned the appellant is absolved from those because paragraph Ex.1 applies. The appellant has a genuine and subsisting parental relationship with a British citizen child and, as the Secretary of State's own policy indicates, it would not be reasonable to expect that British citizen child to leave the UK. Accordingly, the appellant meets the requirements of paragraph R-LTRP for limited leave to remain as a partner. Mr McVeety did not seek to argue otherwise.
9. The First-tier Tribunal Decision and Reasons containing material errors of law, it is set aside and in redeciding the appeal it is allowed.
10. There has been no application for an anonymity order and I see no justification for making one.

Signed Date 12th December 2016

Upper Tribunal Judge Martin