Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00982/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 March 2017
On 15 March 2017

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

igor kazymyriv
(no anonymity order made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Karim instructed by M A Consultants London
For the Respondent: Mr P Duffy, a Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of the Ukraine, who appeals with permission against the decision of the First-tier Tribunal dismissing his challenge to the respondent’s decision to refuse him leave to remain in the United Kingdom as the partner of a person present and settled in the United Kingdom pursuant to the Immigration (European Economic Area) Regulations 2016 (as amended).
2. My attention has been drawn to schedule 3 section 2(1) of the Immigration (European Economic Area) Regulations 2016:
“Person not subject to restriction on the period for which they may remain
2.—(1) For the purposes of the 1971 Act and British Nationality Act 1981, a person who has a right of permanent residence under regulation 15 must be regarded as a person who is in the United Kingdom without being subject under the immigration laws to any restriction on the period for which the person may remain. …”
3. It is now accepted on behalf of the respondent that this appellant is the partner of an EEA citizen with permanent residence and that, contrary to the erroneous statement in the First-tier Tribunal decision, her permanent residence will not expire at the end of 10 years, although the residence card issued by the Secretary of State is stated to be valid only for that period.
4. It follows that the appellant’s partner’s child, born while she was not subject to any restriction under the immigration laws as to her leave to remain, is the child of a settled person and thus a British citizen. It is not disputed on behalf of the respondent that the appellant has a genuine and subsisting relationship with his partner, now of sufficient duration to meet the Partner test in paragraph GEN.1 of the Immigration Rules HC395 (as amended), nor that he has a genuine and subsisting parental relationship with the child.
5. Applying the guidance of the Supreme Court, and in particular the observations of Lady Hale at [32]-[33], in ZH (Tanzania) (FC) v Secretary of State for the Home Department [2011] UKSC 4, it is settled law that British citizen children cannot be expected to leave the United Kingdom and grow up elsewhere without the benefits of British citizenship.
6. Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 (as amended) is applicable. The Upper Tribunal in Treebhawon and others (section 117B(6)) [2015] UKUT 00674 (IAC) held that:
“(i) Section 117B (6) is a reflection of the distinction which Parliament has chosen to make between persons who are, and who are not, liable to deportation. In any case where the conditions enshrined in section 117B(6) of the Nationality, Immigration and Asylum Act 2002 are satisfied, the section 117B(6) public interest prevails over the public interests identified in section 117B (1)-(3). …”
7. Having regard to paragraph EX.1 of the Immigration Rules HC395 (as amended) and Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 (as amended), I am satisfied that the public interest does not require the removal of the appellant and that it would not be in the best interests of his child, or lawful in relation to his partner, to remove him.
Decision
8. For the foregoing reasons, my decision is as follows:
The making of the previous decision involved the making of an error on a point of law. I set aside the previous decision.
I remake the decision by allowing the appeal.

Signed: Judith A J C Gleeson Date: 14 March 2017
Upper Tribunal Judge Gleeson