Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/01093/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 April 2017
On 12 April 2017

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

AD
(Anonymity Direction made)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms C. Bayati, Counsel instructed by Polpitiya & Co, Solicitors
For the Respondent: Mr D. Clarke, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Sri Lanka, born in 1982. He arrived in the UK on 19 October 2008 as a Tier 4 student. He was granted further periods of leave until June 2014. However, on 27 February 2014 his leave was curtailed, to expire on 28 April 2014.
2. On 24 February 2015 he made an application for leave to remain on human rights grounds with reference to Article 8 of the ECHR. That application was refused in a decision dated 9 June 2015.
3. His appeal came before First-tier Tribunal Judge Robinson (“the FtJ”) on 24 June 2015. He dismissed the appeal, finding that the appellant did not meet the requirements for leave to remain under the Article 8 Rules, or in terms of Article 8 outside the confines of those Rules.
4. Permission to appeal was sought, in summary, on the basis that the FtJ did not give any, or any adequate consideration in accordance with guidance and authority, to the fact that the appellant’s child is a British Citizen.
The decision of the FtJ
5. The FtJ repeated the relevant parts of the respondent’s decision, identified the documents before him and summarised the oral evidence and submissions of the parties.
6. Contrary to the respondent’s view, he concluded that the appellant and his wife were in a genuine and subsisting relationship. He considered paragraph EX.1 (b) and EX.2 of the Rules (relationship with a partner/insurmountable obstacles) and noted that the appellant has family in Sri Lanka and that his parents send money to the UK to support him and his wife, being able to do so because they have several properties there. He concluded that the appellant and his wife would have a means of support and accommodation on return to Sri Lanka.
7. At [32] he considered the best interests of the appellant’s child who is a British Citizen. He concluded that whether the appellant and his wife return to Sri Lanka, or whether the appellant returns alone to make an application for entry clearance, the child’s best interests would not be compromised. She would either live with both her parents in Sri Lanka or with her mother in the UK pending the application for entry clearance.
8. He noted that neither the appellant nor his wife have property in the UK, and the appellant’s wife would have to give up her (unskilled) work if she returned to Sri Lanka with the appellant. However, they would be moving to a familiar country to live with relatives who have been providing for them financially. Thus, he concluded that paragraph EX.1 was not met.
9. For like reasons, he concluded that there were no exceptional circumstances warranting a grant of leave outside the Article 8 Rules. He also found that it would be proportionate to require the appellant to return to Sri Lanka to make an application for entry clearance, there being no evidence to suggest that temporary separation for the purposes of making an application for entry clearance would interfere significantly with family life.
Submissions
10. Mr Clarke conceded that there was an error of law requiring the decision to be set aside, having regard to the decision in MA (Pakistan) & Ors v Secretary of State for the Home Department [2016] EWCA Civ 705 and Home Office guidance. It was also conceded that the FtJ should have considered paragraph EX.1(a), and s.117B(6) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) outside the Rules.
11. As to the re-making of the decision, which both parties submitted should take place in the Upper Tribunal, Ms Bayati submitted that given that the FtJ accepted that the appellant and his spouse were in a genuine and subsisting relationship, paragraph EX.1(a) applied. The same language as used in EX.1 is used in paragraph 276(1)(iv) and s.117B(6) of the 2002 Act. The decision in MA (Pakistan), was also relied on. It was submitted that, in accordance with the respondent’s guidance, the starting point must be that it would be unreasonable to expect a British Citizen child to leave the UK.
12. In this case, relevant factors are that the child lives with her parents and maternal grandparents. It is not suggested that there is any criminality or a poor immigration history that needs to be taken into account. A consideration outside the Rules would achieve the same result.
13. At my invitation, Ms Bayati made submissions on the Chikwamba point (Chikwamba v Secretary of State for the Home Department [2008] UKHL 40). However, it was submitted that once the Rules were satisfied, there was no requirement for a person to return to make an application for entry clearance, a proposition supported by [17] of MA (Pakistan). Likewise, where there is a consideration of Article 8 outside the Rules.
14. If the possibility of an application for entry clearance was a relevant consideration, it was significant that the appellant’s wife would not meet the financial requirements of the Rules, and there would not therefore be only a relatively brief separation. If the appellant was unable to meet the financial requirements of the Rules the application for entry clearance would be refused, and the appellant would not be able to rely on paragraph EX.1 because it does not apply to entry clearance applications. That was consistent with the first paragraph of the guidance in R (on the application of Chen) v Secretary of State for the Home Department) (Appendix FM – Chikwamba – temporary separation – proportionality) IJR [2015] UKUT 00189 (IAC).
15. It was submitted that the guidance in relation to Chikwamba in Secretary of State for the Home Department v Hayat [2012] EWCA Civ 1054 does not detract from the submissions on behalf of the appellant. In Chen at [39] it was said that in cases involving children it would be easier to show that the balance on proportionality falls in favour of a claimant, and that it all depends on the facts.
16. In this case it was true that the appellant’s relationship was formed when his immigration status was precarious, but his status was not unlawful at that time. An entry clearance application in this case, where the appellant would not be able to meet the financial requirements of the Rules, would involve an appeal that may take up to a year before it is heard.
17. Mr Clarke agreed that the test of ‘reasonableness’ under EX1(a) and s.117B(6) was the same. Because of the date of the decision, the appeal could not be allowed under the Immigration Rules (i.e. that was no longer a permissible ground of appeal).
18. MA (Pakistan) made it clear that there was a need to look at the best interests of the child first in considering the reasonableness test. The FtJ had considered the child’s best interests. However, it was not the respondent’s case that the child would be required to leave the UK.
19. As I understood the submission, it was contended that the respondent’s guidance was not comprehensive in terms of criminality or very poor immigration history, in relation to when separation of parent and British Citizen child could be appropriate. In this case, the appellant’s leave was curtailed on 27 February 2014, to expire on 28 April 2014. The appellant had no lawful residence since April 2014 and the application for leave was made on 24 February 2015. The child was conceived at about the time that his leave was curtailed.
20. Although the relationship with his partner was entered into when he had lawful leave, that leave was precarious. The appellant had never been in the UK on a path to settlement, and as was said in Nagre v Secretary of State for the Home Department [2013] EWHC 720 (Admin) at [40], little weight was to be afforded where the immigration status was precarious.
21. Here, the appellant had presented the respondent with a fait accompli in terms of his family life, but the balance falls to be decided against the appellant. It was proportionate to expect the appellant to return to Sri Lanka and make an application for entry clearance notwithstanding that it is not known when that application would be able to be made. With reference to [39] of Chen, it was submitted that the Chikwamba principle does not apply in this case, that is that the appellant is not able to rely on it.
Conclusions
22. Paragraph EX.1. provides as follows:
“EX.1. This paragraph applies if
(a)(i) the applicant has a genuine and subsisting parental relationship with a child who-
(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;
(bb) is in the UK;
(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and
(ii) it would not be reasonable to expect the child to leave the UK…”
23. The respondent’s guidance, the “Immigration Directorate Instruction, Family Migration: Appendix FM Section 1.0b Family Life (as a Partner or Parent) and Private Life: 10-Year Routes” as set out in the appellant’s grounds, is accepted on behalf of the respondent as being the applicable guidance, notwithstanding that it is dated August 2015 (and therefore post-decision). Materially, it states as follows:
“11.2.3. Would it be unreasonable to expect a British Citizen child to leave the UK?
Save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British Citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child. This reflects the European Court of Justice judgment in Zambrano.
The decision maker must consult the following guidance when assessing cases involving criminality:
Criminality Guidance in ECHR Cases (internal)
Criminality Guidance in ECHR Cases (external)
Where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case must always be assessed on the basis that it would be unreasonable to expect a British Citizen child to leave the EU with that parent or primary carer. Appendix FM 1.0 Family Life (as a Partner or Parent) and Private Life: 10-Year Routes August 2015
In such cases it will usually be appropriate to grant leave to the parent or primary carer, to enable them to remain in the UK with the child, provided that there is satisfactory evidence of a genuine and subsisting parental relationship.
It may, however, be appropriate to refuse to grant leave where the conduct of the parent or primary carer gives rise to considerations of such weight as to justify separation, if the child could otherwise stay with another parent or alternative primary carer in the UK or in the EU.
The circumstances envisaged could cover amongst others:
criminality falling below the thresholds set out in paragraph 398 of the Immigration Rules;
a very poor immigration history, such as where the person has repeatedly and deliberately breached the Immigration Rules.
In considering whether refusal may be appropriate the decision maker must consider the impact on the child of any separation. If the decision maker is minded to refuse, in circumstances where separation would be the result, this decision should normally be discussed with a senior caseworker and, where appropriate, advice may be sought from the Office of the Children’s Champion on the implications for the welfare of the child, in order to inform the decision”.
24. For completeness, s.117B(6) of the 2002 Act provides that:

“(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.”
25. The question of whether it would be reasonable to expect the appellant’s daughter, born on 21 January 2015, to leave the UK, requires a consideration of what is in her best interests. The FtJ made what I consider to be a factually and legally correct assessment in that respect where he said at [32] that it is in her best interests to live with and be cared for by her parents, to have adequate accommodation and to have her physical and emotional needs met by her family.
26. It is true that the appellant has always had precarious immigration status. Although he has had no lawful leave since April 2014 when his leave was curtailed, he did not enter into his relationship with his wife when his status was unlawful.
27. The respondent’s guidance states that “Save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British Citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child”. It goes on to state that “Where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case must always be assessed on the basis that it would be unreasonable to expect a British Citizen child to leave the EU with that parent or primary carer”.
28. Finally, and most significantly in my view, it states that it will usually be appropriate to grant leave to the parent or primary carer, to enable them to remain in the UK with the child, provided that there is satisfactory evidence of a genuine and subsisting parental relationship.
29. Cases where it may be appropriate to refuse to grant leave are said to be where the conduct of the parent or primary carer gives rise to considerations of such weight as to justify separation, if the child could otherwise stay with another parent or alternative primary carer in the UK or in the EU. The circumstances referred to are said to include criminality falling below the thresholds set out in paragraph 398 of the Immigration Rules and a very poor immigration history, such as where the person has repeatedly and deliberately breached the Immigration Rules.
30. The reason for Mr Clarke’s having said that the guidance is not comprehensive is no doubt because of the way the guidance is framed in terms of stating that “circumstances envisaged could cover amongst others” (my emphasis), the criminality or very poor immigration history referred to.
31. It is reasonable to conclude however, that whilst the considerations leading to a conclusion not to grant leave are not exhaustively set out, they would have some equivalence to criminal conduct or a very poor immigration history. Neither of those circumstances are said to apply to this appellant, and I did not understand Mr Clarke’s submissions to suggest so. True, I was referred to the precariousness of his status and his more recent lack of lawful status. However, I cannot see in the appellant’s circumstances anything which the respondent’s guidance would suggest militates against a grant of leave given the established fact of his relationship with a British Citizen child, with whom incidentally he lives, in an apparently settled and stable family unit.
32. MA (Pakistan) was a case, as Ms Bayati quite properly pointed out, which did not involve a consideration of British Citizen children. However, it is apparent that the reasons and analysis in MA (Pakistan) in relation to 7-year cases applies equally to cases of British Citizen children. The Rules and s.117 of the 2002 Act appear to treat them as alternatives, or equivalents, for the purposes of Article 8.
33. It was concluded in MA (Pakistan) that, certainly so far as ‘reasonableness under s.117B(6) of the 2002 Act is concerned, all relevant public interest matters need to be taken into account (see [45]). It is not contended on behalf of the respondent that it would be reasonable to expect the appellant’s daughter to leave the UK, but it was asserted that it was not the case that she would be forced to leave the UK, but that, if I understood the argument correctly, the appellant should be required to leave and make an application for entry clearance.
34. I consider that there is force in the submissions made on behalf of the appellant, not only in terms of the respondent’s guidance but also in terms of the fact of Appendix FM not including any consideration of a requirement to make an application for entry clearance.
35. I cannot see that, applying the respondent’s guidance to the question of whether paragraph EX.1(a) applies, there can be any answer other than that it does. Put another way, there is nothing to suggest that the guidance that “it will usually be appropriate to grant leave to the parent…to enable them to remain in the UK” should not apply in this case. Nothing in the respondent’s guidance militates in the opposite direction, and nor does anything in the submissions made on behalf of the respondent before me.
36. If there is a need to consider the question of the making of an application for entry clearance within the context of a wider Article 8 assessment, I would also hold that such a demand would represent a disproportionate interference with family life. It was accepted on behalf of the respondent before me, and is evident from the facts in any event, that the appellant would not presently be able to meet the financial requirements of the Rules, given the evidence of his wife’s earnings (see [11] of the FtJ’s decision). It was also part of the submissions to the FtJ (at [19]) that those requirements could not be met.
37. It would not be the case therefore, of a separation for a relatively short, or insignificant period of time, as might be expected in other cases. Furthermore, as was submitted on behalf of the appellant, out of country the appellant would not be able to rely on paragraph EX.1.
38. Finally, it is pertinent to refer to what was said in MA (Pakistan) at [49] with reference to the decision in EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874, as follows:
“Although this was not in fact a seven year case, on the wider construction of section 117B(6), the same principles would apply in such a case. However, the fact that the child has been in the UK for seven years would need to be given significant weight in the proportionality exercise for two related reasons: first, because of its relevance to determining the nature and strength of the child’s best interests; and second, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary.”
39. I have already referred to what can be said to be the equivalence between British Citizen children and 7-year cases. The dictum cited above applies to the circumstances of this appeal.
40. Accordingly, I allow the appeal under Article 8 of the ECHR.

Decision
41. The decision of the First-tier Tribunal involved the making of an error on a point of law. The decision of the First-tier Tribunal is set aside, and the decision re-made, allowing the appeal.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Because this case involves a minor, I consider that an anonymity order is appropriate. Therefore, unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his 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.

Upper Tribunal Judge Kopieczek 7/04/17