Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/02553/2016

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision & Reasons Promulgated
On 3rd April 2017
On 6th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

Beverly Airish Belardo Orcine
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No legal representation
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction and Background
1. The Appellant appeals against a decision of Judge R Cooper of the First-tier Tribunal (the FtT) promulgated on 7th June 2016.
2. The Appellant is a female citizen of the Philippines born 25th February 1988.
3. The Appellant is married to a British citizen, James Raggett, to whom I shall refer as the Sponsor. The couple have a son born in the United Kingdom on 6th November 2015 who is a British citizen.
4. The Appellant was granted entry clearance to the United Kingdom as a visitor. She arrived on 15th April 2015 with leave valid until 28th September 2015.
5. On 24th September 2015 she applied for leave to remain on the basis of her family life and because the couple were expecting a baby.
6. This application was refused on 12th January 2016. The Respondent found that the Appellant did not satisfy the requirements of Appendix FM as at the date of application she was in the United Kingdom with leave as a visitor. She therefore did not satisfy the eligibility requirements, and the Respondent did not consider EX.1.
7. The Respondent considered the Appellant’s private life pursuant to paragraph 276ADE(1), finding that the Appellant could not satisfy any of the provisions contained therein.
8. The Respondent then considered whether there were any exceptional circumstances outside the Immigration Rules which would justify granting leave to remain pursuant to Article 8 of the 1950 European Convention on Human Rights (the 1950 Convention).
9. The Respondent noted that the Appellant was pregnant at the time of her application and had given birth to a son on 6th November 2015. The Respondent did not consider that the application for leave to remain disclosed any exceptional circumstances, and took the view that the Appellant and her son could return to the Philippines as a family unit and continue to enjoy family life together. The application was therefore refused with reference to Article 8.
10. The Appellant appealed to the FtT pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). The Appellant requested that the appeal be decided on the papers without an oral hearing. The FtT decided that it was appropriate to decide the appeal without an oral hearing.
11. The FtT found that the Appellant did not satisfy the eligibility requirements contained within Appendix FM, specifically E-LTRP.2.1. Therefore the Respondent was correct not to consider EX.1.
12. The FtT, when considering the Appellant’s private life, with reference to paragraph 276ADE(1) found that the Appellant had not been resident in the United Kingdom for twenty years, and had not proved that there would be very significant obstacles to her integration back into the Philippines. The appeal was therefore dismissed with reference to Appendix FM, and paragraph 276ADE(1).
13. The FtT considered Article 8 outside the Immigration Rules. It was accepted that the Sponsor is the father of the Appellant’s son and it was accepted that the Sponsor and Appellant are in a genuine relationship. The FtT accepted that the Appellant’s son is a British citizen.
14. The FtT found that the best interests of the child would be to live with and be brought up by both his parents, whether in the United Kingdom or in the Philippines. The FtT considered section 117B of the 2002 Act and concluded that it would not be unduly harsh for the Appellant and Sponsor, and their son, to live in the Philippines. Their circumstances did not outweigh the weight to be given to the maintenance of effective immigration control. The FtT found that because the Appellant’s son had not resided in the United Kingdom for seven years, the Appellant could not therefore rely upon section 117B(6) of the 2002 Act.
15. Following dismissal of the appeal, the Appellant applied for permission to appeal to the Upper Tribunal.
16. Permission to appeal was granted by Upper Tribunal Judge Smith on 6th December 2016, but not on the grounds advanced by the Appellant.
17. Judge Smith granted permission on the basis that it was arguable that the FtT had failed to properly consider section 117B(6) as the Appellant’s son had been found to be a British citizen. Judge Smith acknowledged that permission had not been sought on this ground, and commented that the Appellant did not have legal representation. It was therefore appropriate to grant permission to appeal.
18. Following the grant of permission the Respondent lodged a response pursuant to rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 accepting that the FtT had erred in law in failing to properly consider section 117B(6), and the Upper Tribunal was invited to set aside the decision of the FtT.
19. Directions were subsequently issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FtT decision contained a material error of law such that it should be set aside.
The Upper Tribunal Hearing
20. The Appellant attended the hearing. There was no need for an interpreter and proceedings were conducted in English.
21. I asked the Appellant if she was content to proceed without legal representation, and she indicated that she was.
22. The Appellant confirmed that she had seen the grant of permission to appeal, and the Respondent’s rule 24 response.
23. I explained to the Appellant the purpose of the hearing, which was to ascertain whether the FtT had made a mistake of law, and I explained the independence of my role, and advised the Appellant that if she did not understand any part of the proceedings, she must tell me.
24. On behalf of the Respondent Mr Bates stated that it was accepted that the FtT had erred in law as indicated by Judge Smith. Mr Bates submitted that the decision of the FtT should be set aside, and the decision re-made and the appeal allowed on the basis that it would not be reasonable for the Appellant’s British child to leave the United Kingdom. Mr Bates referred to SF Albania [2017] UKUT 00120 (IAC).
25. I indicated to the Appellant, that in view of the concession made on behalf of the Respondent, I intended to set aside the decision of the FtT, and re-make the decision by allowing the appeal. The Appellant indicated her agreement with the proposed course of action.
26. I therefore set aside the decision of the FtT, and re-made the decision by allowing the appeal pursuant to Article 8 of the 1950 Convention, and with specific reference to section 117B(6) of the 2002 Act. I indicated that a written decision would be issued.
My Conclusions and Reasons
27. The FtT erred in law by failing to adequately consider section 117B(6) of the 2002 Act which I set out below;
(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.
28. The FtT at paragraph 38 found that the Appellant could not benefit from section 117B(6) because her son had not resided in the United Kingdom for seven years. The error is the failure to appreciate that it is not necessary for a child to have resided in this country for seven years, if the child is a British citizen.
29. For that reason the FtT decision was set aside.
30. Mr Bates confirmed that it is accepted that the Appellant’s son is a British citizen. It is accepted that the Appellant has a genuine and subsisting parental relationship with her son. It is accepted that he is a qualifying child by reason of his British citizenship.
31. Mr Bates very fairly referred to SF Albania, and the Respondent’s guidance which is set out at paragraph 7 of that decision.
32. The concession that it would not be reasonable for the Appellant’s child to leave the United Kingdom, given all the circumstances of this case, was, in my view, correctly made. The Respondent’s own guidance indicates that generally it would be unreasonable to expect a British citizen child to have to leave the United Kingdom with their primary carer. In this case it is clear that the primary carer is the Appellant.
33. The guidance indicates that it may 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. Those circumstances would involve criminality falling below the threshold set out in paragraph 398 of the Immigration Rules, or a very poor immigration history.
34. Mr Bates rightly accepted that the Appellant was not involved in any criminality, and could not be described as having a very poor immigration history.
35. For the above reasons, I conclude that it would not be reasonable to expect the Appellant’s son to leave the United Kingdom. Therefore the public interest does not require the Appellant’s removal from this country, and the appeal is allowed with reference to Article 8 of the 1950 Convention.

Notice of Decision
The decision of the FtT contained a material error of law and was set aside.
I substitute a fresh decision. The appeal of the Appellant is allowed.

Anonymity
No anonymity direction was made by the FtT. There has been no request for anonymity made to the Upper Tribunal and I see no need to make an anonymity order.

Signed Date 3rd April 2017

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD
The appeal is allowed so I have considered whether to make a fee award. I make a fee award in the sum of £80 on the basis that there was evidence before the Respondent, that the Appellant had a British child.

Signed Date 3rd April 2017

Deputy Upper Tribunal Judge M A Hall