Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/02611/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21st November 2016
On 07th December 2016

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Marvin Noble
(anonymity direction NOT MADE)
Respondent

Representation:
For the Appellant: Mr I Jarvis, Home Office Presenting Officer
For the Respondent: Mr G B Angammana, instructed by M & S Solicitors

DECISION AND REASONS

1. Although this is an appeal by the Secretary of State, I shall refer to the parties as in the First-tier Tribunal. The Appellant is a citizen of Jamaica born on 29th November 1976. His appeal against the refusal of leave on Article 8 grounds was allowed by First-tier Tribunal Judge D Ross under the Immigration Rules. The Secretary of State appealed.

2. I found that there was an error of law in the First-tier Tribunal Judge's decision and I set it aside for the reasons given in my decision dated 31st October 2016. The matter was adjourned for rehearing on the basis of the evidence before the First-tier Tribunal. The judge had erred in law in finding that the Appellant could satisfy the suitability requirements of the Immigration Rules. However, the judge's finding that the Appellant was in a genuine and subsisting relationship with his 15 year old son, a British citizen, was preserved.

3. The first issue in the appeal is whether the Appellant can satisfy the suitability requirements under the Immigration Rules. If he cannot then the matter falls to be decided under Article 8 outside the Rules and the second issue is whether it would be unreasonable to expect his 15 year old son to leave the UK.

4. Mr Angammana relied on further written submissions and stated that the Appellant's conviction was unsafe because the complainant had sought to retract her evidence. The Appellant had a 'one off' conviction which the complainant wished to withdraw and therefore he could satisfy the suitability requirements. Mr Angammana also submitted that it was not in the public interest for the Appellant to be removed. He satisfied the Immigration Rules and was not receiving benefits. There was no further evidence on the best interests of the children and Mr Angammana requested an adjournment to obtain further evidence.

5. Mr Jarvis opposed the adjournment on the basis that the purpose of it was probably to appeal the conviction and there was nothing to justify an adjournment. If the Appellant wanted to adduce further evidence of the best interests of the children he should have complied with the Procedure Rules. It was unlikely that the Appellant would be able to adduce any further evidence of the best interests of the children given that he had been unable to do so for this hearing.

6. Mr Angammana represented the Appellant at the error of law hearing in which I found that there was an error of law. Mr Angammana did not seek to have the matter remitted, but requested an adjournment for rehearing in the Upper Tribunal on the basis of the evidence before the First-tier Tribunal Judge. It was open to the Appellant in any event to seek permission to adduce further evidence if indeed he wished to do so.

7. The Appellant has not sought to adduce any further evidence in the form of a witness statement from himself or any of his children. There was a letter from his son stating that he wanted to see his grandma which was not relevant to the issues before me. I allowed the Appellant to adduce the letter from his MP, even though he had not complied with the Procedure Rules, because it basically dealt with the situation before the First-tier Tribunal.

8. Accordingly, the Appellant has had ample time to produce any further evidence that he would like to rely on. Applying the overriding objective, there was no merit in adjourning this appeal to another date. The Appellant and Mr Angammana were aware at the hearing before me on 17th October 2016 of the position at the next hearing. The notice of hearing was sent out on 1st November 2016 and therefore the Appellant had ample opportunity to seek to adduce any further evidence under the Procedure Rules. The adjournment was refused for those reasons.

9. In relation to the substantive appeal, Mr Jarvis submitted that suitability was raised by the Secretary of State for the Home Department and S-LTR 1.6 was a very broad provision. It states that the presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions which do not fall within paragraphs S-LTR 1.3 to 1.5), character, associations, or other reasons, make it undesirable to allow them to remain in the UK.

10. The Appellant's conviction had not been overturned in spite of the submissions made by Mr Angammana. It was a serious offence and was not spent at the date of the Respondent's decision on 3rd July 2015. It cannot be said that this conviction carried no weight. Whether it was conducive to the public good was a matter for the Secretary of State. Mr Jarvis submitted that I should not go behind the Secretary of State's finding in the refusal letter. Paragraph S-LTR 1.6 was not dependent on whether the conviction was spent and the Secretary of State's conclusion was only challengeable on irrationality grounds. Accordingly, the Appellant could not satisfy S-LTR 1.6 and his application was properly refused under the Immigration Rules. His appeal should be dismissed under the Immigration Rules.

11. In relation to Article 8 outside the Rules, the test was whether there were compelling circumstances. Mr Jarvis invited me to find that although there was a subsisting parental relationship, and therefore family life, the interference was not sufficiently serious to engage Article 8 because of the nature of the Appellant's family life. It was conducted somewhat at a distance with the Appellant seeing his son occasionally. Therefore, the refusal of leave to remain and the Appellant's removal would not amount to an interference on the facts of this case.

12. However, if I was not persuaded by that submission Mr Jarvis submitted that Section 117B (6) of the 2002 Act did not apply and MA (Pakistan) [2016] EWCA Civ 705 only applied to cases where the entire family would be required to leave the UK. That was on the basis that the reasonableness assessment included the immigration history of the parents. The construction of the Rules was such that they expect the family to leave. However, there was no expectation that a British citizen child should leave the UK, so Section 117B (6) was not intended to apply to situations where a British citizen child would not have to leave the UK on removal of the parent.

13. Mr Jarvis submitted that separation of the family unit was an issue to be considered in the proportionality assessment. Separation of family life was not objectionable in itself and legal argument allowed for such separation. The Appellant's 15 year old son was a qualifying child, but if Section 117B (6) applied to a British citizen child who would not be required to leave the UK with the parent then there would never be separation of families and this was not what Parliament intended. MA (Pakistan) was not relevant in this case.

14. Mr Jarvis submitted that the issue was the interpretation of the word 'expect' in Section 117B (6). This was an entirely separate concept to 'best interests.' There was a finding in this case that there was a genuine and subsisting parental relationship. Therefore, it would be in the child's best interests for the Appellant to remain in the UK.

15. However, there was still a need for a proportionality assessment and the public interest was such that little weight should be given to the Appellant's private life given his appalling immigration history. He had been an overstayer from 1999, although he was granted a period of discretionary leave as an unmarried partner. His leave had been precarious and entirely temporary throughout and he had no expectation that it would be renewed. Relying on Rhuppiah [2016] EWCA Civ 803, the fact that he could speak English and was financially independent were neutral factors and the Appellant was unable to rely on unlawful working.

16. The Appellant had been convicted of an offence and given an eleven month suspended sentence. In the circumstances, it was proportionate to remove him. It was a situation where his child should not be used as a passport to enable him to remain. The Appellant's family life was such that it did not outweigh the public interest. In any event, the Appellant could make an application to come back in. His removal would be proportionate.

17. Mr Jarvis argued that if the decision was made under the Immigration Rules EX.1 did not apply as there was no expectation that the child was going anywhere. If reasonableness was to be considered Mr Jarvis accepted that current Home Office guidance considered the effect on the child if their parent had to leave. However, the guidance notes referred to the case of Zambrano and the need for compulsion. The scenarios in the guidance were extreme. There was no compulsion in this case. The Appellant's son would be able to remain living in the UK with his mother. The argument in the Rules was the same. It depended on the expectation of leaving.

18. In response Mr Angammana relied on the letter from the Appellant's MP stating:

"I would ask that Mr Noble's suitability is considered in the context of seventeen years in the UK and the life he has built up here and the close relationships he has formed. Seventeen years in the UK is a substantial part of a person's life during which Mr Noble has established deep roots. I understand Mr Noble has set up his own business in the UK and maintains and accommodates himself and pays taxes and finances and supports his children.

KN, who is a British citizen, has expressed that his own life would be severely diminished if he was deprived of his father's presence in the UK. His rights and those of his siblings should also be taken into consideration in the balancing exercise.

Further to this the Secretary of State has a duty in Appendix FM under Section 55 of the Borders, Citizenship and Immigration Act to ensure that immigration decisions are made having regard to the need to safeguard and promote the welfare of children who are in the UK. With this regard the children's need for their father should be given high importance."

Discussion and Conclusions

21. The Appellant has a previous conviction for false imprisonment on 29th July 2013. He was sentenced by Harrow Crown Court on 21st February 2014. On the basis of this conviction the Respondent has concluded that the Appellant's presence in the UK is not conducive to the public good because his conduct including this conviction, his character, associations and other reasons make it undesirable to allow him to remain in the UK. The Appellant was convicted of falsely imprisoning his ex-partner.

22. The Appellant arrived in the UK as a visitor in May 1999. He made an application for leave to remain as a student which was rejected as invalid. A subsequent application was refused with no right of appeal. He then applied for leave to remain as an unmarried partner which was refused with a right of appeal. The Appellant was served with a notice of removal and, although he had lodged an appeal, he withdrew it prior to the hearing.

23. On 25th July 2007, the Appellant applied for leave to remain outside the Immigration Rules. On 2nd June 2008 he was granted discretionary leave to remain as an unmarried partner until 1st June 2011. On 30th July 2013 the Appellant was served with notice of removal for having remained in the UK beyond the expiry of his leave. He made several applications for leave to remain on the basis of family and private life which all of which were unsuccessful.

24. I find that the Appellant's previous conviction and his poor immigration history make it undesirable to allow him to remain in the UK and therefore he is unable to satisfy the suitability requirements of the Immigration Rules. The Appellant cannot satisfy paragraph 276ADE of the Immigration Rules.

25. The fact that the Appellant has a genuine and subsisting parental relationship with a British citizen child is sufficient to warrant consideration outside the Immigration Rules.
26. I acknowledge that the evidence of the Appellant's contact with his children was contradictory. The Appellant's son stated that there was contact every weekend, his solicitors stated two to three times per month and Ms Dover, the mother of the Appellant's four children, stated that the Appellant saw his children once every two or three months. However, this is of no relevance given that the First-tier Tribunal judge found the evidence of the Appellant's son to be credible. This finding was not challenged by the Respondent and it was accepted that it was in the best interests of the Appellant's son that the Appellant remained in the UK.

27. The argument that Mr Jarvis has put forward is that Section 117B (6) does not apply because the Appellant's son is a British citizen who would not be expected to leave the UK should the Appellant be removed to Jamaica. I am not persuaded by this submission for the following reasons.

28. Section 117B (6) states:

"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."

29. The definition of a 'qualifying child' in section 117D is "a person who is under the age of 18 and who is a British citizen or has lived in the UK for a continuous period of seven years or more." Section 117B (6) clearly applies to a British citizen child.

30. It has been conceded in previous appeals by the Respondent that it would not be reasonable to expect a British citizen child to leave the UK. Home Office Guidance states that cases must always be assessed on the basis that it would be unreasonable to expect a British citizen child to leave the UK with that parent or primary carer. The guidance also suggests that it may be appropriate to refuse to grant leave where the conduct of the parent gives rise to considerations of such weight so as to justify separation (e.g. criminality falling below the threshold in paragraph 398 and a very poor immigration history), if the child could otherwise stay with another parent in the UK. The decision maker must consider the impact on the child.

31. The Appellant's son is a British citizen and has lived here all his life. He lives with his mother and three siblings. He sees the Appellant at weekends. These visits could not continue if the Appellant is removed to Jamaica. This establishes a starting point that leave should be granted unless there are strong reasons to the contrary.

32. The Appellant's poor immigration history and his previous conviction are insufficient to displace the significant weight to be attached to the fact that his son is a British citizen who has been resident in the UK for 15 years and it would be in his son's best interests for the Appellant to remain in the UK. It would not be reasonable to expect the Appellant's son to leave his mother and siblings in the UK to go and live with his father in Jamaica or for him to visit his father in Jamaica. On the facts of this case, it would be unreasonable to expect the Appellant's 15 year old son to leave the UK.

33. The Appellant satisfies Section 117B (6). The fact that the Appellant's son would not be compelled to leave the UK because he could remain here with his mother is not a matter relevant to Section 117B (6). There is no element of compulsion recognised therein. The Appellant was not subject to deportation. The wording of section 117B (6) is unequivocal. The public interest does not require removal in this case.

34. Accordingly, I find that the Appellant cannot satisfy the suitability requirements of the Immigration Rules, but he does have a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect his child to leave the UK. Therefore, the Appellant's removal from the UK would not be proportionate under Article 8.

Notice of Decision

I dismiss the Appellant's appeal under the Immigration Rules.

I allow the Appellant's appeal on Article 8 grounds.

No anonymity direction is made.

J Frances
Signed Date 28th November 2016

Upper Tribunal Judge Frances

TO THE RESPONDENT
FEE AWARD

As I have partly allowed and partly dismissed the appeal I have decided to make no fee award.

J Frances
Signed Date: 28th November 2016
Upper Tribunal Judge Frances