Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03239/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 3rd April 2017
24th April 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

MrS ERTEZA KORONACI.
(NO ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Thoree and Co, Solicitors.
For the Respondent: Mrs. Aboni, Home Office Presenting Officer.

DECISION AND REASONS

Introduction

1. The appellant is a national of Albania. In 2014 she was caught attempting to enter the United Kingdom from France using an Italian identity document which did not belong to her. She was returned to France. She was accompanied by a Mr Klodjan Asllani, hereinafter referred to as her sponsor. He is a British national originally from Kosovo. He received a 12 month suspended sentence for his involvement.

2. She re-entered the United Kingdom illegally on 4 January 2015. She was in a relationship with her sponsor and became pregnant. On 12 May 2015 she applied for leave to remain on the basis of her article 8 rights. Her application was refused on 10 July 2015. EX1 of appendix FM was considered, with the respondent concluding there were no insurmountable obstacles to the relationship continuing in Albania. It was pointed out Albania had facilities to assist the appellant through her pregnancy. Regarding her private life and paragraph 276 ADE, she had only been here a matter of months and could reintegrate into her home country. No exceptional circumstances were identified justifying a grant of leave outside the rules.

The First tier Tribunal

3. Her appeal was heard by First-tier Judge Pickup at Manchester on 24 May 2016. Meantime, she had given birth to a son on the 31 October 2015. This child was entitled to British citizenship through his father, the sponsor. It was accepted at the hearing that she was in a genuine and subsisting relationship with her sponsor and child. It was accepted on behalf of the appellant that the financial requirements in the rules could not be met because her sponsor was in low-paid employment. The focus in the appeal was on the child, who at that stage was still being breastfed.

4. The judge dismissed the appeal. At paragraph 20 the judge confirmed that the relationships were subsisting but the requirements of the immigration rules could not be met. Furthermore, she could not meet the definition of a partner under the rules. The judge found no practical or insurmountable obstacles to the appellant and sponsor continuing family life outside the United Kingdom.

5. The judge said this was not a Zambrano situation as removal of the appellant would not obliged the child to leave the United Kingdom as he could remain with the sponsor. Consequently, neither limb of EX1 applied.

6. The judge found that the requirements of paragraph 276 ADE were not satisfied in respect of a claim in relation to private life. Furthermore, the judge did not find any exceptional or compelling circumstances that were not recognised by the rules. In the alternative, the outcome was proportionate in terms of article 8.

7. The judge accepted that the best interests of the appellant’s child were to remain in the United Kingdom. At paragraph 37 the judge referred to the respondent’s IDI on Family Migration, paragraph 11.2.3 of which concerned British children. The instruction to caseworkers was 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 child were the effect that decision would be to force the child to leave the EU. Where a decision to refuse would require the parent or primary carer to return to a country outside the EU the case must always be assessed on the basis it would be unreasonable to expect a British child to leave the EU. However, it may not be appropriate to make a grant of leave where the conduct of the parent or primary carer gives rise to considerations of such weight as to justify separation.

The Upper Tribunal

8. Permission to appeal was granted by an Upper Tribunal Judge. It was arguable that to remove the appellant, who was breastfeeding her child, would effectively oblige the child to leave the Member State notwithstanding the presence of the sponsor.

9. At hearing, Mrs. Aboni accepted that there was a material error of law in refusing the appeal under EX1 in relation to the child, given the respondent's policy on British children.

Conclusion

10. In light of the concession; the guidance to caseworkers; and the case law provided, I find there has been a material error of law by the judge in dismissing the appeal. At the time, the infant was being breastfed and his mother was his principal carer. His father was at work. To refuse the application would in all probability mean the child would have to leave with its mother.

11. Both parties agreed that there was nothing outstanding and the decision could be remade by me. Consequently, because of the appellant's child the appeal is allowed under the provisions of EX1 of the rules.

Decision.

The decision of First-tier Judge Pickup dismissing the appellant's appeal materially errs in law and cannot stand. I remake the decision and allow the appeal under the provisions of EX 1 of the immigration rules.

Deputy Judge Farrelly

24th April 2017