Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03676/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision and Reasons Promulgated
On 20 December 2016
On 03 January 2017

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
LONG LIN
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Markus counsel instructed by Silverdale Solicitors
For the Respondent: Mr C Bates Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
3. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Malik promulgated on 17 May 2016 which allowed the Appellant's appeal against the decision of the Respondent to refuse leave to remain in the UK on the basis of his family and private life.
Background

4. The Appellant was born on 10 June 1985 and is a national of China.
5. The Appellant entered the UK in 2002 and claimed asylum. His application was refused but he was granted leave until 9 June 2003.
6. On 29 June 2009 the Appellant applied for leave to remain and his application was refused. He appealed this decision on 1 November 2013 and his appeal was allowed by the First tier Tribunal on 11 March 2014.
7. The Appellant was granted leave outside the Rules on 14 October 2014 until 13 April 2015.
8. On 14 April 2015 the Appellant applied for further leave to remain.
9. On 17 July 2015 the Secretary of State refused the Appellant's application on the basis that having been convicted of an offence of fraud in 2009 and common assault in 2012 his presence was not conducive to public good. He could not benefit from EX.1 as there was no evidence of his children's nationality.

The Judge's Decision
10. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Malik ("the Judge") allowed the appeal against the Respondent's decision. The Judge found:
(a) This was an appeal against a refusal of a human rights claim.
(b) She was obliged to take into account those factors set out in section 117B of the Nationality Immigration and Asylum Act 2002 in assessing the public interest in Article 8 assessment of proportionality.
(c) The Respondent conceded that the Appellants child and his mother were British citizens and that there was a family court order in pace for access to the child.
(d) She assessed Article 8 by reference to the questions posed in Razgar and found that at paragraph 33 that the Appellant had a genuine and subsisting relationship with his child and although the evidence was contradictory she resolved it in his favour finding that he has contact with the child albeit not in accordance with the Court Order.
(e) At paragraph 38 she addressed the question of proportionality all other questions having been answered.
(f) She found that this was a case where section 117B 6 of the 2002 Act applied and at paragraph 42 that it was not reasonable for the British Citizen child to be removed. She found it in the child's best interest to have contact with the child and therefore that it was disproportionate to remove the Appellant.
11. Grounds of appeal were lodged arguing that there was no basis for consideration of Article 8 outside the Rules; the Judge failed to consider the Appellants convictions in relation to the public interest or the best interests of the child; the Judge failed to consider whether there were insurmountable obstacles to family life resuming in China.
12. On 27 September 2016 First tier Tribunal Judge Gillespie gave permission to appeal.
13. At the hearing I heard submissions from Mr Bates on behalf of the Respondent that:
(a) He conceded in that the grounds of appeal where misconceived in suggesting that an Article 8 assessment was not appropriate given the right of appeal in this case is pursuant to Section 82(1) (b) of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act') which provides that a person may appeal to the Tribunal where the Secretary of State has decided to refuse a human rights claim. S84 of the Act provides that an appeal under s82(1)(b) must be brought on the ground that a decision is unlawful under section 6 of the Human Rights Act 1998.
(b) He asserted that the judges had failed to factor into the public interest and assessment of the Appellants criminal history given that that the convictions were not spent for immigration purposes: she could have found that the criminal convictions are outweighed by other factors but there is no reference to them in in her findings.
(c) He relied on the case of R (on the application of MA (Pakistan) and Others) v UT (IAC) & Anor [2016] EWCA Civ 705 to suggest that the best interests of the children and the issue of reasonableness could not be viewed in isolation.
14. On behalf of the Respondent Mr Markus submitted that :
(a) He did not accept that there was a material error of law.
(b) He argued that the Respondent argued their case as set out in paragraph 28 the Judge's decision and the only issue he pursued was whether there was a genuine and subsisting relationship with the child and the Judge decided the case and on the basis of that it has been argued before her.
(c) The simple fact what was the Home Office pursued this case on the narrow point relating to his relationship with the child and they had not challenged any of the findings made in relation to the issue that they argued before her.
(d) Even if the judge did not referred to the previous convictions this was not an a material error. The two convictions were relatively minor and the Appellant had clearly completed a rehabilitation programme; there was no risk to the child found by the family court and the family court had also determined that it was in the best interests of the child for access to take place and therefore factoring in those convictions would not have made any difference to the outcome of the case.
(e) The offences were at the lowest end of the spectrum and could not justify a separation.
15. In reply Mr Bates on behalf of the Appellant submitted:
(a) The fact that the convictions were not spent for immigration purposes suggests that they were relevant to the public interest.
(b) The HOPO had not made any concession about the Appellants criminal offending not being relevant as he relied on the refusal letter which referred to criminality.
The Law
16. Errors of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on facts or evaluation or giving legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
17. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue under argument. Disagreement with an Immigrations Judge's factual conclusions, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law.
Finding on Material Error
18. Having heard those submissions, I reached the conclusion that the Tribunal made no material errors of law.
19. The grounds of appeal as set out in writing by the Respondent were largely misconceived. Clearly this was an appeal where the Judge was required to consider Article 8 as the only basis for the appeal was that a human rights application had been refused. The grounds were also misconceived in suggesting that the test under Article 8 was whether there were insurmountable obstacles to family life being resumed in China. Neither of these matters were pursued by Mr Bates.
20. It is clear that the Judge in this case made no reference in her findings to the criminal convictions. The Judge correctly identified that in this case the principal issue given that this was a refusal of a human rights application was whether this was a case to which s117B 6 applied and what factors were relevant to the decision. The fact of criminal convictions was a factor that the Judge could have taken into account had it been argued that these should outweigh the provisions of s117B 6 that the public interest did not require removal of an Appellant where he had a genuine and subsisting relationship with a qualifying child and it was not reasonable to remove that child from the UK.
21. It was accepted by the home office that the Appellant's child was a British citizen and therefore a qualifying child. I am satisfied that on any reading of the decision while the HOPO may have relied on the reason for refusal letter which in relation to the refusal under the Rules referred to the criminal convictions it is very clear that the main thrust of the argument in this case was whether the Appellant had a genuine and subsisting relationship with his British citizen child: that is clear from how the Judge summarised the HOPOs final submissions at paragraph 28 and how the Appellants representative responded as recorded at paragraph 29. While it is clear that the Judge was aware of the fact of the convictions as these are set out at paragraph 15 it does not appear that they were pursued by the Respondent in cross-examination or relied on in final submissions to suggest that they outweighed any of the findings in relation to the child.
22. Even if it was an error to fail to refer to the convictions in her findings I am satisfied that they would not have made a material outcome to the decision. The Judge would have been entitled to note that both convictions predated the grants of leave made by the Respondent in both October 2014 and April 2015 and had not been viewed as so serious as to justify refusal of leave. The Judge would also have been entitled to take into account that the convictions were known to the Family Court when they made the Order which reflected the fact that it was in the best interests of the child to have access to her father. She would also have been entitled to categorize them as relatively minor in that the 2009 conviction for using a false number plate resulted in a short period of imprisonment and the common assault in 2012 attracted a community penalty.
23. I remind myself of what was said in Shizad (sufficiency of reasons: set aside) Afghanistan [2013] UKUT 85 (IAC) about the requirement for sufficient reasons to be given in a decision in headnote (1) : "Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge."
24. I was therefore satisfied that the Judge's determination when read as a whole set out findings that were sustainable and sufficiently detailed on the basis of the case that was argued before her and based on cogent reasoning.
CONCLUSION
25. I therefore found that no errors of law have been established and that the Judge's determination should stand.
DECISION
26. The appeal is dismissed.

Signed Date 2.1.2017
Deputy Upper Tribunal Judge Birrell