Tribunal decisions

The decision

IAC-FH-WYL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03932/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 November 2016
On 12 January 2017

Before

LORD MATTHEWS, SITTING AS AN UPPER TRIBUNAL JUDGE
UPPER TRIBUNAL JUDGE KEBEDE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

mr taimoor malik
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr P Armstrong, Home Office Presenting Officer
For the Respondent: Mr J Plowright, Counsel

DECISION AND REASONS
1. This is an appeal by the Secretary of State, who will simply be referred to as the respondent for the sake of continuity. The appeal is against a determination of First-tier Tribunal Judge G A Black. In that determination, promulgated on 6 July 2016, the judge allowed the appellant's appeal against the respondent's decision to remove him and to refuse leave to remain. The facts of the case are set out therein and we need not repeat them at length. In essence the appellant is a national of Pakistan who came to the UK on 23 January 2011 with valid leave to remain as a student until 6 March 2012. He has remained since without lawful leave but is now married to a British citizen who has close family ties in the UK. She has no meaningful relationship with her father, who lives in Pakistan. The couple have a child, who is a British citizen. In terms of Section 117B(6) of the 2002 Act, the judge found that the appellant had a genuine and subsisting parental relationship with a qualifying child and that it would not be reasonable to expect the child to leave the UK.
2. Permission was granted on the basis that the judge may have erred by treating Section 117B(6) as a freestanding provision having no correlation to the public interest considerations. It was argued that the judge focused on the approach in Treebhawon and Others (Section 117B(6)) [2015] UKUT 00674 (IAC) and that the proper approach is that set out in MA (Pakistan) [2016] EWCA Civ 705.
3. Before us Mr Armstrong submitted first of all that the approach in Treebhawon should not be followed as the law had moved on, as reflected in MA (Pakistan). He referred to the case of R (on the application of Chen) v Secretary of State for the Home Department [2015] UKUT 189 (IAC) as authority for the view that there was no reason why the appellant should not be made to go back to his home country to make an application for leave to enter the UK from there.
4. As the discussion developed, however, he was asked about the Home Office policy at paragraph 11.2.3 of the Immigration Directorate Instruction on Family Migration, dated August 2015, under reference to the Family Life (as a Partner or Parent) and Private Life: 10-Year Routes. Paragraph 11.2.3 of that asks the question "Would it be unreasonable to expect a British Citizen child to leave the UK?" Having considered that question and the case of MA and having conceded that the judge was entitled to find that it would be unreasonable for the child who is now a British citizen to leave the UK, Mr Armstrong made no further submissions.
5. We are of the view that the concession to which we have referred is fatal to the respondent's case in the context of the policy and in the context of MA. We do not consider that MA completely overturns Treebhawon but rather explains it. In effect it only criticises Treebhawon effectively in relation to the question of the assessment of reasonableness or otherwise. Once unreasonableness is established then Section 117B(6) comes into play.
6. There being no public interest to require the removal of the appellant in this case we are of the view that the respondent's appeal cannot succeed. We therefore dismiss the respondent's appeal.
Notice of Decision
The appeal is dismissed.
No anonymity direction is made.

LORD MATTHEWS
Sitting as an Upper Tribunal Judge
(Immigration and Asylum Chamber)

Date: 11 January 2017