Tribunal decisions

The decision

IAC-FH-LW-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/04015/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13th March 2017
On 21st March 2017

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

NEERAJ AMARABOINA
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Yeo, instructed by Luqmani Thompson & Partners Solicitors
For the Respondent: Mr P Singh, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of India born on 9th December 1977. His appeal against the refusal of leave to remain was dismissed by First-tier Tribunal Judge Nicholls under the Immigration Rules and on human rights grounds in a decision dated 28th July 2016.
2. Permission to appeal was granted by Upper Tribunal Judge O’Connor on 23rd January 2017 on the following grounds: “The First-tier Tribunal’s decision is predicated on the fact that it is reasonable for the Appellant’s British citizen wife and child to move and live in India. This raises the recurring issue of whether it can ever be reasonable to require a British citizen child to move permanently to another country outside of the EU (see in particular paragraph 11.2.3 of the IDI on family migration). It is arguable that the First-tier Tribunal erred in its approach in this regard. All grounds may be argued.”

Relevant Home Office Policy
3. Paragraph 11.2.3:
Would it be unreasonable to expect a British Citizen child to leave the UK?
Save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child. This reflects the European Court of Justice judgment in Zambrano.
Where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case must always be assessed on the basis that it would be unreasonable to expect a British Citizen child to leave the EU with that parent or primary carer.
In such cases it will usually be appropriate to grant leave to the parent or primary carer, to enable them to remain in the UK with the child, provided that there is satisfactory evidence of a genuine and subsisting relationship.
It may, however, 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 in the UK or in the EU.
The circumstances envisaged could cover amongst others:
• criminality falling below the thresholds set out in paragraph 398 of the Immigration Rules;
• a very poor immigration history, such as where the person has repeatedly and deliberately breached the Immigration Rules.
In considering whether refusal may be appropriate the decision maker must consider the impact on the child of any separation. If the decision make is minded to refuse, in circumstances where separation would be the result, this decision should normally be discussed with a senior caseworker and, where appropriate, advice may be sought from the Office of the Children’s Champion on the implications for the welfare of the child, in order to inform the decision.

Summary of the judge’s findings
4. (i) There was no likelihood that the Appellant and his wife would be destitute on
return to India
(ii) It would be a matter of individual choice whether the Appellant’s wife chose to go herself or to allow their child to go with the Appellant.
(iii) There were no substantial factors which demonstrate that it would not be reasonable for the child to leave the UK in the company of his mother and father, if the mother chooses to accompany the Appellant to India.
(iv) I can give little weight to that relationship, including with the child unless it is shown that it would be unreasonable to expect the child to leave the UK.
(v) The child’s best interests must be borne in mind and he must be considered under the provisions of paragraph EX.1. of Appendix FM of the Immigration Rules.
(vi) The child is a qualifying child under that provision and under Section 117B(6) because he is a British citizen, but at such a young age and on the general principle that his focus will be entirely on his parents and immediate surroundings, it would not be unreasonable for him to accompany the Appellant to India if that is their choice.

Submissions
5. Mr Yeo relied on his skeleton argument and a copy of the relevant guidance. He stated that the Appellant’s wife was unable to be present at the hearing today because she was away on a business trip. Mr Yeo submitted that there were two grounds of appeal: Firstly, the judge had erred in law in his finding on deception; and secondly, he had erred in law in finding that it would be reasonable for the family to relocate.
6. Mr Yeo submitted that in concluding that the Appellant had used deception the judge’s reasoning was that there was no explanation from the Appellant for the actions of other people. Further, the judge failed to make findings on the Appellant’s evidence and that of his wife. The Appellant had submitted a lengthy witness statement which was, by and large, devoted to the issue of deception. Although the Appellant could not explain why there was a letter from him stating that he had moved from South Bank College to London International College, there was a vast amount of other evidence from the Appellant and his wife to discharge the evidential burden that the Appellant had not used deception.
7. The judge erred in law in finding at paragraph 19: “Assessing all the available evidence in this appeal and giving appropriate weight to the personal testimony of the Appellant and his wife, I find that the documents are sufficient to discharge the Respondent’s burden of proof and that the Appellant has not offered an adequate explanation to challenge the obvious conclusion that the documents submitted by him in 2008 were not genuine. I find that he used deception in that application and that the Respondent was right to adopt the general grounds for refusal of his application.”
8. Mr Yeo submitted that the judge erred in law in failing to give reasons for why he rejected the Appellant and his wife’s evidence. Stating that he had attached appropriate weight to that evidence was insufficient. The judge should state whether he accepted or rejected it.
9. Secondly, the judge had erred in law in finding that it was not unreasonable for the Appellant’s wife and his British citizen child to go and live in India. There was no challenge to whether there would be insurmountable obstacles for the Appellant’s wife to live in India, however the challenge related to whether it was reasonable to expect the family to relocate.
10. Following MA (Pakistan) & Ors [2016] EWCA Civ 705 the Appellant should succeed. It was not reasonable for a British citizen child to relocate outside the UK. The British citizen child was in the same position as a child who had been living in the UK for seven years. Therefore, where there was a qualifying child, there had to be strong reasons for justifying removal from the UK.
11. Mr Yeo submitted that the relevant Home Office policy was not mentioned before the First-tier Tribunal. The guidance suggested that it would never be reasonable for a British citizen child to be forced to leave the UK unless there was some criminality involved. In this case there was deception in an application, if proved, but this was not sufficient.
12. Mr Yeo submitted that on the facts before the judge and following the guidance, he should have found that it was not reasonable to expect the family to relocate to India and therefore the judge should look at the separation caused by the refusal of leave: the Appellant’s return and the situation where the Appellant’s wife and child remained in the UK. The judge did not look at the consequences of the refusal of leave to remain. The Appellant was not in a position such that he could return to India and apply to re-enter the UK because he would be caught by Rule 320(11) of the Immigration Rules if the finding of deception was upheld. There was no time limit in respect of this Rule. Accordingly, the separation would be permanent and the judge had erred in law in failing to consider such a separation, which had he done so, he would have found the refusal of leave was disproportionate.
13. Mr Singh submitted a copy of the guidance; a copy of the Appellant’s letter to the Border and Immigration Agency of 18th June 2008 and his grade report from London International College; a copy of the fax from UKBA to London International College asking five questions in relation to the Appellant and the response by e-mail from London International College stating that “We cannot locate any academic records related to the above-named”; and the Appellant’s postgraduate diploma in Management Studies from the London International College. He also submitted India Visa UK Overseas Citizens information and a copy of Section 117B of the 2002 Act.
14. Mr Singh submitted that the judge had accepted the wife’s credibility at paragraph 20, but it was not clear the view taken by the judge of her evidence in relation to the Appellant’s deception. There was evidence in the witness statement of the Appellant’s wife that she had attended South Bank College with the Appellant. It was therefore incumbent on the judge to explain why he relied on the letter dated 18th June 2008 and not the evidence of the Appellant in his witness statement or that of his wife. Mr Singh accepted that, in that respect, the judge’s decision lacked findings and reasons.
15. Mr Singh submitted that the judge’s decision was not contrary to the guidance. The Appellant’s child would not be forced to leave the EU. He could stay in the UK with his mother. It was a matter of choice whether they accompany the Appellant to apply for entry clearance or remain in the UK or permanently relocate to India. The guidance in this particular case did not apply. The judge was correct in his conclusion that it would be reasonable to expect the child to relocate to India. The child was not expected to leave the UK, it was simply an option, and accordingly there was no error of law.
16. In response, Mr Yeo submitted that the whole decision was predicated on expecting the child to leave the UK and therefore the judge had erred in law because the child was a British citizen. Therefore, it would not be reasonable to expect him to leave the UK in the particular circumstances of this case.

Discussion and Conclusion
17. I find that the judge erred in law in concluding that the Appellant had used deception in his application. The judge failed to make any findings on the credibility of the Appellant and his wife and failed to give reasons for why he accepted or rejected their evidence. It would appear from his findings at paragraph 20 that he accepted the evidence that the Appellant’s wife was now a British citizen, as was their child, and therefore it was incumbent on the judge to say whether he accepted her evidence that she had studied at the same college as the Appellant. Had he considered this evidence, it supported the Appellant’s account that he had never studied at London International College and had always studied at South Bank College. London International College was effectively the awarding body, but he had all his lessons and tutorials at South Bank College.
18. Instead the judge preferred to rely on the Appellant’s lack of explanation for why there was a letter from him stating
“... I changed my mind from attending the PGDIT at South Bank College London, where I got my visa extended. ...
I decided to study a further Management course to improve my Management skills; I made my decision and enrolled in London International College and studied Postgraduate Diploma (PgD) in Management Studies ...”.
19. Accordingly, I find that the judge erred in law in either failing to take into account the evidence of the Appellant and his wife or in failing to make credibility findings on the evidence of the Appellant and his wife. Further, the judge failed to give reasons for why he preferred the documentary evidence relied on by the Respondent as opposed to the evidence of the Appellant and his wife. Had he considered and accepted the evidence of the Appellant and his wife, he may well have come to a different conclusion.
20. The finding of deception has an impact on the assessment of whether it would be reasonable to expect the Appellant’s child to leave the UK which is dependent on a proportionality assessment taking into account all relevant factors including the immigration history of the parents. Accordingly, given the judge erred in law in his finding on deception, his subsequent assessment of reasonableness is also flawed.
21. I am not persuaded by Mr Singh’s submission that there was no error in the judge’s finding that it would be reasonable to expect the child to leave the UK. Whilst the guidance refers to the child being forced to leave the UK, section 117B(6) does not. Section 117B(6) involves an assessment of whether, in all the circumstances, it would be reasonable for the child to return to India with his parents. On the facts of this case the Appellant’s child is a British citizen and the quality of his residence and length of residence is irrelevant. He is a qualifying child. There had to be strong countervailing factors to expect him to leave the UK (MA Pakistan). In the absence of deception, it is arguable there are none.
22. Accordingly, I set aside the judge’s decision to dismiss the appeal under the Immigration Rules and on human rights grounds. I remit the matter to the First-tier Tribunal. I do so on the basis that the case involves an assessment of the oral testimony of the Appellant and his wife in accordance with paragraph 7.2 of the Practice Statements of 25th September 2012. None of the judge’s findings are preserved.

DIRECTIONS
(i) The Tribunal is directed pursuant to section 12(3) of the Tribunals, Courts and Enforcement Act 2007 to reconsider the appeal at a hearing before a First-tier Tribunal Judge other than First-tier Tribunal Judge Nicholls.
(ii) Any further evidence and/or skeleton argument should be served fourteen days before the hearing.
(iii) No interpreter is required and the appeal is to be listed for two hours.

Notice of Decision
The Appellant’s appeal is allowed and is remitted to the First-tier Tribunal.
No anonymity direction is made.

J Frances

Signed Date: 20th March 2017

Upper Tribunal Judge Frances