Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers HU/04199/2020
UI-2021-001233

THE IMMIGRATION ACTS

Heard at Manchester on
Decision and Reasons Promulgated
On the 25th March 2022
On the 23rd June 2022

Before

Deputy Upper Tribunal Judge Sills

Between

AKM
ANONYMITY DIRECTION MADE
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

ERROR OF LAW DECISION

Representation:

For the Appellant: Mr Turner,
For the Respondent: Mr Tan,
Introduction
1. The Appellant (A) appeals against the determination of First-Tier Tribunal Judge Davies (the Judge) dated 30 September 2021, dismissing his appeal against the refusal of his human rights claim.
Factual Background
2. A is a citizen of Pakistan, born on 18 August 1981. The present appeal concerns his relationship with a Ms Ilyas, a recognised refugee, and indeed her children. To provide the proper context, it is necessary to refer to two previous IAC decisions concerning A and Ms Ilyas, before returning to the present proceedings.
3. My understanding is that Ms Ilyas’s asylum claim was that she was at risk as a Pakistani Muslim woman who had separated from her Muslim husband and begun a relationship with a man of the Hindu faith, namely A. This was accepted by Judge Shanahan in a decision dated 5 January 2017 (see e.g., para 30).
4. There was then a further decision by Judge Tully, dated 18 April 2018 though this appears to be an error and the year was 2019, considering A’s previous appeal against the refusal of his application for leave to remain based on his relationship with Ms Ilyas. Judge Tully found that A had previously used deception in an immigration application having relied on a false education certificate and so did not satisfy the suitability requirements. A could not meet the partner definition under the Rules as the couple had not cohabited for more than two years at the date of the application. Judge Tully did not accept that A had a parental relationship with Ms Ilyas’ children. While Judge Tully accepted that A and Ms Ilyas were in a relationship, the decision was proportionate and the appeal dismissed.
5. A made a further application for leave to remain on the basis of his relationship with a Ms Ilyas on 9 January 2020. The Respondent (R) refused the application on 2 March 2020. This was largely on the basis of an enforcement visit to A and Ms Ilyas’s stated address on 8 January 2020. A was not present and Ms Ilyas informed the officials that the couple had split up in March 2019. A’s appeal was then dismissed by the Judge on 17 October 2021. The Judge found that A did not meet the requirements of the Rules on the basis of his relationship with a partner. He did not meet the requirements of Rule 276ADE. Outside the Rules, the Judge found the impact on A’s private life would not be disproportionate.
6. A applied for permission to appeal. While the grounds raised various points, only one ground was pursued before me which I summarise. The Judge had failed to consider the best interests of the children. While the Judge referred to the previous decision of Judge Tully, there was no consideration of the new evidence when doing so. The Judge also failed to consider whether the children could have relationships with both parents. In granting permission on 18 December 2021, Judge Veloso highlighted this ground as having potential merit. R filed a Rule 24 response opposing the appeal and arguing that the Judge did not accept that there was a parental relationship between A and the children. Given the Judge’s findings, it would be difficult for the Judge to make a finding on s55 that was beneficial to A.
7. Prior to the hearing A filed a skeleton argument and application to rely on an additional document. The additional document was a birth certificate showing that Ms Ilyas gave birth to a child on 4 August 2021. A is not named on the birth certificate and this appears to be the first reference to this child in the proceedings up to this point, despite the birth pre-dating the FTT appeal hearing.
The Hearing
8. I heard submissions from Mr Turner and Mr Tan in line with the parties’ positions set out in the grounds of appeal and Rule 24 response respectively. Mr Turner argued that the Judge had failed to consider relevant evidence about A’s relationship with the two children, failed to make relevant findings on this issue, failed to consider the impact of removal on the children. Mr Tan argued that the Judge gave adequate reasons for finding that A did not have a genuine and subsisting relationship with the children. As he could not establish that he had such a relationship, there was no need to consider the best interests of the children. Mr Turner accepted that the new evidence would only be relevant if it was established that the Judge had made an error of law and the decision needed to be re-made. I reserved my decision.
Findings
9. I note at the outset that A faced a number of difficulties in succeeding in this appeal. The determination of Judge Tully had found that he had previously used deception and so the suitability requirements were not met. While accepting the relationship with Ms Ilyas was genuine, Judge Tully had not accepted that A had a genuine and subsisting parental relationship with her children. Finally, the enforcement visit referred to above had raised serious questions about A’s relationship with Ms Ilyas. It is also right to note that the grounds pursued before me do not challenge the finding that the relationship between A and S was not subsisting.
10. Notwithstanding these issues with A’s case, I consider that there is merit in the ground of appeal pursued. There is no consideration of the best interests of the children. The question is whether the other findings made by the Judge render this failing immaterial.
11. R submits in effect that the Judge’s findings at para 25 concerning EX1 renders any failure to consider the best interests of the child to be immaterial. The Judge in line with the Devaseelan guidelines properly notes Judge Tully’s finding that A did not have a genuine and subsisting relationship with the two children (para 24). After referring to A’s evidence about the children’s relationship with their biological father, the Judge refers to evidence from one of the children, Haiqa, that they continue to see their biological father fortnightly, and finds that there are no grounds to depart from the determination of Judge Tully concerning EX1 (para 25). Hence, the only matters considered by the Judge in finding that there was no genuine and subsisting parental relationship were the previous decision of Judge Tully, and the evidence about the children’s biological father.
12. There are two interlinked problems with this. First, the finding that the children maintain a regular relationship with their biological father does not preclude a finding that A had a genuine and subsisting parental relationship with the children. There is no finding as to whether the children have a genuine and subsisting parental relationship with their biological father given the limited contact. Even if there were such a finding, as per R(on the application of RK) (s.117B(6); “parental relationship”) IJR [2016] UKUT 00031, it is possible, though unusual, for children to have parental relationships with more than two people.
13. Second, and in view of this first problem, the Judge reaches this conclusion prior to, and without, consideration of significant evidence concerning A’s relationship with the children, or indeed his relationship with Ms Ilyas. Haiqa’s evidence is discussed subsequently at paras 27, 43 and 44. At para 28 the Judge accepts that A began to live with Ms Ilyas and the children in 2015. There were also around 2 and a half years between the two appeal hearings. In my view these were all relevant matters at least some if not all of which the Judge should have taken into account when assessing A’s relationship with the children.
14. It is right to acknowledge that the Judge also failed to consider matters unhelpful to A when assessing his relationship with the children. In particular, there is no consideration of the evidence concerning the enforcement visit or the finding that the relationship between A and S was not subsisting. It may well be that in view of these findings, the Judge could simply have stated that he did not accept that there was any ongoing relationship of significance with the children. But in my view the Judge was required to make a finding as to whether the A had a genuine and subsisting parental relationship with the children on the basis of the relevant evidence and failed to do so. I therefore find that the Judge’s finding at para 25 that there were no grounds to depart from the conclusions of Judge Tully is inadequately reasoned and fails to take material matters into account. This finding therefore cannot render the failure to consider the best interests of the children immaterial.
15. Along with failing to consider explicitly the best interests of the children, the Judge also failed to make the necessary findings of fact such as to show that their best interests would not be affected by the decision to remove A. I have set out above why the finding that A did not have a genuine and subsisting relationship with the children was flawed. While the Judge subsequently makes criticisms of aspects of the evidence, the next clear finding in the ‘Family Life’ section of the decision is a global finding at para 47 that A had not discharged the burden upon him of establishing that he was in a genuine and subsisting relationship with Ms Ilyas. There are no further findings on A’s relationship with the children beyond what is stated at para 25 in the ‘Family Life’ part of the decision. The finding that the relationship between A and Ms Ilyas was no longer subsisting did preclude a finding that there was a subsisting parental or otherwise significant relationship between A and the children, as stepparents can continue to enjoy significant relationships with stepchildren after their relationship with the biological parent ends. Further, even a sustainable finding that the relationship between A and the children did not amount to a genuine and subsisting parental relationship would not preclude a finding that nonetheless A had an otherwise significant relationship with the children such that their best interests would be prejudiced by his removal. Hence the Judge has failed to make the necessary findings as to A’s relationship with the children such as to show that their best interests would not be affected by the decision to remove A. It follows that for this further reason, the failure to consider the best interests of the children was a material error of law.
16. I conclude that the decision contains material errors of law and I set it aside. There is no consideration of the best interests of the children. The Judge’s finding that A did not enjoy a genuine and subsisting parental relationship with the children is flawed as it is inadequately reasoned and fails to consider material evidence. Finally, the Judge failed to make necessary findings of fact as to A’s relationship with the children such as to show that their best interests would not be affected by the decision to remove A. Notwithstanding the difficulties in A’s appeal, these errors were at least capable of affecting the outcome of the appeal and so amount to material errors. Whether A had a parental relationship with the children was an important issue not least given their status as refugees. Further, the nature of any ongoing relationship, even if not amounting to a parental relationship, was relevant to the assessment of the best interests of the children and hence the proportionality of the decision under ECHR Article 8.
17. I have considered whether the matter should be retained in the UT or remitted to the FTT. I have had regard to para 7 of the 2014 Practice Statement for the Immigration and Asylum Chamber of the Upper Tribunal. At first glance, it may appear that as the errors identified concern only one aspect of the appeal, namely A’s relationship with the children, and there was no successful challenge to any findings in relation to the relationship with Ms Ilyas, the amount of fact finding would be limited. However, I consider that remaking only the part of the decision concerning the children while preserving the findings concerning the relationship with Ms Ilyas, would put undue constraint on the future fact finding of the Tribunal. I am satisfied that A’s claimed family life with Ms Ilyas and her children should be considered together and free from such constraint. I therefore find that the appropriate cause of action is to remit the appeal to the First Tier for a fresh hearing with no findings of fact preserved.
Notice of Decision
The determination of the First-tier Tribunal contains a material error of law and is set aside.
The appeal is remitted to the First-tier Tribunal sitting at Manchester to be considered afresh (de novo) by a judge other than First-tier Tribunal Judge Andrew Davies.
Signed Date 20 April 2022
Deputy Upper Tribunal Judge Sills

Direction regarding anonymity – Rule 14 of the Upper Tribunal Rules
Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of Court proceedings.
Signed Date 20 April 2022
Deputy Upper Tribunal Judge Sills