Tribunal decisions

The decision

IAC-AH-SC-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/04339/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 1st November 2016
On 30th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

Ingnatius [E]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Krushner of Counsel instructed by Jesse Douglas & Aaskells Solicitors
For the Respondent: Mr Diwncyz, Home Office Presenting Officer

DECISION AND REASONS

1. This is the appellant's appeal against the decision of Judge Pickup made following a hearing at Manchester on 29th April 2016.

Background
2. The appellant is a citizen of Nigeria born on 23rd May 1968. He appealed against the decision of the Secretary of State, dated 3rd August 2015, refusing his application for leave to remain in the UK on human rights grounds.
3. The appellant entered the UK in November 2014 on a multivisit visa and, within his extant leave, applied for further leave to remain on private and family life grounds on the basis of his relationship with his partner and their three children, all of whom are British citizens.
4. The respondent was not satisfied that the appellant was related as claimed to the children but the issue was resolved by DNA evidence which concluded conclusively that he was the father of the children.
5. The judge was satisfied that the appellant was in a subsisting relationship with his partner and that he jointly shared with her parental responsibility for the three children.
6. The judge recorded that the appellant could not meet the requirements of the Immigration Rules since, having entered as a visitor, he did not meet the eligibility requirements of Appendix FM and did not provide satisfactory evidence that he was living with his partner for a period of two years before the application was made. Although the relationship is of longstanding, he had been living and working in Italy for some ten years, visiting the family in 2006, 2008, 2009 and has been living here since 2014.
7. The judge considered the appellant's family life circumstances outside the Rules, having regard to the best interests and welfare of the children, and he concluded that it would not be reasonable to expect them to leave the UK. Their best interests were undoubtedly to remain here with their mother.
8. He then took into account, as he was required to do, Section 117B of the 2002 Act, including Section 117B(6) which provides:
"In the case of a person who is not liable to deportation, the public interest does not require the person's removal where-
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the UK."
9. The judge recorded that the IDI on family migration, paragraph 11.2.3 states 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 citizen child where the effect of that decision would be to force the British child to leave the EU, regardless of the age of that child.
10. It also states that:
"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."
11. The section then indicates that, if there is no satisfactory evidence of a genuine and subsisting parental relationship, or where the conduct of the parent or primary carer gives rise to considerations of such weight as to justify separation, it may not be appropriate to grant leave.
12. The judge recorded that the family life which existed between the appellant and his family members could properly be described as entirely precarious. He had no legitimate expectation of being able to remain in the UK. He had failed to meet the requirements of the Immigration Rules. He had circumvented immigration control to enter and join his family by practising deception.
13. He then wrote as follows:
"In all the circumstances of this case I find that there are strong public interest considerations, quite apart from those in Section 117B(1) to (3) which justify requiring this appellant to leave his family and make proper application from outside the UK for entry clearance. In particular he has sought to circumvent entry clearance requirements for settlement with his partner and children. I also bear in mind that he has had a very limited role in the upbringing of the children prior to arriving in the UK in November 2014; at the date of application he had been a part of a family unit less than six months. I accept that he has now been with them for some eighteen months and that the family life bonds between the appellant and his family will have strengthened. However his conduct is a weighty public interest consideration that justifies refusal of the application and to require him to apply for entry clearance through the Rules. His absence may be temporary, but no more than the family life situation that prevailed before he came to the UK in November 2014. It is of course also open to Ms [E] and the children to join the appellant in Nigeria, or Italy whilst he makes application for entry clearance, though that will be a matter of their choice."
14. On that basis he dismissed the appeal.
The Grounds of Application
15. The appellant sought permission to appeal on a number of grounds, but in particular that the judge had misapplied Section 117B which makes it clear that the public interest does not require removal of a parent of a British citizen child where it would be unreasonable to expect the child to leave the UK. It was not open to the judge to go behind this section in constructing an alternative public interest consideration as confirmed by the president in Treebhawon [2015] UKUT 00674.
16. Permission to appeal was granted by Judge Ford in relation to that ground.

The Hearing
17. Mr Diwncyz accepted that, following the decision in R on the application of MA and Others [2016] EWCA Civ 705, that the decision could not stand. He did not seek to argue that I should do anything other than to substitute a decision allowing the appeal.
18. In MA, the Court of Appeal analysed the structure and meaning of Section 117B, in particular 117B(6), and Alias LJ held as follows:
"17. Sub-Section (6) falls into a different category again. It does not simply identify factors which bear upon the public interest question. It resolves that question in the context of Article 8 applications which satisfy the conditions in paragraphs (a) and (b). It does so by stipulating that once those conditions are satisfied, the public interest will not require the applicant's removal. Since the interference with the right to private or family life under Article 8(1) can only be justified where there is a sufficiently strong countervailing public interest falling within Article 8(2), if the public interest does not require removal, there is no other basis on which removal could be justified. It follows, in my judgment, that there can be no doubt that Section 117B(6) must be read as a self-contained provision in the sense that Parliament has stipulated that where the conditions specified in the sub-Section are satisfied, the public interest will not justify removal. It is not legitimate to have regard to public interest considerations unless that is permitted, either explicitly or implicitly, by the sub-Section itself.
18. Ms Giovannetti QC, Counsel for the Secretary of State, argued otherwise. She contended that there may be circumstances where even though the provisions of paragraphs (a) and (b) are satisfied and the applicant is not liable for deportation, the Secretary of State may nonetheless refuse leave to remain on wider public interest grounds. But as she had to accept, that analysis requires adding words to sub-Section (6) to the effect that where the conditions are satisfied, the public interest will not normally require removal, because on her approach, sometimes it will. I see no warrant for distorting the unambiguous language of the Section in that way.
19. In my judgment, therefore, the only questions which courts and Tribunals need to ask when applying Section 117B(6) are the following:
(i) Is the applicant liable to deportation? If so, Section 117B is inapplicable and instead the relevant code will usually be found in Section 117C.
(ii) Does the applicant have a genuine and subsisting parental relationship with the child?
(iii) Is the child a qualifying child as defined in Section 117D?
(iv) Is it unreasonable to expect the child to leave the UK?
20. If the answer to the first question is no, and to the other three questions is yes, the conclusion must be that Article 8 is infringed."
19. Accordingly, the judge, having found that the appellant was not liable to deportation, that he had a genuine and subsisting parental relationship with his children, that they were qualifying children and that it was unreasonable to expect them to leave the UK, erred in having regard to other public interest considerations, and dismissing the appeal. It was not open to him to apply an external test in relation to the public interest question since the wording of sub-Section 117B(6) sets out in terms that the public interest will not justify removal where the conditions in the sub-Section are satisfied.

Notice of Decision
20. The Immigration Judge erred in law. His decision is set aside. It is remade as follows. The appellant's appeal is allowed.
No anonymity direction is made.

Signed Date 30 November 2016

Deputy Upper Tribunal Judge Taylor