Tribunal decisions

The decision

IAC-BFD-MD-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/04854/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 March 2017
On 20 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE APPLEYARD

Between

R K O
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Balroop, Counsel.
For the Respondent: Ms A Fijiwala, Home Office Presenting Officer.

DECISION AND REASONS
1. The Appellant is a citizen of Ghana who entered the United Kingdom on 16 September 2004 as a visitor on a visa granted from 26 September 2003 through to 26 March 2004. He was then granted entry clearance as a student from 10 September 2004 to 31 October 2008. He was encountered by immigration officers working in breach of his conditions and his leave was curtailed on 7 April 2006. He applied on 28 September 2007 for an EEA Residence Card but the application was refused and his subsequent appeal dismissed. On 19 May 2015 he applied for leave to remain as the dependent of a person with limited leave to enter the United Kingdom. Those who were representing him also asked for his application to be considered under Article 8 of the European Convention on Human Rights (ECHR) on the basis of the Appellant’s relationship with the children of his partner. Following refusal of this application the Appellant appealed and in a decision promulgated on 7 September 2016 Judge of the First-tier Tribunal Spicer dismissed it both under the Immigration Rules and on human rights grounds.
2. Albeit that no anonymity direction was made in the First-tier Tribunal I make such a direction here in light of evidence in relation to the two children HK and HK
3. The Appellant sought permission to appeal which was initially refused by Judge of the First-tier Tribunal Grant-Hutchison on 21 December 2016. However, a renewed application succeeded on 24 January 2017. Upper Tribunal Judge Pitt’s reasons for granting permission were:-
“1. The Appellant is a citizen of Ghana who appealed against the respondent’s decision refusing leave on Article 8 ECHR grounds. First-tier Tribunal Judge (FTTJ) Spicer dismissed the appeal.
2. It is arguable that the FTTJ erred in the assessment of family life as even if the appellant is considered as an “uncle” to the children this could amount to a family life of substance in the context of evidence that he cares for the children while their mother is working, attends school meetings and lives in the family home.
3. The grounds are arguable.”
4. Thus the appeal came before me.
5. Mr Balroop expanded the grounds seeking permission to appeal which were drafted by him on 15 September 2016. He submitted that there was a narrow issue in this appeal. In short the Appellant currently lives with his partner Ms B and they are in a relationship. She is the biological mother of HK and HK and that she lives with them. The Appellant helps Ms B care for HK and HK who are British citizens. HK has a diagnosis of Autistic Spectrum Disorder. The Appellant plays a supportive role in the lives of HK and HK and attends school meetings regarding HK and he looks after both boys whilst Ms B is at work. Despite these findings the Judge took the view that the relationship between the Appellant and the two boys was more akin to that of an “uncle” or family friend and that this finding was based on the children and the children’s schools referring to the Appellant as “uncle”. Mr Balroop submitted that the Judge had failed to assess or properly assess the evidence and her finding in relation to the parental relationships between the Appellant and the children is incorrect. Moreover the evidence in relation to this family unit (the two boys are British citizens) was not challenged as the Respondent was unrepresented at the hearing. Mr Balroop asserts that there is no finding on the credibility of the Appellant or Ms B or indeed any reason given why the oral evidence and evidence in the witness statements was not given any weight. The fact that the Appellant was called “uncle” did not define the nature of the relationship. The Judge erred in failing to properly assess the evidence or at the very least give reasons for ignoring or giving no weight to the evidence that the Appellant has a father/son relationship with the two boys. Both representatives today did in fact refer me to the authorities of R (on the application of RK) v SSHD (s.117B(6); “parental relationship”) IJR [2016] UKUT 00031 (IAC) and MA (Pakistan) & Ors [2016] EWCA Civ 705. Mr Balroop relied on the fact that in RK the Upper Tribunal endorsed the IDI Guidance concerning parental relationships with children and submitted that this particular Appellant clearly satisfies the criteria in that guidance and if the Appellant has such a parental relationship with the children then the appeal should be allowed pursuant to MA (Pakistan). The Appellant is in a genuine and subsisting parental relationship with the two boys who are qualifying children and as such the Judge was required to assess the public interest in relation to his removal under Section 117B(6) and the failure to do so properly is unlawful.
6. Ms Fijiwala on behalf of the Respondent opposed the appeal. She urged me to accept that the Judge had directed herself properly and that Mr Balroop’s grounds are merely a disagreement. The Appellant could not meet the requirements of the Immigration Rules and that in considering the position outside of those Rules at paragraph 67 of her decision the Judge has accepted that the Appellant has a private life in the United Kingdom and a family life with his partner and the children. However, this is an Appellant who does not have any leave to remain in the United Kingdom and his partner is not a qualifying one and accordingly removal would have no impact on the Appellant’s immigration status. The Judge was entitled to find at paragraph 97 of her decision that removal was a proportionate response having considered the totality of the evidence. The Judge had factored into the analysis the issues referred to in RK which might prompt closer scrutiny including, in particular, whether any contact is only recent in nature. RK suggests that other people who spend time with, or reside with the relevant child in addition to their parents, such as their grandparent, aunt or uncle or other family member, or close friend of the family would not generally be considered to have a parental relationship with a child and that that is the position in this instant appeal.
7. Whilst the decision that the Judge came to might not be one that I would have come to the question for me is whether in coming to her decision Judge Spicer has materially erred. I do not find that she has.
8. The issue of the nature of the relationship between the Appellant and the two boys has been addressed. For example, at paragraph 94 there is reference to “uncle” and a finding that he is not known at the children’s school as their step-father. Indeed the children themselves refer to him as “uncle”. Whilst finding that the Appellant has a non-parental relationship with the boys the Judge again has fully analysed the evidence and made a finding at paragraph 95 of her decision that he “plays a supportive role” in the lives of HK and HK. She has gone on to take into account the relatively short length of time that he has been known to the children and also (paragraph 91 of her decision) the fact that the Appellant’s application for leave to remain dated 19 May 2015, which was the subject of the appeal, was made as a single applicant with no dependents. She found that category of the Appellant’s application did not suggest that he had any financial or other responsibility for the children. He in fact disclosed no dependents on his application. Beyond that the Judge was entitled to conclude that the Appellant did not fall within the definition of “parent” in paragraph 6 of the Immigration Rules HC 395 (as amended).
9. Having analysed the evidence the Judge was entitled to come to the conclusion that she did at paragraph 97 of her decision that in balancing all the rights of the Appellant, the two boys and their mother individually as against the rights of others and bearing in mind the provisions of Section 117B of the 2002 Act any interference with the Appellant’s right to private and family life is proportionate to the legitimate public end sought to be achieved. The Judge has analysed Section 55 of the Borders, Citizenship and Immigration Act 2009 issues having concluded its pertinent application to this appeal. However, she was entitled to go on to find that the primary carer of the children is in fact their mother who is a lady with limited leave to remain in the United Kingdom and entitled to remain in accordance with the conditions of her leave. Both boys are British citizens and similarly entitled to remain in the United Kingdom. It was open to the Judge to find that given his statement of special educational needs it was in the best interests of HK to remain in the United Kingdom where provision is made for those needs.
10. The Judge has adequately reasoned her decision and come to a conclusion that was open to be made on the evidence. The grounds seeking permission to appeal are no more than a disagreement with that decision.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside the decision.
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 15 March 2017

Deputy Upper Tribunal Judge Appleyard