Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/05776/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 March 2017
On 5 April 2017

Before

THE HONOURABLE MR JUSTICE MITTING
DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ALINA VERSHININA
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant: Mr P Armstrong, Home Office Presenting Officer
For the Respondent: Ms N Karbani, Counsel instructed by Sterling & Law Associates LLP

DECISION AND REASONS
1. Alina Vershinina is a 32 year old citizen of the Kyrgyz Republic. She entered the United Kingdom on 2 July 2001 as either a visitor or a student, it is not clear which. Then, or later, she was granted leave to enter or leave to remain until the end of 2005.
2. On an unknown date in 2005 she entered into a ceremony of marriage with Lincas Kinavicius, an EEA national purportedly exercising treaty rights. On 8 November 2005 she was granted an EEA residence card on the basis of that marriage valid until 29 July 2006. The marriage, if genuine, did not last long. According to her representatives’ letter of 11 June 2015 her husband deserted her “early in marriage” and she has not been in contact with him since.
3. On 2 May 2006 she gave birth to a son Alexander Veshinin. According to his birth certificate the father is Giorgi Gamkrel Idze, a builder, born in Georgia.
4. Meanwhile on 14 March 2006 Ms Vershinina claimed asylum in a false name, Alyona Dadiani. She claimed to have entered the United Kingdom clandestinely on the previous day. The claim was refused on 26 April 2007.
5. On an unknown date in 2006 she also applied for a residence card as the spouse of Lincas Kinavicius. The application was refused on 29 September 2006. Therefore, Ms Vershinina had no leave to remain at any time after 29 July 2006.
6. On 25 May 2015 Ms Vershinina applied for indefinite leave to remain as the parent of a son, a non-British citizen who had lived for at least seven years in the United Kingdom.
7. In answer to question 4.7 on the application form “Have you ever been refused asylum in the UK?” she ticked the “No” box. Her application was refused on 10 September 2017 on the ground that she had failed to declare the fact that she had claimed asylum under the alias name Alyona Dadiani so that her presence in the United Kingdom was not conducive to the public good.
8. Accordingly she did not satisfy the requirements of S-ILR1.8 of Appendix FM to the Immigration Rules and though she did have a genuine and subsisting parental relationship with a child who had lived in the United Kingdom continuously for seven years, it was not unreasonable to expect him to leave the United Kingdom with her so that the requirements of EX.1(a)(ii) were not satisfied. The Secretary of State also decided that she did not qualify under paragraph 276ADE(1) and that there were no exceptional circumstances justifying the grant of indefinite leave to remain.
9. She appealed to the First-tier Tribunal. In a decision and reasons promulgated on 6 October 2016 her appeal was allowed by First-tier Tribunal Judge Aujla. The Secretary of State appeals with the permission of First-tier Tribunal Judge Astle. The First-tier Tribunal Judge dealt with the immigration history in paragraphs 33 and 34 of the decision:
“33. It is clear that the appellant failed to disclose the fact that she had previously made an asylum claim under a false name. She had made an asylum claim under a false name which was refused. It was a kind of a breach of trust case and the appellant should not have done that. She stated that she was eight months pregnant and when she made the application under a false name it was at the suggestion of her then partner. She was very young at that time. The name she used was that of her sister. Her application was refused. However undesirable her conduct was in making a false asylum claim, I cannot think of a criminal offence that she could have been successfully prosecuted for because she made an asylum claim under a false name. In the circumstances, I am satisfied that the Respondent’s conclusions on suitability were unsustainable.
34. The Respondent’s decision on suitability having been set aside by me, I therefore find that the Appellant could benefit from paragraph EX.1(a) of Appendix FM. ... The only issue is whether or not it would be reasonable to expect him to leave the United Kingdom with the Appellant”.
10. Mr Armstrong for the Home Office submits that those paragraphs demonstrate a clear and material error of law. We agree. When she made her asylum claim it was false in two respects, both as to the name in which it was made and as to the circumstances which she claimed gave rise to her asylum claim including the date of her arrival in the United Kingdom, the day before it was made. She also committed an offence when she represented on 25 May 2015 that she had made no asylum claim and had had none refused. Both offences were committed under Section 24A of the Immigration Act 1971, see as to the first R v Nagmadeen [2003] EWCA Crim 2004 cited in Macdonald at paragraph 14.37. The error of law concerned a critical finding because it was, as the judge stated, that which led him to conclude that Ms Vershinina could benefit from EX.1(a). The judge went on to make a further error of law, he did not consider at all the considerations set out in Section 117B of the 2002 Act as he was required to do by Section 117(2)(a).
11. Ms Karbani acknowledges those errors but submits nonetheless that if this appeal were to be remitted for further hearing it is inevitable, or at the very least highly likely, that the outcome would be the same because of the circumstances of the appellant’s son. They are briefly summarised in the decision. He is now 11. An application had been made for him to become a British citizen by naturalisation. He was and is autistic and is attending a school at which he is provided, we are told, one-to-one assistance. If removed to Kyrgyzstan he would be removed to a country which he has never visited, let alone inhabited. Ms Vershinina said, and the judge accepted, that she had no family in the Kyrgyz Republic and did not herself speak Kyrgyz. Her son self-evidently does not either.
12. In those circumstances there was, against a very poor immigration history to be balanced under Section 117B of the 2002 Act, what appear to be compelling circumstances of Ms Vershinina’s son. Any appeal therefore correctly addressed is likely to turn critically upon Section 117B(6) which requires that in the case of a person not liable to deportation, which Ms Vershinina is not, the public interest does not require her removal and her son’s removal where she has a genuine and subsisting parental relationship with him and it would not be reasonable to expect him to leave the United Kingdom. These are difficult questions which need to be informed by a thorough understanding of the facts which, for obvious reasons, we cannot have.
13. We therefore see no alternative, despite the worry and expense to which Ms Vershinina will be put but to remit the case for a fresh hearing to the First-tier Tribunal to approach on a correct basis and to reach what may prove to be a difficult decision on the facts.

No anonymity direction is made.

Signed Date 4 April 2017

Mr Justice Mitting

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date 4 April 2017

Mr Justice Mitting