Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/06332/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5th December 2016
On 3rd January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

GURPREET KAUR
(NO ANONYMITY ORDER MADE)
Appellant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mrs Turnbull, of Counsel
For the Respondent: Mr S Armstrong, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant was born on 1st May 1983 and is a citizen of India. The Respondent refused her application for leave to remain on the basis of her family life as a partner of a British citizen resident in the United Kingdom. That refusal was dated 10th September 2015. The Appellant was required to leave the United Kingdom. Her partner is Barinder Singh who is a British citizen. Their son Tegvir is a British citizen and was born on 27th February 2016.
2. The appeal was dismissed by First-tier Tribunal Judge Sangha ("the judge") following a hearing on 4th April 2016.
The Grant of Permission
3. Upper Tribunal Judge Perkins granted permission to appeal (20th October 2016). He said it is arguable that it is unlawful for the judge to have made a finding that it is reasonable to expect a British child to leave the United Kingdom. He said that all grounds could be argued.
The Respondent's Position
4. There was no Rule 24 notice. It was submitted orally that the decision was well-reasoned. The Appellant could either leave the United Kingdom and apply for entry clearance in the usual way and take Tegvir with her or leave Tegvir here whilst she left and made the appropriate application. The judge was aware of the age of Tegvir and that Mr Singh had family in India. The judge was entitled to find that there were no insurmountable obstacles to family life continuing in India. The Appellant did not have leave to be here when her application was made and was an overstayer. Mr Singh was aware of it when they married and started a family. Reliance in particular was placed upon the case of MA (Pakistan) and Others v Upper Tribunal (Immigration and Asylum Chamber) and the Secretary of State for the Home Department [2016] EWCA Civ 705. It was particularly submitted that [114] of MA was determinative as the application of the reasonableness test required the judge to have regard to the wide public interests and required consideration of the immigration history and status of the parents. There was no evidence that Tegvir could not go to India. The Immigration Rules were a complete code and the relevant cases of Razgar [2004] UKHL 27 and Chen v Secretary of State for the Home Department (Appendix FM - Chikwamba - temporary separation - proportionality) IJR [2015] UKUT 189 (IAC) was considered.
The Appellant's Position
5. The grounds seeking permission to appeal in essence say that the judge made a material of law in saying that the Appellant was an overstayer whereas in fact she was not as she had the benefit of leave pursuant to Section 3C of the Immigration Act 1971 at the time of making her application. The judge also materially erred in finding that the Appellant and Mr Singh can both go to India because Mr Singh had not been there for some 17 years and only holds a British passport. He is in full-time employment, lives in his own house, and is settled here. The appeal should have been allowed because Tegvir is under the age of 18, is British, is in the United Kingdom, and it would not be reasonable to expect him to leave. There would be insurmountable obstacles to continuing family life abroad and there would be serious hardships that would flow from that. The judge materially erred in finding that there would only be a temporary separation as that may take longer than a brief period. The judge materially erred in not applying the two stage approach identified in MF (Nigeria) [2012] UKUT 00393 (IAC) and must consider the claim both under Article 8 under the Rules and Article 8 outside of the Rules. Tegvir is British with family ties here, had preliminary vaccinations, and it would be disproportionate and not in his best interests to leave the United Kingdom.
6. It was submitted orally that in accordance with ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, this appeal should have been allowed as Tegvir was not going to be able to exercise the right it was entitled to as a British citizen and his nationality had not been properly borne in mind.
The Judge's Determination
7. It was found in the determination that:
[15] The Appellant was born on 1st May 1983 and is a citizen of India. She arrived here on 7th October 2009 and leave was extended on various dates until 30th August 2014. Her application that was submitted in time for leave to remain was refused on 23rd May 2014. Her then solicitors accepted (on 17th June 2015) that she is an overstayer.
[16] The Appellant married Mr Singh on 28th February 2015.
[17] Mr Singh is a British citizen and settled in the United Kingdom and in full-time employment. When she submitted her application for leave to remain she was pregnant. Tegvir was born on 27th February 2016 and is a British citizen.
[18] The Respondent accepted that the Appellant had a genuine and subsisting relationship with Mr Singh.
[22] They can maintain their family life if she returns temporarily to India to make an application for entry clearance. The visa application processing times suggests that an application for entry clearance would be determined within some 30 days. They could continue to maintain contact with one another by modern means of communication. There would not be any disproportionate interference with their private and family life by their temporary separation. The circumstances are not so exceptional to warrant a grant of leave to remain outside the Rules.
[23] The public interest in the maintenance of effective immigration control is engaged. There is no infringement of the "English speaking" public interest as the Appellant speaks English and is well qualified with two degrees at Masters' level. Mr Singh is economically self-sufficient as he is in full-time employment. The Appellant is an overstayer and any private life established since her last application for leave was refused is to be given little weight. Tegvir is a "qualifying child". He is some 5 weeks of age and could travel with the Appellant and Mr Singh to India to enable her to apply for entry clearance in the proper manner. They have family members in India who would be able to provide them with support for a temporary period whilst she applies for entry clearance. Alternatively, Tegvir could remain with Mr Singh here whilst she returned to India to apply for entry clearance. She could continue to maintain contact with Mr Singh should they decide to take this option as the evidence shows that the visa processing time is around 30 days.
Discussion
8. MA explains that if Parliament had wanted the child's best interests to dictate the outcome of the leave application it would have said so [47]. The court can have regard to the wider public interest including the immigration history [101].
9. I am not satisfied that the judge adequately considered the intrinsic importance of citizenship to Tegvir who had rights which he would not be able to exercise if he moved to India. There has been no adequate consideration to the fact that he would lose the advantages of growing up and be educated here, in his own culture and language. As an infant of some 5 weeks old, he of course spoke no English and was entirely reliant upon his parents. There was no assessment as to whether or not he was being breastfed because if he was, it would be unreasonable to separate him from the Appellant. That evidence was not sought and was relevant to the assessment as to whether they should be separated. There was no assessment as to what support Tegvir was receiving under the National Health Service as a British citizen in relation to immunisations and any other ante-natal care that was required or available. There was no assessment as to what would be available in India and whether any vaccinations or ante-natal care could be provided and if so how. There was no assessment as to whether he was an Indian citizen and being denied his right to be brought up as an Indian citizen. Whilst his level of integration here is limited given his tender years, and nationality is not "a trump card", it is of particular importance in assessing his best interests. It is not enough to say that he can be temporarily separated from the Appellant or that M Singh could leave the United Kingdom with him. Whilst it is right that Mr Singh is not being required to leave the United Kingdom, there has been no assessment as to what would happen to his job and consequent ability to meet the financial requirements of the immigration rules if the Appellant had to leave and he was required to stay with Tegvir. Nor was there any assessment as to how long he could leave his job for if he went to India with the Appellant and Tegvir.
10. In all these circumstances I am satisfied that there was a material error of law by the judge in not assessing the importance of citizenship to the child and the impact upon the wider family relationships of either separating him from the Appellant or requiring them to all leave the United Kingdom to remain as a family.
11. In relation to the other Grounds of Appeal there was have no evidence that either Mr Singh or Tegvir would be admitted to India. The fact that Tegvir may have some support in India of family members is something the judge properly took into account but having excluded the matters to which I have already referred, the judge's assessment was inadequate to such an extent that I am satisfied that it is appropriate to set aside the decision.
12. I agree with both representatives that in light of the core findings I have made the matter would need to be remitted to the First-tier Tribunal and be heard by a Judge other than Judge Sangha. Given the inadequacy of the findings, I set aside the findings in this matter with the exception of those which I have extracted above in my [7] being the underlined extracts from the judge's determination from his [15-18 and 23].
Notice of Decision

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law. I set aside the decision.

I remit the matter to the First-tier Tribunal for a hearing before a judge other than Judge Sangha.

Signed Dated: 23rd December 2016

Deputy Upper Tribunal Judge Saffer