Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal No: HU/07052/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 17 November 2016
on 23 November 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

RACHEL [T]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr G Madubuike
For the Respondent: Mr M Matthews

DETERMINATION AND REASONS
1. The appellant was represented by Mr Madubuike, of Immigration Advice Service, Manchester. He explained that he is a solicitor qualified in England and Wales, not in Scotland, and also qualified with the OISC, and so entitled to appear before tribunals in Scotland. The respondent's representative, Mr Matthews, is a Senior Home Office Presenting Officer.
2. The appellant is a citizen of Gabon. She entered the UK as a visitor on 1 February 2015. By application dated 2 June 2015 she sought to remain on the basis of family life in the UK.
3. The respondent refused the application for reasons set out in a decision dated 17 September 2015. In terms of the partner route, the appellant having entered as a visitor did not meet the eligibility requirements. Relocation to Gabon might cause a degree of hardship but there was no evidence of insurmountable obstacles, so EX.1(b) did not apply. In terms of the parent route, the eligibility requirement was not met, for the same reason; the appellant did not have sole parental responsibility; the appellant had a genuine and subsisting parental relationship with her children, but as she failed the eligibility requirements, she did not benefit from the criteria in EX.1. The application did not meet the criteria for a private life claim (which is not in dispute). The "particular circumstances set out" in the application did not constitute exceptional circumstances to warrant leave outside the rules: "? you state that you are married to a UK citizen and wish to live in the UK with your family. This has been carefully considered, however it is open to you to obtain the correct entry clearance for a more permanent residence in the UK ? there are no exceptional circumstances ? ".
4. FtT Judge Green dismissed the appellant's appeal by decision promulgated on 30 June 2016.
5. The rather over-lengthy grounds of appeal to the UT and the further pleadings for the appellant in a rule 25 response are in large parts no more than reassertion of the appellant's case and disagreement with its outcome. They mix up various points in a rather confused way and lapse into hyperbole - e.g. paragraph 14 of the grounds, "Fatally, the judge in spite of all the evidence concludes that ? the decision ? was not disproportionate ? these conclusions are very well misplaced and inaccurate ? the judge blatantly refused to give due respect or credence to the ? SSHD's policy ? or case law". Far too much is made of political problems, health care deficiencies and the absence of an Embassy in Gabon. The oral submissions veered even further towards stridency, Mr Madubuike submitting that the appellant should not be required to make any further application to the respondent because it would be arbitrarily refused irrespective of its merits, which would amount to persecution of the appellant by the Home Office.
6. The most pertinent of the evidence appears to be as follows.
(i) The appellant, born on 18 September 1985, is a citizen of Gabon and of no other country.
(ii) The appellant has a daughter, [AC], born on 4 July 2001, who is also a citizen of Gabon and of no other country.
(iii) Mr Martin [T], born on 16 May 1987, is a citizen of the UK and of no other country. He and the appellant met while he was working in Gabon in 2009. They married in South Africa on 3 May 2010. In 2013 they moved from Gabon to South Africa, for reasons of Mr [T]'s work.
(iv) Mr & Mrs [T] have twin daughters, [MT] and [RT], born in South Africa on 12 May 2014, who are citizens of the UK (it seems likely they are also entitled to Gabonese nationality, although this possibility is denied in the grounds of appeal; nothing turns on that).
(v) The possibility of Mr [T] adopting [AC] has been explored, but nothing has been concluded which amounts to an adoption in the law of the UK. She has lived in family with Mr [T] along with her mother. Her ongoing relationship with her natural father, if any, does not seem to have been mentioned. She has no separate case, and is her mother's dependant for purposes of these proceedings.
(vi) Mr [T]'s work contract in South Africa came to an end in 2015. All five family members travelled to the UK on 1 February 2015, the appellant and [AC] entering on visit visas obtained for an earlier visit, which remained valid. (The evidence is somewhat contradictory as to whether Mr [T] knew of his redundancy before or after they travelled to the UK; it appears to have been shortly after they arrived.)
(vii) At the time of the application leading to these proceedings the appellant was unable to meet the requirements of the immigration rules for leave to remain, not only on the eligibility point arising from her entry as a visitor. Mr [T] was unemployed, and the minimum income requirement could not be satisified.
(viii) By the time of the FtT hearing on 17 June 2016, Mr [T] was in employment in Peterhead. He and Mrs [T] have bought a house there, where the five family members now live. Mr [T]'s extended family lives in Peterhead.
(ix) It was not demonstrated that all the strict evidential requirements of the rules could be met by the time of the hearing, but it did appear that broadly there was enough income, and the appellant was likely to be able to make a successful application, although still required by the rules to do so from outside the UK.
7. The most coherent points to be distilled from the grounds and submissions for the appellant are as follows.
(i) The judge erred in law because Home Office policy, an IDI instruction of August 2015, section 9, lists exceptional circumstances justifying leave outside the rules, all of which circumstances were present in this case, so that the only possible outcome was a grant of leave.
(ii) The judge failed to make clear findings on the best interests of the children in the case, as required by section 55 of the 2009 Act and for purposes of article 8.
(iii) The judge failed to resolve the question which arose under EX.1.1(a) of the rules or under section 117B (6) of the 2002 Act: whether it would be reasonable to expect the younger two children to leave the UK.
8. Having heard the oral submissions, I reserved my decision.
9. Although the point based on policy was doggedly insisted upon, it is misconceived. The policy lists maters to be considered, of a nature likely to be present in almost every family life case, e.g. best interests of children, nature of family relationships, and immigration status of the various family members. It does not instruct decision makers that in every case where such considerations arise, they are to be taken as exceptional, and leave outside the rules is to be granted.
10. The respondent's decision did deal with "exceptional circumstances", although briefly. There is nothing in the argument that judge failed to do so. He dealt with all factors put to him. The ground is only a complaint that he did not reach a judgment, based on those factors, as urged by the appellant.
11. It was submitted for the appellant that it went against the evidence to hold that the children could not be cared for without the appellant. That submission was not well founded. It was a position the appellant and Mr [T] were unwilling to contemplate, but the judge was entitled to conclude that Mr [T] and his family would be able to provide care if they had to.
12. There were various possible outcomes, if the appellant did not obtain leave to remain as a result of these proceedings. The alternatives contemplated in the judge's concluding paragraph [13] were:
(i) The family as a whole leaves the UK, to live long term in Gabon or elsewhere.
(ii) The appellant travels to Gabon, accompanied by the children, while she applies for entry clearance with a view to the family settling long term in the UK.
(iii) The appellant travels to Gabon, on her own, while she applies for entry clearance with a view to the family settling long term in the UK.
13. The question whether it would be reasonable to expect a child to leave the United Kingdom must, in context, ask whether it is reasonable to expect the child to leave the UK with a view to living permanently in another country. It is not the question whether it be reasonable to expect the child to make a short trip abroad, as for a holiday; almost any child may reasonably be expected to do so. Similarly, the question does not arise where it is contemplated that a person leaves the UK only for a short period, and may reasonably not be accompanied by the child.
14. The first alternative is not what the appellant and her family wishes. It presents unwelcome difficulties, although none shown to be realistically at the level of insurmountable obstacles. The judge thought that permanent relocation to Gabon would not be unreasonable. This was not realistically the determinative issue, because this choice is avoidable, but the judge's resolution of it has not been shown to have involved the making of an error on a point of law.
15. The second and third alternatives were not shown to be adverse to the best interests of the children in any significant way, or to impose any unreasonable expectation on the children. Either they need not leave at all, in which case the question does not arise; or they may do so for a relatively short and reasonable period.
16. The appellant has not shown legal error in the judge's ultimate conclusion, namely that it was not disproportionate to expect the appellant to apply from abroad.
17. The judge held further at paragraph 13 on authority of SB that he was not entitled to take into account in his proportionality assessment the appellant's apparently good prospects on application from abroad. No specific challenge was made to that finding; correctly so, as an appellant in a position to make a successful application under the rules can seldom if ever show a right under article 8 not to need to do so.
18. This does seem however to leave open a further alternative, which I briefly canvassed at the hearing. The appellant may now be in a position to make a further application accompanied by specified evidence meeting all requirements of the rules, except for the eligibility issue arising from her having entered as a visitor (and not having become an overstayer). She might choose to submit that application from within the UK, under explanation of the circumstances, with a request for its consideration without leaving the UK. That might be a rather stronger application than the one she made previously, when there was no compliance with minimum income or evidential requirements. I do not purport to advise the appellant on how to proceed, which is a matter for her and her advisers. Nor do I purport to indicate a likely outcome, or to impose a view upon the Secretary of State. However, the existence of this further possibility fortifies my view that there was no error of law in the decision of the FtT.
19. The determination of the FtT shall stand.
20. No anonymity direction has been requested or made.

21 November 2016
Upper Tribunal Judge Macleman