Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/07347/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision Promulgated
On 6 December 2016
On 7 December 2016

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

AS
(ANNONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Farrell (Counsel)
For the Respondent: Mr McVeety (Senior Home Office Presenting Officer)

DECISION AND REASONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant in this determination identified as AS.

1. I have made an anonymity order because this decision refers to the appellant's two minor children and their circumstances.

2. This is an appeal by the appellant against a decision of the First-tier Tribunal ('FTT') dated 21 January 2016, in which it dismissed his appeal against the respondent's decision dated 18 September 2015 to refuse him leave to remain.

Background

3. The appellant is a citizen of the USA. He arrived in the UK on 25 April 2015 as a visitor. On 13 July 2015 he made an application to remain in the UK on the basis of his family life in the UK. His wife, who he married in 2009, is a British citizen. They have two children: a daughter, H, who was born in Senegal in 2006 but has been residing in the UK since 2007; and a son, M, born in 2012 in the UK. Mr McVeety clarified that the respondent accepts both children to be British citizens.

FTT decision

4. The FTT decided that the appellant could not meet the Immigration Rules. As the FTT noted, any application to remain pursuant to the Rules was bound to fail in light of paragraph E-LTRP.2.1 (para 12).

5. The FTT then considered Article 8 briefly (para 18) before concluding that the appellant could return to the USA to apply for entry clearance and the period of separation to enable him to do so could be described as compelling circumstances justifying a consideration of Article 8 outside the Rules. The First-tier Tribunal went on to find that the appellant's return to the USA to apply for entry clearance, leaving his wife and children in the UK would not be disproportionate (para 19).

Issues arising

6. The appellant sought permission to appeal in relation to Article 8 only. When granting permission Judge Brunnen was unimpressed with the grounds of appeal and granted permission on the basis of an obvious point overlooked by the grounds: the FTT failed to have regard to section 117B(6) contained in Part 5A of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act').

Error of law

7. At the beginning of the hearing both representatives agreed that as the relevant application and decision postdated 7 April 2015, any appeal could only be brought on human rights grounds following the implementation of section 15 of the Immigration Act 2014. Ms Farrell clarified that she only sought to appeal against the FTT's decision regarding Article 8 in any event.

8. Both representatives agreed that the FTT's Article 8 assessment contains a material error of law such that it must be set aside and remade.

9. In Bossade (Sections 117A - D: inter-relationship with Rules) [2015] UKUT 415 (IAC), the Upper Tribunal considered the interplay between Part 5A and the Rules. It was held that, ordinarily, it will be appropriate for the Tribunal to first consider an appellant's Article 8 claim by reference to the Rules. This exercise will entail determining whether the relevant substantive conditions are satisfied by the person concerned. Part 5A has no role in this discrete process. Rather, the Part 5A regime is engaged only if the Tribunal finds that the impugned measure interferes with a person's right to respect to private or family life, thereby requiring examination and determination of the question of whether such interference is proportionate.

10. Although the FTT did not clearly find an interference with family life, this is implicit from reading the decision as a whole. After all, the FTT clearly accepted the family life between the appellant and his children (which was not in dispute and expressly accepted by the respondent in the decision letter) and this shall plainly be interfered with once the appellant returns to the USA. The FTT was therefore obliged to turn to proportionality and in doing so consider and apply the Part 5A regime. This approach is supported by the reasoning of the Supreme Court in Hasham Ali v SSHD [2016] UKSC 60. At [17] and [53] Lord Reed emphasised that the Immigration Rules are not law and do not govern the determination of appeals. The policies adopted by the respondent and given effect by the Rules are nevertheless a relevant and important consideration for tribunals determining appeals brought on Convention grounds. It remains for tribunals to judge whether on the facts as they have found them, and giving due weight to the public interest, the factors on the other side lead to the conclusion that deportation would be disproportionate. Although Hasham Ali is a case concerning deportation its reasoning regarding the proper approach to the Immigration Rules and Article 8 is instructive in the non-deportation context as well.

11. In any event, as both representatives before me accepted, in finding an absence of compelling circumstances justifying a consideration of Article 8, the FTT has erred in law in failing to direct itself to relevant considerations: how the best interests of the children may be adversely affected if their father leaves the UK (having been living with them since April 2015); the impact of even a temporary cessation of family life upon the children; and the likely length of the interference with family life.

12. Section 117B(6) of Part 5A of the 2002 Act 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 United Kingdom."

13. It is clear from paras 16 and 17 of the FTT decision that the appellant's claimed genuine and subsisting parental relationship with his two British citizen (and therefore "qualifying") children is not disputed.

14. The FTT has not directed itself to the 2002 Act at all when section 117B(6) was clearly potentially applicable.

Re-making the decision

15. By paragraph 7.2 of the relevant practice statement for appeals on or after 25 September 2012, I must be satisfied that:

"the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2 it is appropriate to remit the case to the First-tier Tribunal."

16. Ms Farrell invited me to remit the appeal to the FTT for fresh findings of fact to be made regarding in particular the impact of the appellant's return to the USA on the children. No findings have ever been made regarding this. Mr McVeety agreed that this was the appropriate course in this case. In all the circumstances I am satisfied that it is proportionate to remit the case to the FTT. This is because there needs to be comprehensive findings of fact made regarding the best interests of the children in the particular context of this case.

17. No doubt the FTT shall take into account Lord Thomas's guidance regarding the importance of the structure of decisions where Article 8 is engaged and the utility of employing the "balance sheet approach" i.e. after setting out all the relevant factual findings, the "pros" and "cons" can be set out followed by reasoned conclusions as to whether countervailing factors outweigh the public interest in maintaining effective immigration controls. Of course in doing so express consideration must be given to the section 117B(6) of the 2002 Act factors.
Decision
18. The decision of the FTT involved the making of a material error of law and I set it aside.

19. The matter shall be remade by the FTT.

Directions

(1) The matter shall be listed on the first available date before the FTT with a time estimate of 2 hrs.
(2) The appellant's solicitors shall file and serve a skeleton argument outlining the applicable legal framework and the evidence relied upon with page references to the appellant's bundle, 28 days before the hearing.
(3) The respondent shall file and serve a skeleton argument or outline of her position in response, 14 days before the hearing.

Signed:
Ms M. Plimmer
Judge of the Upper Tribunal

Date:
6 December 2016