Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/07784/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 6 April 2017
On 10 April 2017

Before

DR H H STOREY, JUDGE OF THE UPPER TRIBUNAL

Between

MR MONSEGUEHA POTEY

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr P Turner, Counsel
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND DIRECTIONS

1. On 4 January 2017, I found that First tier Tribunal Judge Bell had made an error of law and set his decision aside. I directed that the case be adjourned to be heard in the Upper Tribunal. I confirmed that at the hearing to re-make the decision I would take into account the Family Court final order of 19 May 2016. I noted that neither party had been able to provide me with precise particulars of the appellant’s immigration history.

2. Prior to the hearing the appellant’s representatives submitted a further witness statement from the appellant and a statement of his immigration history.

3. . At the hearing Mr Kotas submitted the Immigration History held by the Home Office. Both histories broadly corresponded.

4. I heard from the appellant. He confirmed that his witness statement of 20 March 2017 was true and correct. He produced a letter dated 30 March 2017 from the Primary School attended by his three children, confirming that within the last and current academic year the appellant had attended parent consultation meeting, either by himself or accompanied by his former partner. It stated that the appellant had also attended Christmas production and that recently the appellant had arranged to meet the children and their mother at the school on the Friday afternoon of his contact session, to collect the children.

5. The appellant produced a large number of photos showing him with the children over the past two years. He stated that he following the contact order he has access to his children on a fortnightly basis. On the basis of a voluntary agreement between him and his former partner (the mother of the children), this is now Friday late afternoon to Sunday. During the period when the children are with him they stay at the house he shares with his sister. As a result of a request from the Family Court he has purchased bed mats and toys for the children. Mr Kotas did not seek to cross-examine the witness.

6. Mr Turner submitted that the appellant met the requirements of the Immigration Rules and had provided evidence of taking an active role in the upbringing of his three children. Mr Kotas stated that having considered the case in the light of the further evidence, the respondent did not dispute that the appellant met the requirements of the Immigration Rules. He made reference to paras E-LTRPT.2.3-4 of Appendix FM of the Immigration Rules.

7. Having considered the evidence in light of the parties’ submission and Mr Kotas’s concession that the appellant meets the relevant requirements of the Immigration Rules governing limited leave as a parent, the decision I re-make is to allow the appellant’s appeal. It is not in dispute that the appellant has access rights to his chidden. The only area of factual uncertainty that Mr Kotas considered was in need of clarification relates to whether or not the appellant has provided evidence that he is taking an active role in the upbringing of the children, as required by E-LTRPT.2.4 (b). On the basis of the further evidence, including the appellant’s oral testimony given today, Mr Kotas declared himself satisfied that the appellant had shown he met that requirement.

8. . The appellant’s ability to meet the requirements of the Immigration Rules is not in itself sufficient to warrant a decision to allow his appeal, as his only ground of appeal is that the decision to refuse him limited leave to remain as a parent is unlawful under s.6 of the Human Rights Act 1998. However, where there is an acceptance by the Secretary of State (as is the case here by way of Mr Kotas’ concession) that the relevant Immigration Rules are met, there is no discernible public interest factors to be weighed against the appellant’s right to respect for private and family life. Further, the Respondnt saw fit on previous occasions to grant the appellant leave on the basis of his relationship with his children and most recently for the purposes of establishing the outcome of court proceedings regarding child contact. Mr Kotas has stated that the Respondent is satisfied that the appellant is entitled to continue his stay in order to have access to his children and to exercise an active role in their upbringing

9. For the above reasons the decision I re-make is to allow the appellant’s appeal on Article 8 grounds.

Dr H H Storey
Judge of the Uppeer Tribunal

Signed Date: 6 April 2017