Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/07816/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 18th August, 2016
On 30th August 2016

Before

Upper Tribunal Judge Chalkley

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Hajrah Bibi
(NO ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr M Diwncyz, a Senior Home Office Presenting Officer
For the Respondent: Mr J Marcus of Counsel

DECISION AND REASONS

1. In this appeal the appellant is the Secretary of State for the Home Department and to avoid confusion I shall refer to her as being, "the claimant". The respondent is a citizen of Pakistan born on 28th September, 1971 and who on 10th September, 2013 entered the United Kingdom on a multiple entry visit visa valid for 24 months from 22nd July, 2013 to 22nd July, 2015.

2. On 25th October, 2015, the respondent applied for leave to remain as a partner (ten year route), but was refused on eligibility grounds. The appeal was heard on 18th March, 2014 and First-tier Tribunal Judge Saffer ("the first judge") dismissed the appeal in a decision promulgated on 20th March, 2014. The respondent's appeal rights then became exhausted.

3. The respondent made a further application on 30th July, 2015, this time on the basis of her family and private life rights and on compassionate grounds under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. On 28th September, 2015, the claimant made a decision to refuse the respondent's human rights claim and to refuse her leave to remain in the United Kingdom. The claimant provided detailed reasons for the decision in a letter dated 28th September, 2015 ("the refusal letter").

4. The claimant was satisfied that the respondent had not shown that there were insurmountable obstacles as to why his family could not continue family life in Pakistan. The claimant was not satisfied that EX.1 applied and concluded that the respondent did not meet the requirements of R-LTRP.1.1(d). The respondent appealed and her appeal was heard at Bradford on 17th December, 2015 by First-tier Tribunal Judge Buster Cox. The judge noted that the appellant had married some 25 years earlier and had four children. The youngest child, Umar Khan, was born on 3rd May, 2002. He was found to have two holes in his heart following his birth and his early life was blighted with poor health.

5. The respondent and her family lived in Pakistan until coming to the UK in September, 2013. They had lived, it was claimed, with the respondent's in-laws until a year before coming to the UK. The respondent's husband's parents had been helping to support the family, but forced them to leave the home because of her husband's gambling which had also led to the respondent's husband "falling out" with his relatives. The respondent and her family went to stay with a friend but the friend was unable to provide long-term support and the respondent's husband found it difficult to find work.

6. The respondent and her family decided to come to the UK and arrived in September, 2013. Since then the respondent's husband has had some work.

7. In March, 2014 Umar underwent a heart operation which was successful. The respondent maintained that she had nowhere to live in Pakistan and no family to support her. She maintained that she was Umar's primary carer and that he is wholly dependent upon her.

8. The judge noted that the claimant accepted that Umar is a British citizen and that the respondent has a genuine and subsisting relationship with him. The representatives agreed with the judge that the sole issue for him to determine was whether or not it would be reasonable to expect Umar to leave the UK. The judge noted that the respondent's original appeal was dismissed in March, 2014 and he applied Devaseelan* [2013] UKIAT 702 and concluded that the first judge's determination was the starting point for his determination.

9. Judge Cox heard oral evidence from the respondent's husband and from the respondent. He found that the respondent had still not provided cogent or satisfactory evidence of her circumstances in Pakistan and that he had no reason to go behind the first judge's findings. For reasons given by the first judge, Judge Cox was not satisfied that the respondent's circumstances in Pakistan were as they had been claimed to be.

10. Judge Cox noted what the first judge said about the respondent's children. He noted a report from an independent social worker and considered Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 197 (IAC). The judge agreed with the first judge that Umar's best interests are that he remains with his parents, but that does not necessarily mean that this should be in the United Kingdom. He noted the contents of Umar's witness statement and the evidence of Ann Buckley and noted that the appellant's children were British. At paragraph 45 the judge noted that the representatives had agreed that although the respondent is not seeking to compel Umar to leave the United Kingdom, it is for the judge to determine whether in reality he would be compelled to leave the EU and return to Pakistan with the appellant if she returned. He reminded himself of the claimant's current policy guidance:-
"'Appendix FM Section 1.0 Family Life (as a Partner or Parent) and Private Life: 10-Year Routes' (August 2015) expressly recognises that, 'where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case must always be assessed on the basis that it would be unreasonable to expect a British Citizen child to leave the EU with that parent or primary carer' (paragraph 11.2.3)."
11. The judge acknowledged that the appeal was difficult to determine and noted that the first judge had found that the respondent had shown blatant disregard for UK immigration law. In the view of Judge Cox this weighed heavily against her and he attached no weight to her evidence. However, at paragraph 49 of his determination he said this:-
"Nevertheless, on balance I am satisfied that although Umar is not being compelled to leave the UK, if the appellant is required to leave the UK, then he will leave with her. I have had the benefit of Umar's written evidence and evidence from an independent social worker. Although I have reservations about some aspects of Ann Buckley's report, i.e. where she has commented on the family's circumstances in Pakistan, I am satisfied that I should attach weight to her assessment of the appellant's relationship with Umar. I do not doubt that as Umar's early years would have been blighted with poor health, the [respondent], as his mother, would have taken a special interest in him and inevitably they would have developed a very close relationship."
The judge found no reason to question Umar's evidence and attached weight to his wishes. On the totality of the evidence he found that the respondent is Umar's primary carer and was satisfied that the respondent's removal would be contrary to Umar's genuine enjoyment of the subsistence of the rights attached to his status of European citizen. He found it would not be reasonable to expect Umar to leave the UK and was satisfied that the appellant met the requirements of EX.1(b). Accordingly he found that the respondent met the requirements of R-LTRP1.1 and that the claimant's decision was not in accordance with the Immigration Rules and law. He allowed the appeal.

12. Dissatisfied with the judge's decision, the claimant challenged the decision asserting that it showed that the judge had erred. Having found that Umar is not being compelled to leave the United Kingdom, the judge found at paragraph 51 that the respondent's removal would be contrary to Umar's genuine enjoyment of the substance of the rights attached to his status as an EU citizen. He then found that it would not be reasonable to expect Umar to leave the UK. It was suggested that these were contradictory findings and that the judge had conflated the reasonableness test and the compelled test under EU law.

13. For the claimant, Mr Diwncyz told me that other than the grounds, he had no papers because the Home Office file had been destroyed in a flood suffered by the Home Office.

14. For the respondent Mr Marcus suggested that the judge had properly identified the issues and recorded the fact that the representatives had agreed with the judge that the sole issue for him to determine would be whether or not it would be reasonable to expect Umar to leave the UK and the judge has not made any conflicting finding.

15 At paragraph 49 of the determination, Judge Cox was satisfied that although Umar is not compelled to leave the UK, he would leave with the respondent if the respondent were required to leave and that the two of them had developed a very close relationship. He found, at paragraph 51 that the respondent was Umar's primary carer and as such Home Office policy requires that the case must be assessed on the basis that it would be unreasonable to expect a British child to leave the EU with a parent or primary carer; the claimant's decision was contrary to her own policy.

16. Mr Diwncyz, responding on behalf of the claimant, apologised again for having little evidence before him. He pointed out that it had not been accepted by the claimant that the respondent was the primary carer. I reserved my determination.

17. I do not believe that in making his decision First-tier Tribunal Judge Buster Cox has erred in law.

18. It seems to me to be quite clear from the determination that he very carefully considered all the evidence placed before him. He clearly found it distasteful that the respondent had shown blatant disregard for UK immigration laws, but on the evidence found that she and Umar had developed a very close relationship and was Umar's primary carer.

19. The judge made findings which were clearly open to him to make on the evidence before him. He was clearly aware that Umar was a British citizen and that were the respondent to leave the United Kingdom, Umar would leave with the respondent, because she is his primary carer and they have such a close relationship. I do not accept that the judge has conflated the reasonable test considered by the first judge and the compelled test under EU law as set out in paragraphs 76 and 77 of Secretary of State for the Home Department v AQ (Nigeria) & Ors [2015] EWCA Civ 250. The judge was clearly aware of Home Office policy and the fact that it had not been applied in this case.

20. First-tier Tribunal Judge Buster Cox did not make any error of law and his decision shall stand.

Notice of Decision

The decision of First Tier Tribunal Judge Cox shall stand.

Richard Chalkley

Upper Tribunal Judge Chalkley
Date: 30th August 2016