Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/08010/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5th December 2016
28th December 2016

Before

DEPUTY UPPER TRIBUnAL JUDGE SAFFER

Between

lakhvir singh
(anonymity direction NOT MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms Sidhu of Counsel
For the Respondent: Mr S Armstrong, Home Office Presenting Officer

DECISION AND REASONS
Background
1. The Respondent refused the Appellant's application for leave to remain on the basis of her private and family life on 1st October 2015. He is a citizen of India who was born on 6th January 1973 and is 43 years old. He was required to leave the United Kingdom.
2. His appeal was dismissed by First-tier Tribunal Judge Chapman ("the judge") following a hearing on 29th June 2016.
The Grant of Permission
3. First-tier Tribunal Judge Nightingale granted permission to appeal (20th October 2016). She said that it is arguable that having found that Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 had been established, it is arguable that the judge erred in dismissing the appeal. The other grounds too are arguable and permission was granted on all grounds.
Respondent's Position
4. In the reply notice (17th November 2016) it is said that although not very well expressed, the judge has all the guidance set out in MA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 705. This makes it clear that Section 117B(6) involves consideration of a wide range of factors.
Appellant's Position
5. Section 117B(6) is determinative of the public interest assessment within Article 8. The Appellant has a closer relationship with the child for whom he cares than the child's father and stepmother, and the judge has failed to properly consider the impact on the child of the Appellant being removed. The Appellant has a subsisting parental relationship with the child and the judge has speculated as to future integration with the child's stepmother. The judge's observation that removal of the Appellant should be delayed to enable an adjustment period undermines the conclusion regarding proportionality. It was orally submitted that the difference between this case and MA is that here the child concerned is a British citizen and it would not be reasonable for this child to leave the United Kingdom given the particular circumstances of the child's health. The best interests of that child had not been properly considered given the Appellant is the one who fulfils the role of the mother. It was irrational for the judge to say that a period of time to adjust should precede removal while at the same time he is saying that removal was proportionate.
Respondent's Position
6. The judge heard all the evidence and made findings open to him. The Appellant's adverse immigration history of having stayed here for nine years as an overstayer and not being the parent of the child were relevant factors.
Judge's Determination
7. It was found in the determination that:
[48] The Appellant has played and continues to play a significant role in the life of P in the way described in the evidence. He has done so for much of P's life, and certainly since his mother finally removed herself from the family in 2011. He has effectively under taken the role in the family that she would have played.
[49] This has continued since the arrival of the stepmother. Her efforts to take over that role have been unsuccessful. The Appellant enjoys a special, close relationship with P which the stepmother has been unable to penetrate.
[50] I must not look into the future.
[52] I find that the Appellant has a genuine and subsisting parental relationship with P, and that, therefore Section 117B(6) applies.
[54] Section 117B(6) is not the whole of the proportionality exercise I must conduct. It does not preclude other considerations.
[57] It may take time for the stepmother to integrate into the family as his mother and it may not be easy particularly because of the disabilities from which P suffers and because of his attachment to the Appellant. In the short term it might not be P's preference, but even with the difficulties he has, I do not see it as a change he cannot adapt to, without the Appellant's support. His stepmother is clearly able and willing to offer him the love, care and affection which the Appellant currently offers, and it will alleviate some of the practical difficulties currently faced by the family.
[58] P's best interests are served by him being given the opportunity to integrate more fully with his immediate family members in a normal family unit, namely with Mrs Nandha and his half brother.
[59] The Appellant was a successful businessman in India and has good DIY skills and having come here in his late 20s was well-versed in Indian culture and society. There are no very significant or insurmountable obstacles to him reintegrating into Indian society.
[60] He has now been in the United Kingdom illegally for many years. He has established a worthy private life particularly with regard to P and connected his life around the temple but I attach little weight to it having regard to Section 117B(5).
Discussion
8. MA directs 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 accept that the judge did take into account the adverse immigration history of the Appellant. It is clear that the judge has speculated as to what may happen in the future regarding P's stepmother's integration into the family. Having guided himself not to speculate [50] he went on to do so [56]-[57]. I am satisfied that in doing so he materially erred in law because as at the date of the hearing the Appellant was acting as the mother of the disabled child P and that was the reality of the position. The fact that somebody else may at some point take over was immaterial and the judge erred by considering that. This was plainly a situation where it would not be reasonable to expect the child to leave the United Kingdom given his disability and, in taking into account a factor that the judge was not entitled to, the judge was not in a position to conclude that it was in the child's best interests to be able to integrate into his family with his stepmother.
10. In addition, I am satisfied that the conclusion by the judge that an adjustment period was required flies in the face of the conclusion that it was proportionate to require the Appellant to leave the United Kingdom.
11. I am satisfied in those circumstances that the judge materially erred in both respects and I set aside the decision. Both representatives agreed that if I found a material error of law it was not appropriate for me to remit the matter to the First-tier Tribunal because I had sufficient facts to enable me to determine the appeal. I agree with them.
Re-making the Decision
12. Given the findings that have been made of the unique role played by the Appellant in the child's life and the current circumstances of the family with that pivotal role being played by him, despite his adverse immigration history, and despite the fact that at some point in the future a new family dynamic may emerge, I am satisfied that the public interest does not require the Appellant's removal from the United Kingdom and that the child's best interests currently can only be assessed on the basis of the current position. It is entirely a matter for the Secretary of State the length of time for which leave to remain is granted and it may be at some point in the future that the family dynamic will have changed. However, as at the date the judge considered the decision and indeed as at today's date, I am satisfied that this appeal should be allowed for the reasons I have given.
Decision
13. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
14. I set aside the decision.
15. I allow the appeal.

No anonymity direction is made.

Signed Date 23 December 2016
Deputy Upper Tribunal Judge Saffer