Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/08076/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 November 2016
On 19 December 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

MARIBEL URENA REY
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Butterworth, instructed by Bespoke Solicitors
For the Respondent: Mr Whitwell, a Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant, Maribel Urena Rey, was born on 3 March 1981 and is a citizen of the Philippines. She first entered the United Kingdom in August 2009 on a student visa. She met and subsequently married Mr Martin Sharp, a British citizen. A child (N) was born in the Philippines in February 2014. The appellant entered the United Kingdom as a visitor on 21 January 2015 bringing the child N with her. Her leave was valid until 12 July 2015. On 7 July 2015, she made an application for leave to remain in the United Kingdom on the basis of her family and private life. By a decision dated 1 October 2015, the respondent refused that application. The appellant appealed to the First-tier Tribunal (Judge Chapman) which, in a decision dated 29 June 2016, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal. I note that the appellant now has a second child (B) who was born in the United Kingdom in 2016.
2. Mr Whitwell, for the Secretary of State, acknowledged that the First-tier Tribunal had erred in law in its decision. Having dismissed the appeal under the Immigration Rules, Judge Chapman had proceeded at [51] to consider the appeal outside the Immigration Rules on Article 8 ECHR grounds. He wrote:
In doing so, I take into account all of the factors that I have referred to above. The children are not qualifying children for the purposes of the 2002 Act, but the Act limits me from attaching significant weight to the appellant's private life. In these circumstances I would find that the best interests of the two children in this appeal are outweighed by the public interest in a fair, effective and constant immigration control.
3. Both the children are British citizens. They are, therefore, "qualifying children" for the purposes of the application of Section 117 of the 2002 Act (as amended).
4. Further, at [47] the judge considered whether it would be reasonable for the children to return to the Philippines with their mother but without their father, Mr Sharp. He observed that there are "many absent fathers who have strong healthy and fulfilling relationships with their children. Mr Sharp could, in these circumstances, visit and continue to support the family financially although not perhaps as comfortable as he does now (sic)". The judge's observations appear to be at odds with the provisions of Section 117B(6) of the 2002 Act:
(6) 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.
5. The judge's reasoning has been flawed by what is either a misunderstanding of the facts of the appeal (whether the children are "qualifying children") or possibly by his misunderstanding of the statutory provisions. In any event, I find that the flaws are sufficiently serious to lead me to set aside the decision and to re-make the decision in the Upper Tribunal.
6. Mr Butterworth, for the appellant, submitted that a proper application of Section 117B(6) should lead to the Upper Tribunal allowing the appeal. The only question for determination by the Tribunal was whether it was reasonable for the British children to leave the United Kingdom. The children are "qualifying children" whilst the Secretary of State has not placed in doubt the appellant's claim to have a genuine and subsisting parental relationship with the children.
7. Both Mr Whitwell for the respondent and Mr Butterworth referred me to the relevant IDI (Appendix FM Section 1.0b: family life (as a partner or parent) and private life: ten year routes (August 2015)). The relevant Sections are [11.2.2] and [11.2.3]:
11.2.2. Is the child a British Citizen or have they lived in the UK for a continuous period of at least 7 years? The decision maker should establish from the application or claim the age and nationality of each child affected by the decision. Where the child is a foreign national, the decision maker should establish their immigration history in the UK (e.g. how long have they lived in the UK and where they lived before). In establishing whether a non-British Citizen child has lived in the UK continuously for at least the 7 years immediately preceding the date of application, the decision maker should include time spent in the UK with and without valid leave. Short periods outside the UK - for example for holidays or family visits - would not count as a break in the continuous period of at least 7 years required. However, where a child has spent more than 6 months out of the UK at any one time, this will normally count as a break in continuous residence unless any exceptional factors apply.
11.2.3. Would it be unreasonable to expect a British Citizen child to leave the UK? Save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British Citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child. This reflects the European Court of Justice judgment in Zambrano. The decision maker must consult the following guidance when assessing cases involving criminality: ? Criminality Guidance in ECHR Cases (internal) ? Criminality Guidance in ECHR Cases (external) 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. Appendix FM 1.0 Family Life (as a Partner or Parent) and Private Life: 10-Year Routes August 2015 56 In such cases it will usually be appropriate to grant leave to the parent or primary carer, to enable them to remain in the UK with the child, provided that there is satisfactory evidence of a genuine and subsisting parental relationship. It may, however, be appropriate to refuse to grant leave where the conduct of the parent or primary carer gives rise to considerations of such weight as to justify separation, if the child could otherwise stay with another parent or alternative primary carer in the UK or in the EU. The circumstances envisaged could cover amongst others: ? criminality falling below the thresholds set out in paragraph 398 of the Immigration Rules; ? a very poor immigration history, such as where the person has repeatedly and deliberately breached the Immigration Rules. In considering whether refusal may be appropriate the decision maker must consider the impact on the child of any separation. If the decision maker is minded to refuse, in circumstances where separation would be the result, this decision should normally be discussed with a senior caseworker and, where appropriate, advice may be sought from the Office of the Children's Champion on the implications for the welfare of the child, in order to inform the decision. Where the applicant has made an application under the family and/or private life Immigration Rules, the application must: a) be considered under those Immigration Rules first; b) where the applicant falls for refusal, the decision maker must go on to consider whether there are any exceptional circumstances that would warrant a grant of leave to remain outside the Immigration Rules; and c) where the applicant falls for refusal under the Immigration Rules and there are no exceptional circumstances, and where satisfactory evidence has been provided that all of the following criteria are met, the case must be referred to European Casework for review: i. the child is under the age of 18; and ii. the child is a British Citizen; and iii. the primary carer (care responsibilities and court orders are examples of evidence) of the child is a non-EEA national in the UK; and iv. there is no other parent/guardian/carer upon whom the child is dependent or who could care for the child if the primary carer left the UK to go to a country outside the EU. The originating decision maker should not issue a decision on the Immigration Rules application whilst awaiting this Zambrano decision. The originating decision maker must not grant leave outside the Rules because they believe the applicant has a Zambrano right, but must instead always refer the case to European Casework for them to review and determine the case under EU law if the criteria above are met. Appendix FM 1.0 Family Life (as a Partner or Parent) and Private Life: 10-Year Routes August 2015 57 European Casework will decide whether or not the person has established a right to reside in the UK under EU law, and will notify the originating decision maker of that decision. European Casework will then return the case file to the originating decision maker. The originating decision maker must then serve the Zambrano decision on the applicant, together with the decision on the original application under the Immigration Rules. In cases where a decision to refuse the application would require a parent or primary carer to return to a country within the EU, it may be possible to require the child to return or go there with that person. However, consideration must still be given to whether it would be reasonable to expect the child to leave the UK.
Mr Butterworth also relied upon Sanade (British children - Zambrano - Dereci) [2012] UKUT 0048 (IAC):
Where in the context of Article 8 one parent ("the remaining parent") of a British citizen child is also a British citizen (or cannot be removed as a family member or in their own right), the removal of the other parent does not mean that either the child or the remaining parent will be required to leave, thereby infringing the Zambrano principle, see C-256/11 Murat Dereci. The critical question is whether the child is dependent on the parent being removed for the exercise of his Union right of residence and whether removal of that parent will deprive the child of the effective exercise of residence in the United Kingdom or elsewhere in the Union.
8. He also referred to Treebhawon and Others (Section 117B(6)) [2015] UKUT 00674 (IAC). The Upper Tribunal had considered the "discrete regime" imposed by Section 117B(6) and found that "where these three conditions are satisfied the public interest does not require the removal of the parent from the United Kingdom. Ambiguity there is none".
9. I accept the guidance provided by the Upper Tribunal in Treebhawon; there was no need to determine the public interest where Section 117B(6) applies; it is enough to apply the statutory provision. What remains, therefore, having determined on the facts that the first two conditions of section 117B(6) are met, is an assessment of the reasonableness of expecting a qualifying child to leave the United Kingdom. In that assessment, the contents of the respondent's IDI (see above) would appear to be engaged; decision makers are informed that it is "not reasonable to take a decision in relation to a parent or primary carer of a British citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child". The IDI goes on to record that "save in cases involving criminality" the decision maker should not take a decision which would involve the British citizen child leaving the United Kingdom. However, as Mr Whitwell pointed out, the conduct of the parent or primary carer may, according to the IDI, give rise to "consideration of such weight such as to justify separation. The child could otherwise stay with another parent or alternative primary carer in the UK or in the EU". I did not receive any evidence concerning the ability of Mr Sharp to care for a very young baby (B). Further, by reference to a non-exhaustive list of circumstances which might justify separation, the IDI cites instances of criminality and "a very poor immigration history, such as where the person has repeatedly and deliberately breached the Immigration Rules". Criminality does not arise in the present case but Mr Whitwell suggested to me that my assessment of reasonableness should be informed by the poor immigration history of the appellant.
10. Decision makers are required to take into account all the circumstances in a given case when determining reasonableness (see, in particular, MM (Uganda) [2016] EWCA Civ 617). Whilst I accept that the respondent's IDI, which I have quoted above, does not seek to set out an exhaustive list of circumstances (in particular as regards the conduct of an appellant) which should inform the assessment, the present appellant, while she may (as the First-tier Tribunal Judge found) have brought problems upon herself by her own somewhat eccentric engagement with the United Kingdom immigration system, can hardly be described as having a "very poor" immigration history. It is indeed puzzling that the appellant did not seek a more permanent form of leave when she applied to return to the United Kingdom with her child. By applying as a visitor and then, before her leave expired, seeking to convert to more substantial leave on the basis of private and family life, she immediately excluded herself from entitlement to remain under parts of the Immigration Rules (see, for example, Appendix FM E-LTRPT.3.1). I do not find, however, that such conduct, whilst difficult to explain, can properly be described as having produced a "very poor immigration history". It is difficult to escape the conclusion that a proper application of Section 117B(6) should lead me to conclude that the public interest requires the removal of the mother of two very young British citizen children. In the circumstances, and having regard to all the relevant facts, I have concluded that the appeal should be allowed on Article 8 ECHR grounds. Separation from her children would, in my assessment, cause the appellant significant disruption in her family and private life whilst, for the reasons which I have stated above, the public interest as expressed in the terms of Section 117B(6) of the 2002 Act does not outweigh that interference. Accordingly, the appeal is allowed.

Notice of Decision
11. The decision of the First-tier Tribunal dated 29 June 2016 is set aside. I have re-made the decision. The appeal is allowed on human rights grounds (Article 8 ECHR).

No anonymity direction is made.

Signed Date 10 December 2016

Upper Tribunal Judge Clive Lane