Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/08951/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 11 January 2017
On 17 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

Secretary of state for the home department
Appellant
and

MR MOHAMMED SHAHID
(anonymity direction not made)
Respondent/Claimant

Representation:
For the Appellant: Mr D Mills, Specialist Appeals Team
For the Respondent: Mr H Sarwar, Counsel

DECISION AND REASONS
1. The Secretary of State has appealed from the decision of the First-tier Tribunal (Judge Caroline Andrew sitting Sheldon Court, Birmingham on 1 July 2016) whereby the Tribunal allowed the claimant's human rights claim outside the Rules, on the basis that section 117B(6) of the 2002 Act made it clear that it was not in the public interest to require his removal in circumstances where he had a genuine and subsisting step-parental relationship with seven British national children, and it would not be reasonable to expect the British national children to leave the United Kingdom with their mother, his partner, to continue family life in Pakistan. The First-tier Tribunal has not made an anonymity direction, and I do not consider that the claimant or his family members require anonymity for these proceedings in the Upper Tribunal.
The Application for Permission to Appeal to the Upper Tribunal
2. Seb Kandola settled the SSHD's application for permission to appeal to the Upper Tribunal. He said the First-tier Tribunal Judge had allowed the appeal because the claimant had been step-father to seven British children for 18 months. She had allowed the appeal on the erroneous basis that the section 117B(6) was a stand-alone provision. She had failed to follow the Court of Appeal decision in MA (Pakistan) [2016] EWCA Civ at paragraph [45], which stated that section 117B(6) was not a stand-alone provision, and required judges to undertake an holistic assessment. Accordingly, the Judge failed to have any or any adequate regard to the following matters, which fell within section 117B(6) and Article 8, namely that:
i. The claimant arrived in the UK in October 2011 as a student and only had 14 months of lawful leave. The majority of his stay in the UK has been unlawful;
ii. The claimant is not married to the mother of the British children, but had an Islamic wedding 18 months ago;
iii. The claimant admits gaining leave to remain by deception using a false TOEIC certificate;
iv. There is no evidence that the claimant can speak English;
v. There is no evidence that the claimant would not be a burden on the state financially - his partner is on benefits and there is no evidence that he is capable of working in the UK or being financially independent;
vi. The claimant failed to meet the Immigration Rules to join his partner under Appendix FM - there has been no regard to his failure to meet the Rules;
vii. There has been no regard or assessment of his ability to gain entry clearance to rejoin his partner.
3. If the Judge had directed herself in law correctly, and she had had regard to the plethora of public interest factors in favour of removal, she would have found that this is not a case that just tips the balance in favour of the claimant, as she held at paragraph [31], but that removal was overwhelmingly justified on the facts of the case.
The Reasons for the Grant of Permission to Appeal
4. On 2 November 2016 Designated Judge Shaerf granted the SSHD permission to appeal, as he was satisfied that the grounds of appeal were arguable. He noted that the judgment in MA (Pakistan) had been handed down six days after the Judge had heard the appeal. It was arguable that in not having the benefit of this latest judgment in the Court of Appeal, the Judge had erred through no fault of her own in her treatment of the section 117B factors. In addition, while the Judge addressed the factors referred to in section 117B(6), she did not proceed further to consider whether she needed to address Article 8: see SSHD -v- SS (Congo) [2015] EWCA Civ 387. This was also an arguable error of Law.
Discussion
5. The Judge was alive to many of the proportionality issues raised by Mr Kandola in the application for permission to appeal, but she clearly regarded herself as fettered in her discretion. The pivotal part of her decision is at paragraphs [23] and [24]. At paragraph [23] she said that in coming to her decision, she had taken into account the guidance in Treebhawon and Others (Section 117B) [2015] UKUT 674 (IEC). This authority is arguably per incuriam in the light of the authoritative analysis of Section 117B(6) subsequently given by the Court of Appeal in MA (Pakistan).
6. The Judge continued in paragraph [24]:
I say now that, had the [claimant] simply been married to his British citizen wife I would have had no hesitation in saying that he should return to Pakistan and make an application for entry clearance to return to the United Kingdom as the spouse of a British citizen. However, in this case I have to take account of the fact that there are seven British citizen children involved?
7. The Judge went on to find that the claimant had established a genuine and subsisting parental relationship with his stepchildren. At paragraph [27] she said she had to consider therefore whether it would reasonable to expect these children to leave the United Kingdom. They would only leave the United Kingdom with their mother to join the claimant in Pakistan:
However, in accordance with the Secretary of State's own guidance any case must be assessed on the basis that it would be unreasonable to expect a British citizen child to leave the EU with his or her parent.
8. The judge acknowledged that the policy had qualifications, but she found that the claimant did not fall within them. He did not have a very poor immigration history. As the claimant was now a huge part of their lives, his deportation would be a devastating blow to Aamana and her siblings, as well as making a huge impact on their life and family unit. So, the Judge held at paragraph [31] that this all led her to find that the balance just tipped in favour of the claimant, taking into account the particular facts of the case. At paragraph [32] she noted that there was nothing to indicate that the claimant spoke English, but she noted that there was an offer of employment for him. At paragraph [33] she said that, however, section 117B(6) made it clear that it was not in the public interest to require a person's removal where he had a genuine and subsisting parental relationship with a qualifying child, and it would not be reasonable expect the child to leave the UK. It was for that reason that she was allowing the claimant's appeal.
9. This Judge erred in her application of section 117B(6) and in her application of the policy guidance. She did not have the benefit of the decision of the Court of Appeal in MA (Pakistan) when she made her decision, but the law always speaks.
10. All the cases under discussion in MA are seven year rule cases. None of them relate to British national children. However, it is apparent from a careful reading of the leading judgment of Elias LJ that the general guidance which he gives about the proper approach to section 117B(6) is just as applicable to children who are qualifying children by virtue of being British nationals as it is to children who are qualifying children under the statute by virtue of having accrued seven years' continuous residence in the UK.
11. The contention of Counsel for the appellants in MA was that section 117B(6) should be construed narrowly. Ms Giovannetti on behalf of the SSHD strongly disputed this.
12. At paragraph [35] Elias LJ records her submission that if the appellants were right, section 117B(6) would have to be construed in essentially the same way as the rejected policy known as DP5/96. It would allow those who had unlawfully remained in the UK to take advantage of the seven year rule. The concept of a qualifying child also included a child who is a British citizen - that being a very important factor for the Court to take into account when having regard to the child's best interests:
Ms Giovannetti suggested that it would be relatively rare for it to be reasonable to expect a child who is a British citizen to leave the UK, and so the consequence of the appellant's approach would be to allow many applicant parents who have unjustifiably and unlawfully stayed in the UK to remain here by clinging to the coat-tails of the child.
13. At paragraph [37] Elias LJ held that Mr Giovannetti's analysis had a number of difficulties. The first was that it meant that the only effect of sub-section 117B(6) would be to give some additional weight to the fact that the child has been resident in the UK for seven years:
(Similarly, it would require the Court to give additional weight to the fact that the child is a British citizen, although that would need to be done quite irrespective of this section, as ZH makes clear.) Save for that, the proportionality test is applied as in any other Article 8 case (my emphasis). If that is right, section 117B(6) is, in my view, drafted in an extremely convoluted way to achieve so limited an aim. The objective could have been achieved much more clearly and succinctly.
14. The crucial point for present purposes is that, notwithstanding the difficulties in Ms Giovannetti's analysis, in the end Elias LJ at paragraph [45] decided that she was right in her construction of how section 117B(6) operated, and should operate, having regard to the Court of Appeal decision in MM (Uganda). The judge thus concluded, at the end of paragraph [45], as follows:
Accordingly, in line with the approach in that case, I will analyse the appeals on the basis that the Secretary of State's submission on this point is correct, and that the only significance of section 117B(6) is that where the seven year rule is satisfied, it is a factor of some weight leaning in favour of leave to remain being granted.
15. By a parity of reasoning, where the child qualifies on the additional or alternative basis that he or she is a British national child, this is a factor of some weight leaning in favour of leave to remain being granted to the irregular migrant, but it is not a decisive factor.
16. Elias LJ held that Section 117B(6) is a stand-alone provision: see [19]. But he also held that in answering the question of whether it is reasonable to expect a qualifying child to leave the UK it is necessary for the decision-maker to conduct an holistic assessment which embraces the full panoply of "wider public interest considerations", including those not mentioned in Sections 117B(2)-(5). This is evident from the fact that he cited with approval at [48] the guidance on this topic given by Clarke LJ in EV (Phillipines) including the following passage at [35]:
A decision as to what is in the best interests of children will depend on a number of factors such as (a) their age; (b) the length of time that they have been here; (c) how long they have been in education; (c) what stage their education has reached; (d) to what extent they have become distanced from the country to which it is proposed that they return; (e) how renewable their connection with it may be; (f) to what extent they will have linguistic, medical or other difficulties in adapting to life in that country; and (g) the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens (my emphasis).
17. The significance of the highlighted passage is that the rights of a British national child are not determinative of the question whether relocation is contrary to their best interests, particularly where (as here) what is in contemplation is the relocation of the children with both active parents (the appellant and his partner), and the children are not going to be separated from a third parent with whom they have a genuine and subsisting relationship.
18. At [36] Clarke LJ said that if it is overwhelmingly in the child's best interests to remain, the need to maintain immigration control may well not tip the balance. By contrast if it is in the child's best interests to remain, but only on balance (with some factors pointing the other way), the result may be the opposite. Clarke LJ continued in [37]:
In the balance on the other side there falls to be taken into account the strong weight to be given to the need to maintain immigration control in pursuit of the economic well-being of the country and the fact that, ex hypothesi, the applicants have no entitlement to remain. The immigration history of the parents may also be relevant e.g. if they are overstayers, or have acted deceitfully.
19. The IDI on family migration ("the IDI") contains at paragraph 11.2.3 guidance on answering the following question: "Would it be unreasonable to expect a British citizen child to leave the UK?" The IDI provides, inter alia, as follows:
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 citizen to leave the EU, regardless of the age of that child. This reflects the European Court of Justice Judgment in Zambrano ?..
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.
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 a child could otherwise stay with another parent or alternative primary carer in the UK or in the EU (my emphasis).
20. In Miah (Section 117B NIAA [2002] - Children) [2016] UKUT 131 (IAC) a Presidential panel made the following observations at paragraph [16]:
Decision-makers and Judges should take care to apply the correct prism when considering this IDI. Its legal status must be appreciated. It is not a statutory measure. It is, rather, a policy document. Being of this character, it attracts the application of a series of well-established principles, four in particular. First, it is an obligatory material consideration in the decision-making process. Second, it is not writ in stone. Rather, its contents are to be viewed as a series of flexible and inexhaustive requirements ?. We would further emphasise that the IDI is not, and does not claim to be, an exhaustive code. To approach it as a collection of rigid rules and/or a comprehensive edict would be erroneous in law. Finally, it is trite law that IDIs and kindred instruments do not have the status of law and, thus are subservient to primary legislation, secondary legislation and the Immigration Rules.
21. Appendix FM is an expression of the SSHD's policy as to how the balance should be struck in particular types of case. Quite deliberately, a person in the claimant's position is excluded from being able to take the benefit of EX.1(a). He cannot take the benefit of EX.1(a) because he is in a genuine and subsisting relationship with the mother of the British national children. Equally, looking at the matter from the perspective of the stepchildren, their British national status does not, under the Rules, prevent them from being expected (as distinct from being required) to relocate with their mother and stepfather to Pakistan in order to enable family life to be carried on there. The higher test of "insurmountable obstacles" has to be satisfied under the Rules in order to prevent such an outcome.
22. It was not apparently argued that there are insurmountable obstacles to family life between the claimant and his wife being carried on in Pakistan with the seven children, and the Judge made no finding to this effect. So the necessary starting point in her analysis of the claim outside the Rules was that the claimant needed to show exceptional or at least compelling circumstances to render his removal a disproportionate outcome. The policy guidance did not demand that he should be allowed to stay, as he had used deception as well as being an overstayer, and there was also the option of the children not going with him but continuing to be looked after in the UK by their primary carer, their mother. The judge did not address the question whether, as an alternative to the entire family relocating to Pakistan, it was proportionate for there to be a temporary separation while the claimant returned to his home country to regularise his status.
23. However, through Mr Mills, the SSHD has withdrawn her case that the lack of adequate reasoning was material to the outcome. It is now accepted that it was open to the judge to reach the conclusion on the evidence before her that the removal of the claimant would be disproportionate to the legitimate public end sought to be achieved, and the SSHD no longer seeks to disturb that finding. Accordingly, the decision of the First-tier Tribunal was not vitiated by a material error of law.

Notice of Decision
24. The decision of the First-tier Tribunal does not contain an error of law such that the decision should be set aside and remade. Accordingly, the decision stands and the Secretary of State's appeal to the Upper Tribunal is dismissed.

22. I make no anonymity direction.

Signed Date 13 January 2017

Judge Monson

Deputy Upper Tribunal Judge