Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: hu/10109/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On June 17, 2019
On July 01, 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

mr y b w
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In Person
For the Respondent: Mr S Kandola, Senior Home Office Presenting Officer
Interpreter: Mr Quan

DECISION AND REASONS
1. The appellant is a national of China and he entered the United Kingdom illegally in August 2007. He lodged an application for asylum in February 2013 but this was refused by the respondent on September 2, 2014. Further submissions were lodged in 2015 and 2016 but these were rejected without a right of appeal by the respondent.
2. On April 21, 2017 the appellant lodged further submissions on human rights grounds and whilst these were refused by the respondent on April 3, 2018 the appellant was given an in-country right of appeal.
3. The appellant appealed this decision on April 27, 2018 under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 and his appeal came before Judge of the First-tier Tribunal McGrade on November 8, 2018. In a decision promulgated on December 12, 2018 the Judge dismissed the appellant's appeal on human rights grounds.
4. The appellant appealed this decision and on March 22, 2019 Upper Tribunal Judge Storey granted permission to appeal finding it was arguable a Judge may have erred when considering the issue of continuous residence by finding the removal of the appellant's partner and their eldest child to Ireland broke the continuous residence requirement set out Section 117B(6) of the 2002 Act.
DIRECTION REGARDING ANONYMITY - RULE 14 OF THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008
5. Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
SUBMISSIONS
6. The appellant, who was appearing in person, confirmed that his legal representatives had prepared the grounds of appeal and submitted that his pregnant wife and eldest child had been forcibly removed by the UK authorities in October 2012 but were allowed to return to the United Kingdom ten days later. He argued that if the UK authorities had not forcibly removed his wife and child then his eldest child would be a qualifying child under Section 117B(6) of the 2002 Act. He reiterated that his eldest son had many friends and was doing very well academically in school. Neither his eldest child nor his youngest child (who was not a qualifying child) knew anything about China as they had been born in the United Kingdom and if they were required to leave the United Kingdom they would have to start their friendships and everything else all over again.
7. Mr Kandola, on behalf of the Secretary of State, pointed out that neither the appellant, his wife nor any of his children had ever had any leave to enter or remain in the United Kingdom. In order to succeed under Section 117B(6) of the 2002 Act there had to be continuous residence and there was nothing within this section of the Act that allowed for any exceptions to the requirement that the child be here for a continuous period. Section 117D defines a qualifying child as being someone who has lived in the United Kingdom for a continuous period of seven years or more.
8. Mr Kandola argued that whilst paragraphs 276A-B HC 395 allowed for periods of up to six months or less to be disregarded this was firstly in respect of an application for indefinite leave to remain and secondly the applicant at the time had leave to enter or remain. He invited the Tribunal to find that Section 117B(6) of the 2002 Act did not apply and that the findings made by the Judge were open to him when considering proportionality.
FINDINGS ON ERROR IN LAW
9. This is an appeal which centred on whether the Tribunal erred in finding the eldest child was not a qualifying child.
10. The relevant child had been born in the United Kingdom on May 8, 2009 and there was a younger sibling born on June 3, 2013 but this younger child did not form part of any legal submissions that I was considering today on the issue of section 117B(6) of the 2002 Act.
11. In order to succeed under Section 117B(6) of the 2002 Act, the appellant had to demonstrate that the child had been here continuously for seven years. This does not require the child to be here lawfully for seven years but simply resident for seven years. There is no definition within Section 117D of the 2002 Act of what continuous residence means but in granting permission to appeal Upper Tribunal Judge Storey referred, by way of example, to the definition of continuous residence in paragraph 276A HC 395.
12. The respondent has brought out guidance in calculating continuous periods of residence in the UK but that guidance is for use under the Immigration Rules and is specific to certain applications. Paragraph 276A HC 395 for instance allows absences of six months or less to be disregarded as long as the applicant has existing leave to enter or remain upon their departure and return.
13. The appellant's wife and child did not leave the United Kingdom by choice but there is no suggestion that the UK authorities acted unlawfully by requiring them to return to Ireland to pursue an asylum application. The fact the child and wife were allowed back in within a short period of time does not alter the fact that there was a break in continuous residence.
14. It cannot be argued that the short absence did not break the continuous residence because clearly it did. If the appellant's wife and child had been granted some form of leave before they left then the period of absence would not count but this was not the case in this appeal.
15. I therefore find that in the absence of any evidence to the contrary there is nothing that allows me to find that the period of continuous residence had not been broken. I therefore find that the Judge was entitled to deal with this appeal without having regard to Section 117(6) of the 2002 Act.
16. The only other issue remained whether the Judge had considered the appellant and his family case properly on Article 8 grounds and I am satisfied that the Judge's findings as set out in paragraphs 17 to 27 were a proper and fair assessment of the evidence and the conclusion was open to the Judge.
17. There was therefore no error in law.

Notice of Decision

I do not find there has been an error in law and I uphold the original decision.

Signed Date 27 June 2019

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD

There is no fee award because I have dismissed the appeal.

Signed Date 27 June 2019

Deputy Upper Tribunal Judge Alis