Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: hu/14243/2018
UI-2021-000974

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 15 March 2022
On the 20 June 2022

Before

UPPER TRIBUNAL JUDGE BLUNDELL
DEPUTY UPPER TRIBUNAL JUDGE MALIK QC

Between

MJA
(ANONYMITY DIRECTION made)
Appellant
and

SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Respondent

Representation

For the Appellant: Ms N Bustani, Counsel, instructed by Waterstone Solicitors
For the Respondent: Ms S Lecointe, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This is an appeal from the decision of First Tier Tribunal Judge Veloso (“the Judge”) promulgated on 31 August 2021. By that decision, the Judge dismissed the Appellant’s appeal from the Secretary of State’s decision to refuse his human claim based on Article 8 of the European Convention on Human Rights.
Background
2. The Appellant is a citizen of Bangladesh who was born on 15 June 1989.
3. The Appellant arrived in the United Kingdom on 26 January 2010 with entry clearance as a Tier 4 (General) Student valid until 17 October 2011. He was successively granted further leave to remain as a Tier 4 (General) Student until 1 March 2016.
4. The Appellant made an application for further leave to remain on 18 June 2018 relying on his relationship with his child. The child is a British citizen who was born in the United Kingdom on 12 February 2014. In his application, the Appellant stated that the child was “conceived in 2013 entirely by accident following a one-off sexual encounter”. It was only in 2018 when the child’s mother informed him that he is the child’s father. He provided DNA evidence confirming paternity and stated that he was seeking to establish a parental relationship with the child who resided separately with the mother.
5. The Secretary of State refused the Appellant’s application on 19 June 2018. The Secretary of State concluded that the Appellant was not playing an active role in the child’s life and there was no genuine and subsisting parental relationship. The Secretary of State held that the Appellant’s removal from the United Kingdom would not be incompatible with Article 8 in those circumstances.
6. The Appellant’s appeal from the Secretary of State’s decision was heard by the Judge on 26 July 2021. In his evidence, the Appellant stated that he had applied for a Child Arrangement Order in 2019 following the mother’s refusal to allow contact with the child. He adduced the order of Recorder Vickers made on 17 May 2021 staying his application for a period of 12 months so as to comply with certain recommendations in a report prepared for the Family Court under section 37 of the Children Act 1989 (“the Section 37 report”). The recommendations were aimed to facilitate gradual contact with the child in three stages leading eventually to unsupervised contact. The Judge found that the Appellant had no genuine and subsisting parental relationship with the child and that the Secretary of State’s decision was not incompatible with Article 8. The Judge accordingly dismissed the appeal by a decision promulgated on 31 August 2021.
7. The Appellant applied for permission to appeal from the Judge’s decision on 13 September 2021. Permission to appeal was granted on 19 November 2021.
Grounds of appeal
8. The Appellant’s pleaded grounds of appeal make two connected arguments. First, the Judge failed to take into account material evidence. Second, the Judge failed to follow the correct approach as to the cases involving ongoing family proceedings.
Submissions
9. We are grateful to Ms Bustani, who appeared for the Appellant, and Ms Lecointe, who appeared for the Secretary of State, for their assistance and able submissions.
10. Ms Bustani developed the two grounds of appeal in her oral submissions and submitted that the Judge failed to follow the approach set out in RS (immigration and family court proceedings) India [2012] UKUT 218 (IAC). In answering one of our questions, she confirmed that she had drawn RS to the Judge’s attention at the hearing below. She invited us to find that the Judge’s decision was wrong in law.
11. Ms Lecointe submitted that the Judge’s decision disclosed no material error of law. She referred to KM (Zimbabwe) v Secretary of State for the Home Department [2021] EWCA Civ 693 [2021] Imm AR 1361 and submitted that the findings made by the Judge were justified on the evidence. She submitted that the Judge’s failure to expressly refer to RS was not an error of law. She invited us to dismiss the Appellant’s appeal.
Discussion
12. In RS, the Upper Tribunal gave general guidance as to the proper approach in cases involving ongoing family proceedings. The guidance is summarised in the judicial head note in these terms:
“(1) Where a claimant appeals against a decision to deport or remove and there are outstanding family proceedings relating to a child of the claimant, the judge of the Immigration and Asylum Chamber should first consider:
(i) Is the outcome of the contemplated family proceedings likely to be material to the immigration decision?
(ii) Are there compelling public interest reasons to exclude the claimant from the United Kingdom irrespective of the outcome of the family proceedings or the best interest of the child?
(iii) In the case of contact proceedings initiated by an appellant in an immigration appeal, is there any reason to believe that the family proceedings have been instituted to delay or frustrate removal and not to promote the child’s welfare?
(2) In assessing the above questions, the judge will normally want to consider the degree of the claimant’s previous interest in and contact with the child, the timing of contact proceedings and the commitment with which they have been progressed, when a decision is likely to be reached, what materials (if any) are already available or can be made available to identify pointers to where the child’s welfare lies?
(3) Having considered these matters the judge will then have to decide:
(i) Does the claimant have at least an Article 8 right to remain until the conclusion of the family proceedings?
(ii) If so, should the appeal be allowed to a limited extent and a discretionary leave be directed as per the decision on MS (Ivory Coast) [2007] EWCA Civ 133?
(iii) Alternatively, is it more appropriate for a short period of an adjournment to be granted to enable the core decision to be made in the family proceedings?
(iv) Is it likely that the family court would be assisted by a view on the present state of knowledge of whether the appellant would be allowed to remain in the event that the outcome of the family proceedings is the maintenance of family contact between him or her and a child resident here?”
13. The Court of Appeal subsequently endorsed this approach in Mohan v Secretary of State for the Home Department [2012] EWCA Civ 1363 [2013] 1 WLR 922, at [32], but stressed the need for caution in anticipating the immigration consequences of a decision in family proceedings that was yet to be taken.
14. Ms Bustani, as we note above, informed us that she had drawn the Judge’s attention to RS in her submissions. The evidence contained in the bundles that were before the Judge also showed that there were ongoing family proceedings. The bundles not only included the order made by Recorder Vickers on 17 May 2021 but also correspondence under the Protocol on Communications Between the Family Court and the Immigration and Asylum Chamber. The Judge, however, gave no consideration to RS in making her decision.
15. There is no assessment by the Judge as to whether the outcome of the pending family proceedings was likely to be material to the immigration decision. The Judge was entitled to find on the evidence before her that there was no genuine and subsisting parental relationship between the Appellant and the child. However, the purpose of the ongoing family proceedings and the order made by Recorder Vickers was to facilitate gradual contact of the Appellant with the child leading eventually to unsupervised contact. It is possible to contemplate that the Appellant would establish a parental relationship with the child if allowed by the Family Court in due course to have unsupervised contact. The outcome of the pending family proceedings was likely to be material to the immigration decision and appeal.
16. This is not a case where there were compelling public interest reasons to exclude the Appellant from the United Kingdom irrespective of the outcome of the family proceedings or the best interest of the child. The Judge did not identify any such compelling public interest reasons. Likewise, there is no finding by the Judge that the Appellant had initiated family proceedings to delay or frustrate removal and not to promote the child’s welfare.
17. The Judge was entitled to take into account the fact that the Appellant previously had only limited and infrequent contact with the child and did not take all the steps recommended in the order of Recorder Vickers and the Section 37 Report. However, the recommendations ought to be considered as a whole. They were spread over a period of 12 months and identified certain activities for months 1-2, months 3-6 and month 6-12 respectively. The Appellant’s application was stayed for 12 months on 17 May 2021 so as to comply with those recommendations. It is for the Family Court review the progress as to those recommendations after 12 months (i.e., after 17 May 2022) and to decide the Appellant’s stayed application. It is relevant to recall that the Judge heard the Appellant’s appeal around two months after the order of Recorder Vickers. The fact that there was no full compliance with the recommendations in those two months did not obviate the Judge’s obligations to follow RS and make necessary findings.
18. There was no consideration by the Judge as to whether the Appellant had an Article 8 right to remain in the United Kingdom until the conclusion of the pending family proceedings. The Judge, likewise, did not consider whether to allow the appeal to the extent set out in MS (Ivory Coast) v Secretary of State for the Home Department [2007] EWCA Civ 133. There was a wholesale failure to follow the guidance in RS.
19. We are also troubled with the Judge’s assessment as to the welfare of the child. At [48], the Judge stated that it was in the child’s best interest to remain with the mother and determined the appeal on that premise. In her submissions, Ms Lecointe accepted that the recommendations made in the Section 37 report and the order of Recorder Vickers as to the gradual contact activity over 12 months were in the child’s best interests. It does not appear from the Judge’s reasoning that she appreciated that aspect of the child’s welfare in making her decision. The Judge was obliged to have regard to that aspect of the child’s welfare as a primary consideration. The Judge’s assessment of the child’s best interest was thus incomplete.
20. We entirely accept, as Ms Lecointe submitted by reference to KM (Zimbabwe), that we should not rush to find an error of law in the Judge’s decision merely because we might have reached a different conclusion on the facts or expressed it differently. Where a relevant point is not expressly mentioned, it does not necessarily mean that it has been disregarded altogether. It should not be assumed too readily that a judge erred in law just because not every step in the reasoning is fully set out. Experienced judges in this specialised field are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically.
21. In this instance, we are satisfied that Judge’s decision is wrong is in law. In our judgment, it is clear from Judge’s reasoning that she failed to follow the guidance in RS and make necessary findings of fact. The Judge’s assessment of the child’s best interest was consequently inadequate. The error of law made by the Judge was plainly material to the outcome.
Conclusion
22. For all these reasons, we find that the Judge erred on a point of law in dismissing the Appellant’s appeal. We therefore set aside the Judge’s decision in its entirety.
23. Having regard to paragraph 7.2 of the Senior President of the Tribunal’s Practice Statement for the Immigration and Asylum Chamber, and the extent of the fact-finding which is required, we remit the appeal to the First Tier Tribunal to be heard afresh by a different Judge on up-to-date evidence.
24. We note that this is a case in which the First Tier Tribunal has previously invoked the Protocol on Communications Between the Family Court and the Immigration and Asylum Chamber. We also note that the Family Court’s review of the steps recommended in the Section 37 report is shortly to take place. It might well be thought appropriate for the First Tier Tribunal to invoke the Protocol once again so that its decision on the Appellant’s human rights appeal can be taken with full knowledge of the Family Court’s views on the state of the relationship and the best interests of the Appellant’s child. It would be appropriate, in our judgment, for the First Tier Tribunal to hold a Case Management Review hearing so that consideration can be given to invoking the Protocol in advance of any substantive hearing.
Notice of decision
25. The First Tier Tribunal’s decision is set aside and the appeal is remitted for a fresh hearing.
Anonymity order
26. The First Tier Tribunal made an anonymity order when making its decision. Likewise, having regard to the Presidential Guidance Note No 2 of 2022, Anonymity Orders and Hearing in Private, and the Overriding Objective, we also consider that an anonymity order is justified in all circumstances. We therefore make an order under Rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Accordingly, 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 his 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.

Zane Malik QC
Deputy Judge of Upper Tribunal
Immigration and Asylum Chamber

Date: 14 April 2022