Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/15467/2016

THE IMMIGRATION ACTS

Heard at Birmingham CJC
Decision & Reasons Promulgated
On 8 October 2019
On 5 November 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

NAWAZISH [H]
(ANONYMITY DIRECTION not made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr S. Ell, counsel instructed by Paragon Law
For the Respondent: Mr D. Mills, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Pakistan born on 23 December 1986. He first came to the UK on 27 July 2010 as a student and was granted further periods of leave until 29th November 2016. This leave was, however, curtailed on the basis that he had obtained an ETS certificate fraudulently. On 18 January 2015, the Appellant had an Islamic marriage to a British citizen. He made an unsuccessful application for leave to remain as the spouse of a British citizen.
2. The Appellant then applied for further leave on the basis that he had a British child, who was born on 2 April 2016. This application was also refused on 14 June 2016. The Appellant appealed against that decision and his appeal came before Judge of the First-tier Tribunal Boylan Kemp for hearing on 29 April 2019.
3. In a decision and reasons promulgated on 4 June 2019, the appeal was dismissed. Permission to appeal was sought in time on the basis that the judge had erred in her approach to the fact that there were ongoing Family Court proceedings and thus in determining the appeal whilst those were ongoing was disproportionate as the judge was essentially predetermining the outcome of the Appellant's application for direct contact with his child. Reliance was placed on the decision in RS (Immigration and Family Court proceedings) India [2012] UKUT 00218 and MS Ivory Coast [2007] EWCA Civ 133. It was further submitted that the judge had erred in regarding what the Family Court Order had said as imposing a minimum requirement when it is clear from the Family Court judgment that no contact activity condition was imposed.
4. Permission to appeal was granted in a decision dated 8 August 2019 by Upper Tribunal Judge Kamara on the basis that it is arguable that the judge was wrong to find that the Family Court had imposed a minimum requirement for the Appellant to complete a domestic violence perpetrator's programme before direct contact with his child would be considered. Permission was granted on all grounds.
Hearing
5. At the hearing before the Upper Tribunal, Mr Ell for the Appellant submitted that the judge had fallen into error at [26] by stepping into the shoes of the Family Court Judge and concluding, having carried out an assessment of the merits of the application for contact, that the Family Court proceedings were not material to the immigration case. It is clear that this is contrary to the principles set out in RS (India) (op. cit.) and that the question posed by the judge as to whether the proceedings were likely to be material could only be answered in the affirmative given that they concern the relationship between the Appellant and his child, thus the judge's approach was incorrect.
6. In relation to the second ground of appeal, the judge erred at [27] in proceeding on the basis that the Appellant must undertake the DVPP course. It is clear that the Order made by the District Judge did not go that far in that it stated that there were no conditions but rather an expectation that the Appellant would undertake some courses to show a change in circumstances or a willingness to engage in order for direct contact with his child to be granted going forward. Mr Ell submitted that this was a material error because the judge was seeking to go beyond what in fact was found by the Family Court Judge. There were no mandatory requirements that the Appellant had failed to comply with and thus the judge's finding at [27] was predicated on an incorrect factual basis. Mr Ell confirmed that there were ongoing proceedings in the Family Court and the next hearing date was on 23 December 2019.
7. In his submissions, Mr Mills stated that [55] of the Family Court judgment is relevant and that this challenge is just a question of semantics. Mr Mills accepted that the judge was not imposing the minimum legal requirement, but in reality the First-tier Tribunal Judge was simply reflecting what the Family Court Judge had set out. The Appellant has not undertaken the domestic violence course because the first step that would necessitate is for him to admit that he is a perpetrator and he denies this. The Appellant has not appealed the finding by the Family Court Judge that he had subjected his wife to domestic violence and the Appellant cannot go behind the fact that another judge has found that he is "an abuser".
8. In that scenario Mr Mills submitted that it was open to the First-tier Tribunal Judge to find that nothing would change in respect of any application for direct contact because the Appellant has not made the progress he was expected to make. Mr Mills submitted it was plainly open to the judge to make this finding on the basis that it would not make any material difference and that the Appellant could apply for visits to return to the UK to visit his child once he had been removed. Thus Mr Mills contended there was no material error and that the grounds of appeal were a misunderstanding of what the First-tier Tribunal Judge was actually finding. Mr Mills submitted the First-tier Tribunal Judge was aware of the somewhat nebulous relationship between the Tribunal and the Family Court as RS makes clear and the judge was entitled to find that it would not make a difference.
9. Mr Mills further submitted that a relevant factor for a First-tier Tribunal Judge is whether the application was made late in the day for immigration advantage and the Family Court Judge found that that was an issue. In essence, the First-tier Tribunal Judge had asked the right question and found that the Family Court proceedings would not have made a difference thus the decision should be upheld.
10. In reply, Mr Ell submitted that as lawyer's words are important and it is clear from [26] and [27] that the First-tier Tribunal Judge was making reference to what was described as a requirement by the Family Court, however that is not what was actually said. The Family Court Judge made reference to the types of things that were required which were more in the form of hurdles that had to be crossed before an application for direct contact could be successful. He submitted that the First-tier Tribunal Judge was not in a position to properly make a best interests consideration but in fact that it was what the First-tier Tribunal Judge did and it was important that the First-tier Tribunal Judge had the correct facts in mind when making the decision but had in fact made material errors in relation to the factual understanding of the case.
11. I reserved my decision which I now give with my reasons.
Findings and Reasons
12. I have concluded that the First-tier Tribunal Judge did, in fact, fall into error in essentially second guessing the outcome of future proceedings in the Family Court as to whether or not the Appellant would be given direct contact with his child. I find that in so doing the First-tier Tribunal Judge could be seen to have stepped outside the immigration jurisdiction into that best conducted by Specialist Family Court Judges. Whilst it is, of course, material that the Appellant has failed to date to accept that he has been found by the Family Court to have been responsible for domestic violence against his former wife and indeed until such time that he either successfully appeals that finding or accepts his responsibility, it is probably unlikely in light of the findings of the Family Court Judge that he will be provided or be permitted direct contact with his child that is a matter for the Family Court to decide in light of all the evidence before them including e.g. a CAFCASS Report. This is not a matter that is before the Tribunal in the current immigration proceedings. Therefore the appeal needs to be heard in order to determine the nature of the relationship between the Appellant and his child and whether the relationship they currently share can properly be seen as a genuine and subsisting parental relationship cf. RS (op. cit.).
13. I remit the appeal for a hearing before the First-tier Tribunal. This hearing should take place in early January 2020 after the Family Court have had the opportunity to determine any application for direct contact between the Appellant and his child.
14. I note that the "ETS" issue is no longer live, First-tier Tribunal Judge Law having previously found against the Appellant on that point and no appeal was lodged in that respect. Therefore the only live issues are that relating to section 117B(6) of the NIAA 2002 and EX.1A of Appendix FM of the Immigration Rules and Article 8 of ECHR.

No anonymity direction is made.

Signed Rebecca Chapman Date 1 November 2019

Deputy Upper Tribunal Judge Chapman