Tribunal decisions

The decision

IAC-AH-CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00214/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 March 2017
On 16 March 2017

Before

DUPTY UPPER TRIBUNAL JUDGE MONSON

Between

a p
(anonymity direction made)
Appellant
and

Secretary of state for the home department
Respondent

Representation:
For the Appellant: Mr M Chowdhury, Solicitor, Liberty Legal Solicitors
For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals against the decision of the First-tier Tribunal (Judge Rayner sitting at Taylor House on 14 June 2016) dismissing her appeal against the decision of the Secretary of State to refuse to vary her leave to remain as the spouse of “S”, whom she joined in the UK as a student. The First-tier Tribunal made an anonymity direction in favour of the appellant, and the respondent has not sought to discharge this direction. As one of the issues in the appeal is whether the appellant can successfully piggy-back on the rights of her British citizen child, it is appropriate to maintain the anonymity direction for these proceedings in the Upper Tribunal.
Relevant Background Facts
2. The appellant is a national of Bangladesh. Her husband, S, was also born and brought up in Bangladesh. He came to the United Kingdom from Bangladesh on 30 June 2004, when aged 23. He secured various forms of leave since then, initially in his own right and latterly as a student dependant.
3. The appellant married S on 30 January 2009 over the telephone. The appellant was in Bangladesh, and S was in the United Kingdom. On 2 February 2009 the appellant entered the United Kingdom with valid entry clearance as a student. Her leave in this capacity ran until 1 May 2012. S was granted leave to remain in line with the appellant as her dependant. The appellant extended her leave to remain as a student until 30 August 2014, and S was granted further leave in line. On 19 May 2014 the appellant bore a son by S.
4. On 1 July 2014, S applied for indefinite leave to remain under paragraph 276B of the Immigration Rules on the grounds that he had accrued 10 years’ continuous lawful residence. The appellant applied simultaneously for leave to remain as his spouse on the basis of his prospective immigration status as a person with ILR.
5. S’s application was refused on 17 October 2014, and the appellant’s application was refused on 22 October 2014. The couple appealed, and their appeals were heard by Judge Anthony in the early summer of 2015. In a decision promulgated on 25 May 2015, he allowed S’s appeal on the ground that he had demonstrated 10 years’ continuous lawful residence in the UK. He allowed the appellant’s appeal to the extent that it was remitted to the respondent for a fresh decision.
6. A fresh decision was made to refuse her application on 24 August 2015, but the respondent subsequently withdrew this decision on 22 December 2015. The reason for this was because the caseworker who had prepared the refusal decision of 24 August 2015 had not been aware of the existence of the couple’s child, “A”, when considering her application.
7. On 22 December 2015, the Secretary of State gave her reasons for refusing the appellant’s application upon reconsideration. She did not qualify under the partner route as she did not meet the income threshold of £18,600. She provided evidence of an income of £12,804.47 as at the date of reconsideration on 24 August 2015.
8. The respondent considered both limbs of EX.1. Child A was not a British citizen, nor had he lived in the UK for at least 7 years immediately preceding the date of reconsideration. It was reasonable to expect child A to leave the United Kingdom as he would be returning to Bangladesh with both his parents as part of the family unit. So, the requirements of EX.1(a) were not met.
9. With regard to EX.1(b), it was accepted that she had a genuine and subsisting relationship with her spouse S, and that he had been granted indefinite leave to remain in the UK. In determining whether there were insurmountable obstacles to family life with S continuing outside the UK, the respondent said that she had considered the difficulties which she and her spouse would face in doing so, and whether they entailed something they could not overcome, or could not reasonably be expected to overcome, even with a degree of hardship for one or more of the individuals concerned.
10. She had entered the UK as a student in 2009. Her relationship with S had started and developed in the full knowledge that her immigration status was not permanent. She and her spouse were fully aware of her precarious immigration status, and they would have been aware that she might not be able to continue to live here. While her spouse had been granted ILR, she and her spouse were able to live together in Bangladesh. Her spouse had been born in Dhaka, and he had returned to Bangladesh on multiple occasions during his period of residence in the UK. Article 8 did not oblige the UK to accept the choice of a couple as to which country they would prefer to reside in. Furthermore, no evidence had been provided to show that she and her spouse could not return to Bangladesh lawfully and live there. A mere wish or preference to live in the UK would not amount to an insurmountable obstacle.
11. Consideration had been given to the parent route. But the parent route was not intended to be relied upon by a person who remains in a genuine and subsisting relationship with the other parent of their child. The parent route was to help parental access to children where the parental relationship had broken down. The caseworker went on to repeat verbatum his earlier observations about the application of EX.1.
The Hearing Before, and the Decision of, the First-tier Tribunal
12. By the time that the appellant’s appeal came before the First-tier Tribunal, the factual matrix had changed. On 7 January 2016 S’s application for naturalisation was accepted, and he received a British passport on 2 February 2016. So, as of the date of the hearing before Judge Rayner, child A was a British citizen.
13. In his subsequent decision, Judge Rayner addressed EX.1(a) of Appendix FM. He found that the appellant satisfied all the criteria in sub-paragraph 1 of EX.1(a). But he directed himself that EX.1 was not free-standing. In order to access EX.1, the appellant had to satisfy certain eligibility requirements. She could not do so, as the eligibility requirements reflected the fact that the parent route was designed for single parent applicants. So, the appellant could not satisfy the parent route and thus she could not access EX.1.
14. The Judge turned to consider the partner route. Miss Fijiwala, on behalf of the Home Office, accepted that the appellant was eligible for consideration for a grant of leave to remain on the basis of EX.1(b). At paragraph [31], the Judge gave his reasons for finding that there are no insurmountable obstacles to family life continuing in Bangladesh. Among other things, S had family in Bangladesh and he visited them when he went there. It was not the brain tumour operation that currently prevented him working, but injuries consequent from his fall in the bath. There was nothing to suggest that the effect of those injuries need to be long-lasting, so S would be fit to work in the relatively near future. There were no restrictions on the appellant working in Bangladesh. She had provided no evidence of the level of care, treatment or medication in Bangladesh for her husband’s conditions, which were currently managed by medication.
15. At paragraph [34] onwards, the Judge turned to consider an Article 8 claim outside the Rules. At paragraphs [39]-[42], the Judge cited extensive passages from various authorities including ZH Tanzania -v- SSHD [2011] 2AC 66, Zoumbas and EV (Philippines) -v- SSHD.
16. At paragraph [46], he said he took into account all the factors outlined by Christopher Clarke LJ in EV (Philippines) at paragraph [35]. Child A was 2 years old. HIs parents were from Bangladesh and spoke “Bangla” in his presence. He had no additional medical needs. He had lived all his life in the United Kingdom, but he was of an age that, with his parents’ support, he would be readily able to integrate into Bangladeshi society. He had family members in Bangladesh.
17. At paragraph [47], the Judge found that if the appeal was refused, S would accompany his wife and child to Bangladesh. Child A’s best interests were to remain in the UK, in so far as the United Kingdom might provide superior facilities than Bangladesh. However, in Bangladesh, child A would be educated, supported and maintained within a nurturing family.
18. At paragraphs [48]-[49] the Judge addressed the considerations arising under section 117B of the 2002 Act. He found that child A was a qualifying child within section 117B of the 2002 Act, and he accepted that the relationship between child A and the appellant was genuinely subsisting:
There is no public interest in the removal of [AP]: section 117B(6)(a). The issue therefore is whether, despite those factors, it would be reasonable to expect [AP] to leave the United Kingdom, with the inevitable effect that [A] would also have to leave and [S] would also leave. I have noted that no other consideration would give [AP] the right to remain in the United Kingdom. She can succeed only because she is the parent of a British citizen child. His best interests are my primary consideration. However, the fact that a child is involved in the assessment is not a trump card. Even the fact that the claimant is a parent of a qualifying child does not give an automatic right for the parent to remain in the United Kingdom, even if the result of the decision would be that the child has to leave the United Kingdom with his parents.
19. The Judge reached the following conclusion at paragraph [52]:
I therefore find that, notwithstanding that [A’s] best interests are, on balance, to remain in the United Kingdom, there are significant countervailing features in his private and family lives which, when taken with the respondent’s obligation to maintain immigration control, means that the decision to refuse the application is proportionate and lawful.
The Reason for the Grant for Permission to Appeal
20. On 19 December 2016, Upper Tribunal Judge Martin (sitting as a First-tier Tribunal Judge) granted the appellant permission to appeal for the following reasons:
(2) I do not agree that the Judge erred in considering the appeal under the parent route as well as the partner route, when clearly the appellant’s British child was an important feature of the appeal.
(3) It is argued that the Judge has misconstrued S.117B(6) of the Immigration Asylum Act 2002. The question is not whether it is reasonable for the parent of the qualifying child to leave, but whether it is reasonable to expect the child to leave.
The Hearing of the Upper Tribunal
21. At the hearing before me to determine whether an error of law was made out, Mr Chowdhury developed the arguments advanced in the grounds of appeal. Mr Wilding accepted that there were flaws in the decision, but he submitted that there was no material error.
Discussion
22. Ground 1 has two limbs. The first limb is that the Judge erred in law in considering the partner route. The second limb is that the Judge erred in law in not finding that there are insurmountable obstacles to family life between the appellant and her husband being carried on in Bangladesh.
23. With respect to the first limb of Ground 1, it is important to note that there is no error of law challenge to the Judge’s finding that the appellant could not take the benefit of EX.1(a) because she did not satisfy the eligibility requirements set out in E-LTRPT.2.3.
24. While it is undoubtedly the case that the appellant could not access EX.1(a) via the parent route, it is arguable that she could access it by the partner route. Whenever EX.1 is referred to in Appendix FM, it is always referred to compendiously. When, for example, it features in a section dealing with the partner route, it is not expressly limited to EX.1(b).
25. Mr Wilding submitted that the decision of the Judge on the application of EX.1(a) was sustainable on the basis that Child A was not a British citizen at the date of application or at the date of decision.
26. Addressing the first limb of Ground 1 in the terms in which it is argued, I find that no error of law is made out. The Judge was right to consider whether the appellant qualified for leave to remain under the parent route, even though this was not the route relied on by the appellant.
27. The second limb of Ground 1 is also not made out. On analysis, the argument advanced in the grounds of appeal is no more than expression of disagreement with findings that were open to the Judge on the evidence before him.
28. On 19 November 2015, S’s GP wrote a letter on his behalf to the Department of Work and Pensions. The letter was written to support his application for Personal Independence Payment. The GP said that S was diabetic, and had been diagnosed in 2009 with a benign tumour (left acoustic neuroma) which was surgically removed in 2009. Unfortunately, the surgery appeared to have had some long-lasting side effects on him. As a result, he had hearing loss in his left ear, he suffered from facial palsy, partially affecting his left side; and he reported visual difficulty and blurring, particularly in the left eye. He also suffered memory problems, difficulties and speech and dyslexia as the result of his condition.
29. If S had been successful in his application for a PIP, his wife would have been relieved of the obligation of having to meet the minimum income requirement. But as at the date of the hearing before the First-tier Tribunal, he had not been successful in being recognised as having a disability of such severity as to qualify for a PIP. He had attended a Tribunal hearing for his appeal against the decision to refuse him a PIP, and he was waiting for a decision on the appeal.
30. In his witness statement signed on 8 June 2016, S said that his symptoms following his surgery had limited his working capabilities and so he could not earn as much money as expected. Nonetheless S worked full-time as a video supervisor for two years up to November 2015. On 27 November 2015 he fell in his bath at home, leading to a rib fracture and him being signed off work for three months. There is no challenge to the Judge’s finding that S was likely to be able to resume work in the near future.
31. So it was open to the Judge to find that S’s ill-health did not represent a very significant obstacle to family life being carried on in Bangladesh. As the Judge records at paragraph [25], the appellant knew that she was expected to leave the UK after she had completed her studies, and she said she had “no problem” in going back. The only difficulty was she and her husband having to make a fresh start after a long period of residence in the UK. S did not wish to go back because he did not believe his conditions would be treated or that he would be able to work. But neither of these fears was shown to be well-founded, as the Judge held at paragraph [31].
32. Ground 2 is that the Judge’s assessment of proportionality was flawed, with particular reference to Sanade and Others (British children - Zambrano - Dereci) [2012] UKUT 0048 (IAC). As the appellant is the spouse of a settled person and the mother of a British citizen child, and the British citizen child cannot be removed from the UK due to his own rights, it is argued that, “the appellant must not be forced to be removed from the UK in accordance with the above principle”.
33. I do not consider that an error of law is made out in the terms of the case which is presented under Ground 2. While it is true that the Zambrano principle is potentially engaged, paragraph [6] of Sanade and Others, which is cited at paragraph 9 of the grounds, contains an important qualification:
Where in the context of Article 8 one parent (the remaining parent) of a British citizen child is also a British citizen …. 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 the removal of that parent will deprive the child of the effective exercise of residence in the United Kingdom or elsewhere in the union (my emphasis).
34. It would probably not be in child A’s best interests to be left in the United Kingdom with his father, while his mother returns to Bangladesh to seek entry clearance. However, the Zambrano principle is only infringed if the effect of his mother’s removal is to deprive him of the effective exercise of residence in the United Kingdom. Prima face this would not be the case, as Child A could be looked after in the United Kingdom by his father.
35. As Mr Wilding concedes, Ground 3 is made out insofar as the Judge misdirected himself as to the terms of section 117B(6). The critical question is whether the Judge’s error in this regard is material. I am not persuaded that it is, as the Judge has thoroughly performed the required exercise of assessing the best interests considerations for and against the child leaving the United Kingdom so as to reach a decision as to where on the spectrum the child’s best interests lie; and he has then taken into account the wider proportionality considerations so as to arrive at a conclusion as to whether the refusal decision is proportionate and lawful. By so doing, he has implicitly answered the question arising under section 117B(6), which is whether it is reasonable to expect child A to leave the United Kingdom. Moreover, he explicitly answers the question at the end of paragraph [51], where he says that it is reasonable to expect the child to return to Bangladesh.
36. In JW (China) v Secretary of State for the Home Department [2013] EWCA Civ 1526 the Court said at [22]:
In my view the correct approach is very well summarised in the Upper Tribunal decision of MK (Best interests of child) [2011] UKUT 00475 (IAC), where this was said at paragraphs 23 and 24 of the determination:
“…If, for example, all the factors weighing in the best interests of the child consideration point overwhelmingly in favour of the child and or relevant parents remaining in the UK, that is very likely to mean that very strong countervailing factors can outweigh it. If, at the other extreme, all the factors of relevance to the best interests of the child consideration (save for the child’s and/or parents own claim that they want to remain) point overwhelmingly to the child’s interest being best served by him returning with his parents to his country of origin ... then very little by way of countervailing considerations to do with immigration control etc. may be necessary in order for the conclusion to be drawn the decision appealed against was and is proportionate.”
37. In EV (Philippines) v SSHD [2014] EWCA Civ 874 Clarke LJ said at [36]:
In a sense the tribunal is concerned with how emphatic an answer falls to be given to the question: is it in the best interests of the child to remain? The longer the child has been here, the more advanced (or critical) the stage of his education, the looser his ties with the country in question, and the more deleterious the consequences of his return, the greater the weight that falls into one side of the scales. If it is overwhelmingly in the child's best interests that he should not return, 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.
38. The Judge followed the approach sanctioned by the Court of Appeal. He found that it was in Child A’s best interests to remain, but only on balance. In the circumstances, as the MIR was not met and family life had been established in the knowledge that AP’s status was precarious, it was open to the Judge to reach the conclusion that the public interest prevailed, with the consequence that it was reasonable to expect Child A to leave the United Kingdom with his parents.
39. The Secretary of State might take a different view if the appellant were to re-apply now for leave to remain inter alia on the basis that she is the mother of a British citizen child residing here, which was not the position at the date of decision of her previous application. But no material error of law in the decision of the First-tier Tribunal is made out.

Notice of Decision
The decision of the First-tier Tribunal did not contain an error of law, and accordingly the decision stands.
This appeal to the Upper Tribunal is dismissed.

Direction Regarding Anonymity – rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
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.

Signed Date March 2017

Judge Monson
Deputy Upper Tribunal Judge