Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01450/2020
[PA/51785/2020]

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On the 15 June 2022
On the 14 July 2022

Before

UPPER TRIBUNAL JUDGE HANSON

Between

KM
(Anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Read instructed by MYUKVISAS Limited
For the Respondent: Mr Diwnycz - a Senior Home Office Presenting Officer.

DECISION AND REASONS

1. Since the error of law hearing at Bradford on 23 February 2022 the Upper Tribunal has been advised of a further development in that the appellant has a child AM, born on 14 June 2020, who is a British citizen.
2. An email dated 17 May 2022 sent by the appellant’s current representatives contained a copy of a communication to the Home Office seeking clarification regarding a further leave to remain application submitted on 21 December 2021, for which biometrics were enrolled on 10 January 2022, in relation to which a response was awaited. There is no further communication provided in relation to this issue.
3. The family composition at the date of this hearing is therefore the appellant, an Albanian national born on 29 January 1991, her two sons born on 14 June 2020 and 28 September 2011 respectively and a daughter born on 16 November 2014. Her elder son and daughter are Albanian citizens.
4. The appellant sought leave to remain on the basis of a claim for international protection and on human rights grounds.
5. At the hearing, after further submissions had been made and a discussion with a representative, the appellant withdrew the protection claim to pursue the human rights claim which I allow for the reasons set out below.
6. That decision is correct, for on the facts and applicable legal provisions the protection claim would have been refused.

Discussion

7. It is not disputed that the appellant experienced difficulties in Albania as a result of the activities of her husband and his indebtedness nor that there is a positive finding that the appellant has been a victim of human trafficking for the reasons set out in the National Referral Mechanism Conclusive Decision.
8. Even if the evidence relied upon by the appellant was insufficient to enable her to succeed on protection grounds, in light of the availability of shelters, developments set out in the CPIN – Albania- Human Trafficking- September 2021, and country information relied upon by both parties as a whole, the reality of the situation the appellant will face is that she will return as a single mother with three dependent children, may need to seek the assistance of a shelter initially, but will face a difficult time in re-establishing herself to the level she would like in Albania. It is during this time, whilst the appellant seeks to try to establish herself economically in particular, that there could be hardship faced by the appellant and the children. It was not made out that it would be reasonable to expect the British national child to have to experience the same in Albania.
9. There is also the issue of the rights of AM as a British citizen and the fact that the child would not be able to exercise and enjoy such rights if he has to travel to Albania. It is unlikely he will be able to return to the UK to do so for a considerable period of time as at the date of the hearing the child is only just two years of age and more than likely dependent upon his mother at this time.
10. I was referred during the course of the submissions to the decision of the Upper Tribunal in JG (s 117B(6): “reasonable to leave” UK) Turkey [2019] UKUT 00072 (IAC) Rev 1 the head note of which reads: Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 requires a court or tribunal to hypothesise that the child in question would leave the United Kingdom, even if this is not likely to be the case, and ask whether it would be reasonable to expect the child to do so.
11. Section 117B(6) provides:-

“(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—

(a) the person has a genuine and subsisting parental relationship with a
qualifying child, and
(b) it would not be reasonable to expect the child to leave the United
Kingdom.”

12. It is not disputed that the appellant has a genuine and subsisting parental relationship with all of the children, including AM, as she is their primary and only carer. It was not disputed before me that AM is a qualifying child on the basis of being a British citizen, leaving the issue that set out in section 117B(6)(b) the reasonableness of expecting the child to leave the UK.
13. What is required when assessing reasonableness as a real-world assessment of the situation that will be faced by AM if returned to live in Albania.
14. Undertaking the necessary holistic assessment of the evidence it is clear that it would not be reasonable in all the circumstances to expect AM to leave the United Kingdom especially in light of the uncertainty that the child will face in Albania; particularly in relation to the child’s ability to develop to his full potential.
15. As AM succeeds the appellant must succeed as the child’s primary carer and the other two children also be permitted to remain in the United Kingdom as the appellant is their primary carer and they are the siblings of AM. It was not made out it was proportionate in all the circumstances to break up this family unit.
16. Notwithstanding the appellant’s immigration history and lack of merit in the protection claim I refer to [41] of JG in which the Upper Tribunal found:

41. We accept that this interpretation may result in an underserving individual or family remaining in the United Kingdom. However, the fact that Parliament has mandated such an outcome merely means that, in such cases, Parliament has decided to be more generous than is strictly required by the Human Rights Act 1998. It can be regarded as a necessary consequence of the aim of Part 5A of imposing greater consistency in decision-making in this area by courts and tribunals. The fact that section 117B(6) has such an aim was expressly recognised by Elias LJ at paragraph 44 of MA (Pakistan).

17. It is the will of Parliament that dictates the weight to be given to the public interest in this case such that the appeal must be allowed on human rights grounds.

Decision

18. I allow the appeal.

Anonymity.

19. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated 22 June 2022