Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01907/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29 March 2017
On 18 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS

Between

Secretary of State for the Home Department
Appellant
and

G S
(anonymity direction MADE)
Respondent

Representation:
For the Appellant: Mr T Melvin, Home Office Presenting Officer
For the Respondent: Mr A Ojo of Law Eagles Limited

DECISION AND REASONS

1. This is an appeal against the decision of First-tier Tribunal Judge Hembrough promulgated on 19 August 2016.

2. Although before me the Secretary of State for the Home Department is the Appellant and GS is the Respondent, for the sake of consistency with the proceedings before the First-tier Tribunal I shall hereafter refer to GS as the Appellant and the Secretary of State as the Respondent.

3. The Appellant is a citizen of Jamaica born on 2 February 1982. He came to the United Kingdom in September 2000 at the age of 18 with a visit visa for six months’ leave to enter. On 22 February 2001 an application was made for indefinite leave to remain as the dependant of his father, but that application was refused on 13 September 2002. The Appellant appealed against that decision but the appeal was dismissed for reasons set out in a decision of Immigration Adjudicator, Mrs Elson dated 13 January 2003 (Respondent’s bundle, Annex C). The Appellant did not leave the United Kingdom consequent to that decision but remained with no leave. It was not until 14 June 2012 that he then made an application relying upon Article 8 of the ECHR. For reasons that are unclear it was not until 17 December 2014 that the Respondent dismissed the application for reasons set out in a ‘reasons for refusal’ letter (‘RFRL’) of that date.

4. The Appellant’s application had been made with particular reference to his family life. In that regard it was said as part of the application - and repeated at the date of the appeal before Judge Hembrough - the Appellant was in a relationship with Ms NE, a Jamaican citizen, and together they had had two children born respectively on 18 June 2011 and 1 June 2012. Reliance was also placed on the Appellant’s relationship with two other children that he had from a relationship with a previous partner, a Ms SG. Those children, twins, were born on 19 June 2006. For completeness this is a convenient juncture to note that there is a third child from the current relationship born on 29 April 2015 - that is to say after the date of the Secretary of State’s decision but before the proceedings before Judge Hembrough.

5. It is also a feature of this case that there was evidence submitted by the Appellant indicating that the twin girls had been the subject of care proceedings. The documents include an Order from the Kingston-upon-Thames County Court dated 9 August 2013 and a supervised contact agreement in the Appellant’s favour dated 16 May 2014.

6. The Respondent’s reasons as set out in the RFRL are summarised at paragraphs 11-13 of the decision of the First-tier Tribunal. One feature to be noted in this regard is that at page 2 of the RFRL it was noted that the Appellant’s current partner had recently made an application to remain in the United Kingdom under family or private life grounds, but that she had been refused on 13 November 2014. By the date of the proceedings before the First-tier Tribunal, however, NE and the Appellant’s first two children from the relationship with NE had in fact been granted discretionary leave to remain valid until 2 April 2018. This is noted at paragraph 8 of the decision of the First-tier Tribunal, and it appears that it was common ground that discretionary leave had been granted.

7. The Appellant appealed against the Respondent’s decision to the Immigration and Asylum Chamber. His appeal succeeded before the First-tier Tribunal on human rights grounds for reasons set out in the Decision of First-tier Tribunal Judge Hembrough. The appeal however was dismissed under the Immigration Rules – see paragraph 38 of the First-tier Tribunal decision.

8. The Respondent challenges the decision of Judge Hembrough. Permission to appeal was initially refused by First-tier Tribunal Judge Lever on 29 December 2016 but subsequently granted by Deputy Upper Tribunal Judge Davey on 7 February 2017.

9. The Respondent’s challenge as set out in the grounds submitted to the Upper Tribunal and amplified by Mr Melvin today is essentially twofold. In the first instance it is said that the First-tier Tribunal Judge erred in law in his approach to the issue of whether or not the Appellant enjoyed a parental relationship with the twin daughters from his previous relationship. In particular Mr Melvin emphasises that there was no documentary evidence in respect of this relationship and no supporting evidence from the girls’ maternal grandmother who it appeared had primary parental responsibility for the children.

10. The second ground of challenge relates to the approach taken by the Judge to the requirements of section 117B(6) of the 2002 Act. In essence what is pleaded in the grounds is that the Judge appears to have treated the parental relationship with the British citizen children as a ‘trump card’. Alternatively, in Mr Melvin’s submission, there is an element also of the Judge considering the relationships with the children collectively as a ‘trump card’, whereas this should only be a matter of a consideration and not in itself determinative.

11. By contrast, Mr Ojo on behalf of the Appellant invites the Tribunal to find that the Judge made sustainable findings on the evidence that was before him, and took those findings forward to a consideration of both section 117B(6), and also section 55 in respect of the primary role of the welfare of children in immigration cases, and reached a sustainable conclusion on all of the evidence and materials before him.

12. Turning to the first aspect of the challenge, it is instructive to note that the Judge identified at paragraph 10 of his Decision that it was part of the Appellant’s case that he was continuing to have regular staying contact with both of the twin British citizen children. The Judge records the Appellant’s oral evidence in this regard at paragraph 21 and says this:

“The Appellant’s oral evidence was that the twins now live with their maternal grandmother who now has a parental responsibility order although I was referred to no documentary evidence to this effect. He said that by agreement he now has staying contact with both children every two weeks on Saturday and Sunday. They had last stayed with him two weeks before the hearing. The twins had a close relationship with their half siblings.”

13. The Judge also heard oral evidence from the Appellant’s current partner, NE. At paragraph 31 the Judge says this:

“[NE] gave evidence in English in which she confirmed as true and adopted the contents of her witness statement dated 6 October 2015 before being asked a number of supplementary questions. As her evidence in chief was in broad accord with that given by the Appellant I do not need to record it in any detail here save to note that she confirmed that the twins came to stay with the Appellant every two weeks and that as a consequence she and her own children had developed a close relationship with them.”

14. My attention has also been drawn during the course of the hearing today to the fact that there were a number of family photographs in the Appellant’s bundle before the First-tier Tribunal (pages 28-41) which showed all of the Appellant’s daughters together, that is to say including the British citizen twins.

15. At paragraph 39 the Judge said this in respect of the evidence that he had heard:

“whilst accepting that both have poor immigration histories I found both the Appellant and Ms Edwards to be genuine and credible witnesses”.

16. The Judge then turned to the particular findings that he was making in the appeal, and at paragraphs 40 and 41 he says this:

“40. It was not in issue that the Appellant has been living in the UK since 2000. I find that he has 2 daughters, the twins from his relationship with [SG]. I find that notwithstanding the breakdown of that relationship he has continued to take a genuine and continuing interest in their welfare. I note that a letter of support from [SG] was submitted with the 2012 application in which she confirmed that the children spent ‘every other week’ with the Appellant. [NE] also made reference to regular contact with the twins in her 2012 letter of support. The Family Court documentation submitted shows that the Appellant was involved in the 2013 care proceedings as a Respondent and was granted weekly supervised contact.

41. I accept the oral evidence that [SG]’s mother now has a parental responsibility order in respect of the children and that the Appellant has staying contact every 2 weeks. The absence of documentary evidence to this effect is clearly troubling but I note from the limited Family Court documentation produced that the maternal grandmother had been proposed as an alternative carer and that the proceedings had been adjourned for investigations into her suitability.”

17. In my judgment it is absolutely clear that the First-tier Tribunal Judge was there making findings based on a combination of the oral evidence that he heard and the available documentary evidence. The Judge expressly recognised that the available documentary evidence was limited in nature but nonetheless observed that the oral evidence that he heard as to the present circumstances, in particular with regard to the twins residing with their maternal grandmother and the Appellant’s contact with the twins, was consistent with what could be gleaned from the available documentary evidence.

18. Mr Melvin argued today that in the circumstances of the Appellant’s particular immigration history the Judge should have been slow to accept his oral evidence without any supporting documentary evidence. Nonetheless that is in effect what the Judge says he does at paragraph 39 - that he accepts the testimonies of both the Appellant and his partner notwithstanding their poor immigration histories. It seems to me that this was essentially a matter of evaluation for the Judge, and it is not sufficient for the Respondent to seek to re-argue that proposition before this Tribunal. In my judgment the suggestion that the Judge should have approached the matter differently does not amount to an allegation of error of law.

19. The Judge takes these matters forward to paragraph 50 of his Decision where he states that he finds “that the Appellant has a genuine and subsisting parental relationship with the twins”. In my judgment that was a sustainable conclusion that the Judge reached after a careful consideration of the evidence and for reasons that he adequately explained in the body of his decision. In those circumstances I reject the Secretary of State’s first line of challenge.

20. Turning then to a consideration of the Judge’s approach to section 117B(6), I observe that at paragraph 51 of the decision the Judge appears to have considered that the fact that the Appellant had a genuine and subsisting parental relationship with qualifying children, that is to say the British citizen twins, was dispositive of the appeal. I would accept that in light of the decision in MA (Pakistan) and Others [2016] EWCA Civ 705 that that was in error. It was not a matter that was dispositive. It would have been necessary to consider the reasonableness of expecting the twins to leave the United Kingdom in the context of the overall case, including the Appellant’s poor immigration history. However it seems to me that that concern is answered in three ways.

21. First of all, immediately after stating that he considered this to be dispositive of the appeal the Judge went on “however out of an abundance of caution...” to consider other aspects of the case in the round over the following paragraphs 52-60.

22. Secondly, in this regard it is absolutely clear that the Judge had in mind the Appellant’s poor immigration history. He identified the Appellant’s immigration history in the preliminary parts of the decision at paragraphs 2-4. He also made reference to the Appellant’s immigration history at paragraph 39 when concluding that notwithstanding that poor immigration history he considered the Appellant to be a genuine and credible witness.

23. Thirdly, it seems to me that if one unpacks the question of ‘reasonableness’ in respect of the twins it is impossible to see by what mechanism the Secretary of State would suggest that the children might leave the United Kingdom in circumstances where - pursuant apparently to the intervention of the family courts – they are in the care of their maternal grandmother and the Appellant only enjoys, albeit without any apparent difficulty, contact rights. This is not a case where it can possibly be suggested that it is reasonable to expect these British citizen children to leave the United Kingdom: the situation is very different from, for example, a case where a British citizen child is living as part of an applicant’s/appellant’s immediate family unit in which case (depending upon all of the circumstances) the removal of the applicant/appellant and consequent relocation of the family unit might not give rise to any significant problems.

24. In any event it seems to me that the Judge has looked at this matter globally, also taking into account - as he expressly identifies at paragraph 55 - the position of the other children, that is to say the children from the Appellant’s current relationship. Whilst they are not qualifying children, and therefore section 117B(6) does not apply to them, their circumstances are nonetheless very relevant to a consideration of the Article 8 proportionality exercise conducted by the Judge. The Judge identifies at paragraph 55 that the Respondent had granted NE’s children leave, and says this, “it seems to me that in granting such leave the Respondent has recognised that it would not be reasonable to expect [NE] or her children to leave the UK”. Again he takes these matters forward and expressly gives consideration to section 55 of the 2009 Act at paragraph 57.

25. The Judge ultimately reaches this conclusion at paragraphs 59 and 60:

“59. Whilst noting that the best interests of the children are a primary consideration not the primary consideration and have to be balanced against the requirements of immigration control I find that this is an appeal where their interests should prevail.
60. Looking at the evidence before me in the round and having regard to those matters to which I am directed by primary legislation to have regard I find that the removal of the Appellant would represent a disproportionate interference in the family life he enjoys with [NE] and all his children so as to place the UK in breach of its obligations under Article 8 ECHR and Section 55 of the 2009 Act.”

26. The Judge had set out the statutory requirements of section 117B at paragraph 46 of his decision. In my judgment again it seems absolutely clear that the Judge was not - as is suggested in the Secretary of State’s grounds of appeal - treating the situation of the children as a ‘trump card’: he expressly recognised that this was a primary consideration and not the primary consideration – such emphasis being provided by the Judge at paragraph 59. Moreover, it seems to me that by having referred to the Appellant’s immigration history, and also having referred to the imperative of maintaining effective immigration control both by express citation of section 117B(1) and also by his observations at paragraphs 59 and 60, the Judge was embarked upon a balancing exercise taking into account the Appellant’s immigration history. I find no error of law.

Notice of Decision

27. The decision of the First-tier Tribunal contained no material error of law and stands.

28. The appeal of GS remains allowed on human rights grounds.

29. The Secretary of State’s challenge 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.

The above represents a corrected transcript of an ex tempore decision given at the conclusion of the hearing.

Signed: Date: 12 April 2017

Deputy Upper Tribunal Judge I A Lewis