Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/02038/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 15 November 2016
On 22 December 2016

Before

Deputy Upper Tribunal Judge MANUELL

Between

Miss AYRA SALMAN
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Sharma, Counsel
(instructed by D J Webb & Co, Solicitors)
For the Respondent: Ms K Brocklesby-Weller, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction

1. The Appellant appealed with permission granted by First-tier Tribunal Judge Pedro on 11 April 2016 against the determination of First-tier Tribunal Judge R Hussain who had dismissed the Appellant's appeal seeking settlement on Article 8 ECHR grounds as the de facto adopted child of a British Citizen. The decision and reasons was promulgated on 12 October 2015.

2. The Appellant is a national of Pakistan. Born on 20 July 2006, she had entered the United Kingdom as a visitor with her British Citizen mother on 18 January 2013 and has never returned. On 9 April 2013 she had applied through her mother for ILR on Article 8 ECHR grounds. On 15 October 2014 a judge of the First-tier Tribunal had found that the Respondent's original refusal decision was not in accordance with the law. The fresh decision, from which the present appeal stems, was dated 18 December 2014. The Secretary of State considered that it was proportionate to expect the Appellant to leave the United Kingdom and to make a fresh, Immigration Rules compliant, application. Judge R Hussain dismissed the appeal on that basis, finding that any interruption in the Appellant's education would be temporary and would in effect cause her no harm. She could be accompanied by her mother. Section 117B of the Nationality, Immigration and Asylum Act 2002 applied as the Appellant's status had always been precarious. There were no special difficulties faced by the Appellant's mother in Pakistan. Hence the appeal was dismissed.

3. Permission to appeal was granted because it was considered arguable that the judge had failed to consider paragraph 309A and 311 of the Immigration Rules, which vitiated his proportionality assessment. An allegation about procedural fairness was refused permission to appeal.

4. Standard directions were made by the tribunal. A rule 24 notice opposing the appeal was filed by the Respondent.

Submissions

5. Mr Sharma for the Appellant relied on the grounds of onwards appeal and grant. In summary he argued that the judge should have considered the Immigration Rules relating to de facto adoptions, paragraph 309A and 311. The requirements of those rules were met by the Appellant. It was a material error of law to have failed to do so, because the Article 8 ECHR evaluation could only be conducted in that way. It had been wrong of the judge to in effect blame the Appellant for an adverse immigration history for which she was not responsible. There had been a change of circumstances which had led to the overstay. The decision and reasons should be set aside and remade in the Appellant's favour.

6. Ms Brocklesby-Weller for the Respondent submitted that it was plain that the relevant Immigration Rules had not been met. Bringing a child into the United Kingdom on a visit visa was not the route for an in country application for leave to remain and was not possible. Appendix FM was the main prescribed route. The Article 8 ECHR claim had to fail because there was a route within the Immigration Rules.

7. In reply, Mr Sharma submitted that the possibility of the alternative possibility remedy of a fresh application was not an answer. Chikwamba [2008] UKHL 40 was relevant. There was no legitimate objective in requiring an out of country application. In any event the section 55 duty to safeguard the Appellant's best interests should have been applied. The mother of the child had been placed in an impossible situation, i.e., to wait indefinitely in Pakistan for an adoption order or to bring the child to the United Kingdom. The appeal must succeed under Article 8 ECHR.

No material error of law finding

8. The tribunal considers that the arguments advanced by Mr Sharma were ultimately specious, all smoke and mirrors. The argument that the judge should have considered the de facto adoption provisions of the Immigration Rules is mistaken and had been sufficiently addressed by him at [5] of the decision and reasons. There was no argument at any stage that the Appellant was able to satisfy Appendix FM or paragraph 276ADE. No application had been made under any relevant provision of the Immigration Rules.

9. As Ms Brockelsby-Weller pointed out, the Appellant was not eligible under the de facto adopted children provisions in any event:

"311. The requirements to be met in the case of a child seeking indefinite leave to remain in the United Kingdom as the adopted child of a parent or parents present and settled in the United Kingdom are that he: ?

(i) (e) in the case of a de facto adoption one parent has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is seeking admission to the United Kingdom on the same occasion for the purpose of settlement? "

10. The provisions relating to adopted children are obviously intended to promote the welfare and protection of children. As the First-tier Tribunal Judge found, in effect the Appellant's mother simply took the law into her own hands after the failure of her marriage in Pakistan and brought the Appellant to the United Kingdom on a visit visa rather than troubling with formalities in either country. As the judge found for secure reasons (see [12] onwards of the decision), there was no "pleasure trip", and no intention to return the Appellant to Pakistan. The Appellant's mother commenced work in the United Kingdom immediately. She was, of course, free to do so as a British Citizen. But she had no right to disregard the Immigration Rules in so far as they applied to the Appellant, a Pakistani national. It is also significant, as the First-tier Tribunal Judge, found, that the Appellant had not been legally adopted in Pakistan: see [14] of the decision, which was not challenged. That underlines the potential child protection issues in such appeals.

11. It is difficult to see how it could ever be proportionate under Article 8 ECHR for such conduct to be condoned. The judge approached the Article 8 ECHR assessment through the lens of the Immigration Rules and found that there was no Immigration Rule which the Appellant was able to satisfy. The judge found that there were no compelling or exceptional circumstances, as he was entitled to do. There was nothing to prevent the Appellant's mother from returning with the Appellant to Pakistan and making any settlement application for which the child was eligible. This appeal was always going to fail on proportionality grounds under Article 8 ECHR. It remains open for the Appellant to apply for entry clearance under Appendix FM of the Immigration Rules, which is the step she must take through her mother unless the Secretary of State permits another approach.

12. The tribunal finds that there was no material error of law in the First-tier Tribunal's decision. The appeal is dismissed.

DECISION

The making of the previous decision did not involve the making of a material error on a point of law. The decision stands unchanged.

Signed Dated 22/12/2016

Deputy Upper Tribunal Judge Manuell