Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/04938/2015

THE IMMIGRATION ACTS

Heard at Field House, London
Decision and Reasons Promulgated
On the 2nd November 2016
On the 7th November 2016

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between:
MR J.I.
(anonymity direction made)
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss Haji (Counsel)
For the Respondent: Mr Duffy (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. The Appellant is a citizen of the United States of America and Pakistan, who was born on the 5th June 1970. This is the Appellant's appeal against the decision of First-tier Tribunal Judge Jerromes, promulgated on the 28th May 2015, in which he dismissed the Appellant's appeal against the Respondent's refusal to grant him leave to remain in the United Kingdom on the basis of his family and private life in the United Kingdom, both under the Immigration Rules and outside of the Immigration Rules under Article 8.
2. The First-tier Tribunal Judge found that the Appellant did not meet the requirements of paragraph E-LTRPT3.1, in respect of him being granted leave to remain as a parent, on the basis that the Appellant was in the United Kingdom as a visitor. The Judge went on to consider the best interests of the children for the purposes of Section 55 of the Borders, Citizenship and Immigration Act 2009, and at [24], stated "In conclusion, taking into account all of the above factors, I find that it is in the best interests of the children for the Appellant to be with both of their parents. It will be unreasonable to expect the four children and their mother (all of whom are British citizens) to uproot themselves and relocate to either the USA or Pakistan and this must lead to the conclusion that it is in the best interests of the children for the Appellant to remain in the United Kingdom".
3. However, the Judge went on to consider Article 8 and the five stage test set down by the House of Lords in the case of Razgar, but when conducting the proportionality and then made reference to Section 117B of the Nationality, Immigration and Asylum Act 2002, and said that he had taken account of the provisions of the same in terms of the maintenance of effective immigration control, and in terms of whether or not the Appellant was able to speak English and the Judge in that regard found that the Appellant had given his evidence through an interpreter, but said that he could speak English with a strong accent and could read and write English and noted that the Appellant had said that he would be financially self-sufficient with continuing support from his uncle but there was no evidence of this therefore the Judge made no findings in respect of those issues. However, the Judge then went on to find that the best interests of the children could be outweighed by the cumulative effect of other considerations and that whilst it would not be unreasonable to expect the children to leave the UK and that it would be in their best interests that the Appellant remain in the UK, the Judge found at paragraph 26.6(ii) that :
"(ii) This is not a situation where the Appellant's removal would significantly disrupt their present circumstances or rupture their relationship with him. The relationship has worked on this basis since 2009 and the family has become accustomed to living apart; this is not a case where removal of the Appellant could result in the breaking up of the family and rupture the existing ties. I am not satisfied the Appellant's continuous presence in the UK is any more essential at this time than it has been in the past 5 years: R's autism has been diagnosed from a very early age; his mother has the benefit of outside assistance and support from her own family and her back condition has been a problem for many years.
(iii) In accordance with Chikwamba and Chen, I have considered that if the only matter weighing in the Respondent's side for the Article 8 proportionality balance is the public policy of requiring an application to be made under the Immigration Rules from abroad, the application should not usually be rejected simply on that ground. However, in this case, I am not satisfied there will be significant disruption or effect on the children if the Appellant returned to Pakistan and makes an application for entry clearance bearing in mind that he entered the UK for no more than a temporary purpose, as a visitor. He has not placed before me sufficient evidence that a temporary separation will interfere disproportionately with the protective rights of the Appellant, his wife or his children. Furthermore, on the evidence before me, I cannot make any assessment as to the likely merits of a future entry clearance application. There is no evidence, for instance, that the financial and accommodation requirements will be met. I cannot therefore conclude that he would have a strong case and that such an application would be a mere technicality.
(iv) Based on an overall consideration of the facts of this case, the decision is proportionate to the legitimate aims pursued and interference in the Appellant's family life is necessary and in the public interest of fair, consistent and effective immigration control. In these particular (and unusual) circumstances, the best interests of the children are outweighed by the cumulative effect of other considerations; the decision is proportionate to the legitimate aim of maintaining immigration control. The Appellant therefore does not succeed under Article 8".
4. The Appellant has sought to appeal against that decision for the reasons set out within the Grounds of Appeal. This is a matter of record and is therefore not repeated in its entirety here, but in summary, it is argued that the decision of the First-tier Tribunal Judge in respect of proportionality is flawed and that the Judge has failed to consider Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 when carrying out the proportionality exercise. It is argued that the Appellant is not liable to deportation and has a genuine and subsisting relationship with 4 qualifying children and that the Judge made findings of fact that all of the children are British citizens and that it is in their best interests for the Appellant to remain in the UK and that the Judge's failure to consider Section 117B(6) amounts to a material error of law.
5. Permission to appeal had been granted by First-tier Tribunal Judge Pedro on the 13th August 2015, in which he stated that:
"In a well-reasoned decision the Judge has properly conducted the proportionality balancing exercise, giving due consideration to the best interests of the children of the Appellant as a primary consideration. However, the Appellant's grounds argue that the Judge failed to consider Section 117B(6) of the 2002 Act, and it did appear that the Judge did not consider this provision whilst he did make reference to other provisions of Section 117B. As the Judge concluded that it is in the public interests for the Appellant to be removed, but Section 117B(6) is a statutory provision indicating that the public interest does not require removal, the grounds raised an arguable error of law, particularly regarding whether Section 117B(6) does, or is intended to, override any other considerations in the proportionality balancing exercise in assessing whether or not removal is proportionate".
6. In the Respondent's Rule 24 Reply, it is argued, inter alia, that the First-tier Tribunal Judge directed himself appropriately and that Section 117B(6) is not determinative of the assessment exercise and is just one consideration to be factored in. It is argued the Judge has done their assessment and there is no error of law and that the Judge has conducted a thorough Article 8 assessment and the grounds amount to no more than disagreement.
7. It was on that basis that the appeal came before me in the Upper Tribunal.
8. Mr Duffy, on behalf of the Respondent, at the start of the appeal, conceded that in light of the decision of the Court of Appeal in the case of R on the Application of MA (Pakistan) and Others v The Secretary of State for the Home Department [2016] EWCA Civ 705, that the Rule 24 Reply was no longer sustainable. He conceded that the Judge had not referred to Section 117B(6) anywhere within his decision and conceded that this was a material error of law, and would have been indeed, a material error of law, even pre-dating the Court of Appeal case of MA (Pakistan). He argued that although there was a material error of law and that the decision of First-tier Tribunal Judge Jerromes should be set aside, that the case should be kept within the Upper Tribunal, and the decision re-made by me on the papers.
9. Miss Haji on behalf of the Appellant, asked me to maintain the Judge's findings, but conceded that the Judge had not taken account of the public interests requirement at paragraphs [23] and [24] of the decision. She argued that both the 4 children were themselves British citizens and that the children's mother was also a British citizen and that the only question really was whether or not it would be reasonable to expect the children to leave the United Kingdom.
10. Mr Duffy on behalf of the Respondent conceded that any argument that the children should be separated from the Appellant was effectively unarguable in this case, if the effect would require them as British Citizens to leave the EU.
11. Both legal representatives were happy for me to re-make the decision on the papers.
My Findings on Error of Law and Materiality
12. Having carefully considered the documents in this appeal and the submissions made on behalf of the parties by the legal representatives, and taking into account the concessions quite properly made by Mr Duffy on behalf of the Respondent, I do find that the decision of First-tier Tribunal Judge Jerromes does contain a material error of law, in that when considering the Appellant's appeal for the purposes of Article 8 outside of the Immigration Rules, although the Judge has stated that he has taken account of the provisions of Section 117B of the Nationality, Immigration and Asylum Act 2002 at paragraph 26.5 of his decision, nowhere does he in fact refer to Section 117B(6) or the provisions of that section. It is quite clear having read the decision, that he has failed to take that section into account, when deciding whether or not the decision amounted to a breach of the Appellant's Human Rights under Article 8. This does amount to a material error of law.
13. I therefore do set aside the decision of First-tier Tribunal Judge Jerromes in respect of his analysis of the Appellant's appeal outside the Immigration Rules for the purposes of Article 8, and I proceed to re-make that decision.
Re-Making
14. Although clearly the decision of First-tier Tribunal Judge Jerromes does contain a material error in that he failed to refer to and consider the provisions of Section 117B(6) of the Nationality, Immigration and Asylum Act 2002, the findings of the First-tier Tribunal Judge in respect of the fact that the Appellant did not meet the requirements of the Immigration Rules as he was a visitor to the UK were unchallenged, and further, the findings of the Judge regarding Section 55 of the Borders, Citizenship and Immigration Act 2009 at paragraphs [23] and [24] of the decision, were not subject to challenge. Miss Haji sought that I maintain such findings, and this was not contested by Mr Duffy. I therefore maintain and preserve the findings of First-tier Tribunal Judge Jerromes in respect of the best interests of the children at paragraph [23] of his decision, that:
"23. In determining the best interests of the children, I have considered the following factors:
(i) The children have lived in the UK for the past five years. They are therefore familiar with the ethnic identity and language of the UK.
(ii) Prior to coming to the UK, they lived in the USA. English is also the primary language in the USA.
(iii) They have not lived in Pakistan but I note they are bilingual (English and Urdu).
(iv) It has not been suggested that religion, faith or gender is relevant in this case.
(v) R requires support with his condition. The Appellant says that support cannot be provided in Pakistan although Mrs R accepts that such report could be provided in the USA.
(vi) The other three children are fit and well with no particular difficulties being taken into account.
(vii) I accept the Appellant's evidence that he has a good relationship with his children and having read the letters of M (A1 page 157) and MU (A1 page 158) it is evident that they wish him to remain in the United Kingdom.
(viii) I accept the Appellant's evidence that when in the United Kingdom he provides his wife with support in terms of caring for the children and that R in particular benefits from his presence.
(ix) Mrs R refers to access 'conditions' which are unspecified but I have found that the Appellant does in fact have frequent access.
(x) The children are all settled into school in the UK and will inevitably have made friends in school and socially.
(xi) As British citizens, the children have rights which they will not be able to exercise if they leave the UK; they will lose the advantages of growing up and being educated in Britain.
24. In conclusion, taking into account all of the above factors, I find that it is in the best interests of the children for the Appellant to be with both their parents. In this regard, I take it that the Judge meant that it was in the best interests of the children for the children to be with both their parents, including the Appellant, and, in light of the considerations that he has outlined at paragraph 23, I make a similar finding that it is in the best interests of the children for them to be with both of their parents in the UK".
15. It is important to bear in mind in this case that the First-tier Tribunal Judge consideration the evidence between paragraphs [11] and [20], and I preserve and adopt the analysis and findings in those paragraphs given that those findings were not challenged. It is relevant that Mrs R is a British citizen and that all 4 children are also British citizens. As at the date of the hearing today, M is now aged 17, MU is now aged 15, R is now aged 14 and W is now aged 8. It is also relevant that the Judge accepted the evidence that the Appellant and his wife had separated in August 2009 as he wanted to take his wife and children to Pakistan and settle there with his mother, but that his wife disagreed and that how she described in her letter dated the 7th November 2014 of there being a "very serious disagreement" as R, (who had been diagnosed with autism) "required special treatment/schooling/care/support which is difficult to obtain in Pakistan due to the lack of facilities available, however such facilities are readily available in the UK or in the USA". The Judge at [14] went on to say that Mrs R was left with no option but to leave the USA in August 2009 and come to the UK with the children to live with her family who supported her and her children through this difficult time and the children lived with their mother in Luton. The Judge also found that on his visits to the UK the Appellant had last entered on the 11th June 2014 and had stayed since, but that the Appellant was living with his uncle, at a different address in Luton which was a short walk from where the children lived. I also maintain and preserve those findings and the Judge's findings that the Appellant does have a good relationship with his children and that he visits his children every day and collects them from school and spends time with them and that the Appellant also takes M and MU for "booster sessions" of private tuition and that as a result they have improved significantly and that without the Appellant's support in bringing up the children with the boosters "they would probably be struggling at school" as found by the Judge at [16].
16. I do bear in mind when considering the Appellant's claim in respect of Article 8 outside of the Immigration Rules for the purposes of his family life as to whether or not the decision will amount to a breach of his right to a family life, and would thereby be unlawful under Section 6 of the Human Rights Act 1998, that the Tribunal must (in particular) have regard, in all cases, to the stipulations listed in Section 117B of the Nationality, Immigration and Asylum Act 2002, and I do bear in mind in that regard taking account of Section 117B, that the maintenance of an effective immigration control is in the public interests and that it is in the public interests and in particular the interests of the economic wellbeing of the United Kingdom that persons who seek to enter or remain in the United Kingdom are better able to speak English because persons who can speak English are less of a burden on taxpayers and are better able to integrate into society and that it is also in the public interests in particular the interests of economic wellbeing of the United Kingdom that persons who seek to enter or remain in the United Kingdom are financially independent because such persons are not a burden on taxpayers and are better able to integrate into society.
17. I bear in mind in that regard that although it is said that the Appellant could speak English, albeit with a strong accent, there was no evidence before the First-tier Tribunal Judge in that regard, nor is there any evidence before me in that regard, and again, although it was said that the Appellant could be maintained without recourse to public funds, by the continuous support of his uncle, there was no evidence of this, and there is still not evidence before me to say that the uncle will continue supporting the Appellant indefinitely Appellant or the amount of any such support. I therefore do bear in mind that it has not been established that the Appellant is able to speak English and that it has not been established that the Appellant is financially independent.
18. When considering the provisions of Section 117B(6), I bear in mind that under the provisions of that section "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 or subsisting parental relationship with a qualifying child; and
(b) it would not be reasonable to expect the child to leave the United Kingdom".
19. I bear in mind that the definition of a qualifying child is found in Section 117D and is said to include a person who is under the age of 18 and who is (a) a British citizen or (b) has lived in the United Kingdom for a continuous period of 7 years or more. In this regard, I do find that the Appellant's 4 children are all British citizens and are all under the age of 18 and therefore are all qualifying children. I further bear in mind and find that the Appellant is not liable to deportation and I accept and find as a fact that he does have genuine and subsisting parental relationships with his 4 children who are qualifying children, given the preserved findings from First-tier Tribunal Judge Jerromes in that regard.
20. In respect of the question as to whether or not it would be reasonable to expect the children to leave the United Kingdom, I do bear in mind the decision of the Court of Appeal in the case of R on the Application of MA (Pakistan) and Others v The Secretary of State for the Home Department [2016] EWCA Civ 705, that as was stated by Lord Justice Elias at [17] that sub-section 6 does not simply identify factors which bear upon the public interest question, "it resolves that question in the context of Article 8 applications which satisfy the conditions in paragraphs (a) and (b). It does so by stipulating that once those conditions are satisfied, the public interest will not require the applicant's removal. Since the interference with the right to private or family life under Article 8(1) can only be justified where there is a sufficiently strong countervailing public interest falling within Article 8(2) if the public interest does not require removal, then there is no other basis on which removal could be justified. It follows, in my judgement, that there can be no doubt that Section 117B(6) must be read as a self-contained provision in the sense that parliament has stipulated that where the condition specified under sub-sections are satisfied, the public interest will not justify removal. It is not legitimate to have regard to public interest considerations unless that is permitted, either explicitly or implicitly, by the sub-section itself".
21. Lord Justice Elias went on at [20] to state that "if the answer to the first question is no, and to the other three questions is yes, the conclusion must be that Article 8 is infringed" however, in respect of the application of the reasonableness concept, Lord Justice Elias in giving the lead judgement felt constrained to find that in considering the concept of reasonableness in sub-paragraph (b) one has to include the consideration of the conduct and immigration history of the parents as part of the overall analysis of the public interest in light of the Court of Appeal decision in the case of MM (Uganda) went on to find at [45] that in my judgement, if the Court should have regard to the conduct of the applicant and any other matters relevant to the public interests when considering the "unduly harsh" concept under Section 117C(5) it should when considering the question of reasonableness under Section 117B(6).
22. It is therefore clear from the Court of Appeal decision that when considering whether or not it is reasonable to expect the children to leave, that the wider public interest considerations have to be taken into account at this stage. I therefore do bear in mind in this context when considering whether or not it is unreasonable to expect the children to leave the United Kingdom, the fact that the maintenance of an effective immigration control is in the public interests and that the Appellant had only been in the United Kingdom as a visitor and has never had status in the United Kingdom other than leave as a visitor. I further bear in mind that it has not been established that the Appellant can speak English and that it has not been established that he is financially independent. I further bear in mind that little weight should be attached to a private life built up by him at a time when he has been in the UK either unlawfully or at a time when his status in the UK is precarious, and that his status has been throughout precarious. I do bear in mind however that the current application was submitted during the currency of his 6 month visitor visa, and therefore he would currently have leave pursuant to Section 3(c) of the Immigration Act 1971, and therefore he is not in the UK unlawfully. However, his positon has always been precarious.
23. However, the Appellant is no longer in a relationship with Mrs R, although she remains legally his wife, and Mrs R is a British citizen, as are all 4 children, all of whom are settled in school and who on the preserved findings of Judge Jerromes have made friends at school and socially, and all of whom have rights of British citizens which they will not be able to exercise if they leave the UK and that they would lose the advantage of growing up and being educated in the UK. The children would not in fact be returning to either the USA or Pakistan with the Appellant and Mrs R as a family unit, given that the Appellant and Mrs R are separated. Further, the children have not lived with their father since August 2009, although he clearly has visited them regularly since that stage. The Appellant and Mrs R have clearly agreed that the children are to live with her in the UK.
24. However, when conducting the balancing exercise, bearing in mind the fact that all the children are settled in the UK and on the findings of Judge Jerromes have made friends at school and socially and that they are all British citizens, I do consider and find that it would be unreasonable in the circumstances of this case to expect the children to leave the UK. Their mother certainly has no intention of leaving the UK with the Appellant, given that they are no longer in a relationship, and it would not be reasonable for them to leave without her, in circumstances where they have not lived with the Appellant full-time since 2009, given the separation of their parents. Given that I have maintained the finding of Judge Jerromes that it was in the best interests of the children to remain in the UK the reasons given by him at paragraphs [23] and [24], taking account of the public interest criteria and the wider public interest in this case, I do consider that it would be unreasonable to expect the children to leave the United Kingdom for the purposes of Section 117B(6).
25. The final question asked under Section 117B(6) is "Is it unreasonable to expect the child to leave the United Kingdom?". It is not a question as to whether or not "Will the child be expected to or have to leave the United Kingdom, as a result of the decision?". Section 117B(6) simply requires the consideration as to the reasonableness or otherwise to expect the child under the circumstances of the case to leave the United Kingdom, and in the circumstances of this case, even bearing in mind the public interest considerations, it would be unreasonable to expect the children to leave the United Kingdom.
26. In such circumstances, as stated by Lord Justice Elias in the case of MA (Pakistan) at [20] in circumstances where the Appellant is not liable to deportation and the Appellant does have a genuine and subsisting parental relationship with a qualifying child and that it is unreasonable to expect the child to leave the United Kingdom, the conclusion must be that in such circumstances Article 8 is infringed. I therefore do find that the public interest does not require the Appellant's removal, and that in such circumstances, the decision to remove him does amount to a breach of his right to a family life under Article 8. The decision reached is therefore in breach of the Appellant's Human Rights under Article 8 in respect of his right to a family life.

Notice of Decision
The decision of First-tier Tribunal Judge Jerromes does contain material errors of law and is set aside;
I re-make the decision, allowing the Appellant's appeal under Article 8 in respect of his right to a family life;
An anonymity direction was made by the First-tier Tribunal Judge, and given that the case involves 4 children, and it is appropriate for that anonymity direction to be maintained. Unless or until a Court or Tribunal otherwise direct, the Appellant, his wife and children are entitled to and granted anonymity. No report of these proceedings shall directly or indirectly identify the Appellant, his wife or his children. Failure to comply with this direction could lead to contempt of Court proceedings.

Signed

Deputy Upper Tribunal Judge McGinty Dated 2nd November 2016

TO THE RESPONDENT
Fee Award
The Appellant having succeeded in his appeal, any fees paid by him both in respect of his original application and also in respect of his appeal, should be refunded to him in full.

Signed

Deputy Upper Tribunal Judge McGinty Dated 2nd November 2016