IA/05644/2014
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The decision
IAC-AH-co-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/05644/2014
THE IMMIGRATION ACTS
Heard at Field House
Determination Promulgated
On 25 November 2014
On 26 May 2015
Before
DEPUTY UPPER TRIBUNAL JUDGE G A BLACK
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
FS
ANONYMITY ORDER MADE
Claimant
DECISION AND REASONS REMADE
1. This is the remaking of a decision that was set aside as a result of an error of law. The Upper Tribunal allowed the appeal of the Secretary of State's against a decision by the First-tier Tribunal (FTT) allowing the Claimant's appeal against a refusal of a derivative residence card under the Immigration (European Economic Area) Regulations 2006. The Upper Tribunal remade the decision previously but owing to a procedural irregularity that Tribunal did not have the requested written submissions before it. That decision was then set aside under Rule 43 (Tribunal Procedure (Upper Tribunal) Rules 2008 on 1st April 2015 by Upper Tribunal Judge Latter.
2. The Upper Tribunal has had regard to the Claimant's written submissions and evidence attached to the solicitors letter dated 14th February 2014. No submissions were received from the Secretary of State. The issue related to Regulation 15A(4A) of the 2006 Regulations, specifically the second limb whether "the relevant British citizen would be unable to reside in the UK or in another EEA State if P were required to leave. " The Upper Tribunal takes into account the preserved findings of fact made by the FTT that the Claimant was the primary carer of a British national child, and that the child's father had a role in caring for his daughter but this was restricted by his working hours. The child has emotional ties with her mother and also with her father although she became fretful when with her father. There was no evidence to show that the child's life would be seriously impaired such that she would be compelled to leave the UK with the Claimant (her non EU citizen mother) to live outside the UK. The Upper Tribunal takes into account the second witness statement from the Claimant's partner (although this was not evidence that was before the FTT). He indicates that he is unable to look after his child full time because of work, he is unwilling to do so because of lack of experience and the strong bond between the Claimant and the child.
3. In Sanneh R (on the application of) v SSWP & HMRC 2013 EWHC 793 (Admin) Hickbottom J held that "? even where a non EU ascendant relative is compelled to leave EU territory, the Article 20 rights of an EU child will not be infringed if there is another ascendant relative who has the right of residence in the EU, and who can and will in practice care for the child". This view was emphasised in MA & SM (Zambrano:EU children outside EU) Iran [2013] UKUT 00380 (IAC) and in which it was confirmed that: " The mere fact that the sponsor cannot be as economically active as he would wish because of his care responsibilities to JM and FM, is not sufficient to support a conclusion that JM and FM would be denied the genuine enjoyment of their EU citizenship rights, nor would this be the case even if the sponsor were required to stop working altogether."
4. The Upper Tribunal has also considered the applicable principles where, as here, there is another relative who may be able to care for the child, in Hines v Lambeth [2014] EWCA Civ 660 at [21] and [24], and the significance of the welfare of the child. The Court was unwilling to lay down guidelines as to the kind of alternative care that might be required in order to avoid the conclusion that the child would be forced to leave. The correct approach, as approved by the Court of Appeal at [10]:
"The decision maker is not required to consider whether it would be best for the child to remain with his primary carer - the welfare of the child is not the paramount consideration. Although less than desirable, the child might be able to be looked after - to the extent that his age and other circumstances made him dependent on the care of another person - by someone other than the current primary carer. It would only be if no adequate arrangements could be made, that the child would effectively have to leave."
5. The Claimant's written submissions cite two unreported decisions of the First-tier for which permission has neither been applied for nor granted in accordance with the Practice Direction No 11. The Upper Tribunal has not taken those decisions into consideration. There was no evidence before the FTT to indicate that the child had no relationship with her father or that the bond between her and the Claimant prevented the father from looking after his daughter. The evidence was that he did have a role, albeit he was not the primary carer, and that involved taking her to school on occasion. He could be expected to make adaptations to his working life to look after his child. As to the practical arrangement the Upper Tribunal is satisfied that the father would be able to make adjustments to his working arrangements to enable him to look after the child. There was no evidence that the child would be traumatised if separated from the Claimant and or her quality of life seriously impaired. The Upper Tribunal is not satisfied that the Claimant's partner could not reasonably care for his child full time. The child is now over 5 years old. The partner's working pattern is a matter of choice. The requirements of paragraph 15A (EEA Regs) are met.
6. The Claimant did not raise Article 8 ECHR in her grounds of appeal.
Decision
7. The decision of the FTT did involve an error of law and it is set aside. The Appeal of the Secretary of State is allowed.
8. The Tribunal re make the decision by dismissing the appeal under the Immigration (EEA) Regulations 2006 with reference to Regulation 15A.
Signed Date 18.5.2015
Deputy Upper Tribunal Judge G A Black
ANONYMITY ORDER MADE
Anonymity order made because there is a child involved.
Signed Date 18.5.2015
Deputy Upper Tribunal Judge G A Black
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/05644/2014
THE IMMIGRATION ACTS
Heard at Field House
Determination Promulgated
On 25 November 2014
On 26 May 2015
Before
DEPUTY UPPER TRIBUNAL JUDGE G A BLACK
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
FS
ANONYMITY ORDER MADE
Claimant
DECISION AND REASONS REMADE
1. This is the remaking of a decision that was set aside as a result of an error of law. The Upper Tribunal allowed the appeal of the Secretary of State's against a decision by the First-tier Tribunal (FTT) allowing the Claimant's appeal against a refusal of a derivative residence card under the Immigration (European Economic Area) Regulations 2006. The Upper Tribunal remade the decision previously but owing to a procedural irregularity that Tribunal did not have the requested written submissions before it. That decision was then set aside under Rule 43 (Tribunal Procedure (Upper Tribunal) Rules 2008 on 1st April 2015 by Upper Tribunal Judge Latter.
2. The Upper Tribunal has had regard to the Claimant's written submissions and evidence attached to the solicitors letter dated 14th February 2014. No submissions were received from the Secretary of State. The issue related to Regulation 15A(4A) of the 2006 Regulations, specifically the second limb whether "the relevant British citizen would be unable to reside in the UK or in another EEA State if P were required to leave. " The Upper Tribunal takes into account the preserved findings of fact made by the FTT that the Claimant was the primary carer of a British national child, and that the child's father had a role in caring for his daughter but this was restricted by his working hours. The child has emotional ties with her mother and also with her father although she became fretful when with her father. There was no evidence to show that the child's life would be seriously impaired such that she would be compelled to leave the UK with the Claimant (her non EU citizen mother) to live outside the UK. The Upper Tribunal takes into account the second witness statement from the Claimant's partner (although this was not evidence that was before the FTT). He indicates that he is unable to look after his child full time because of work, he is unwilling to do so because of lack of experience and the strong bond between the Claimant and the child.
3. In Sanneh R (on the application of) v SSWP & HMRC 2013 EWHC 793 (Admin) Hickbottom J held that "? even where a non EU ascendant relative is compelled to leave EU territory, the Article 20 rights of an EU child will not be infringed if there is another ascendant relative who has the right of residence in the EU, and who can and will in practice care for the child". This view was emphasised in MA & SM (Zambrano:EU children outside EU) Iran [2013] UKUT 00380 (IAC) and in which it was confirmed that: " The mere fact that the sponsor cannot be as economically active as he would wish because of his care responsibilities to JM and FM, is not sufficient to support a conclusion that JM and FM would be denied the genuine enjoyment of their EU citizenship rights, nor would this be the case even if the sponsor were required to stop working altogether."
4. The Upper Tribunal has also considered the applicable principles where, as here, there is another relative who may be able to care for the child, in Hines v Lambeth [2014] EWCA Civ 660 at [21] and [24], and the significance of the welfare of the child. The Court was unwilling to lay down guidelines as to the kind of alternative care that might be required in order to avoid the conclusion that the child would be forced to leave. The correct approach, as approved by the Court of Appeal at [10]:
"The decision maker is not required to consider whether it would be best for the child to remain with his primary carer - the welfare of the child is not the paramount consideration. Although less than desirable, the child might be able to be looked after - to the extent that his age and other circumstances made him dependent on the care of another person - by someone other than the current primary carer. It would only be if no adequate arrangements could be made, that the child would effectively have to leave."
5. The Claimant's written submissions cite two unreported decisions of the First-tier for which permission has neither been applied for nor granted in accordance with the Practice Direction No 11. The Upper Tribunal has not taken those decisions into consideration. There was no evidence before the FTT to indicate that the child had no relationship with her father or that the bond between her and the Claimant prevented the father from looking after his daughter. The evidence was that he did have a role, albeit he was not the primary carer, and that involved taking her to school on occasion. He could be expected to make adaptations to his working life to look after his child. As to the practical arrangement the Upper Tribunal is satisfied that the father would be able to make adjustments to his working arrangements to enable him to look after the child. There was no evidence that the child would be traumatised if separated from the Claimant and or her quality of life seriously impaired. The Upper Tribunal is not satisfied that the Claimant's partner could not reasonably care for his child full time. The child is now over 5 years old. The partner's working pattern is a matter of choice. The requirements of paragraph 15A (EEA Regs) are met.
6. The Claimant did not raise Article 8 ECHR in her grounds of appeal.
Decision
7. The decision of the FTT did involve an error of law and it is set aside. The Appeal of the Secretary of State is allowed.
8. The Tribunal re make the decision by dismissing the appeal under the Immigration (EEA) Regulations 2006 with reference to Regulation 15A.
Signed Date 18.5.2015
Deputy Upper Tribunal Judge G A Black
ANONYMITY ORDER MADE
Anonymity order made because there is a child involved.
Signed Date 18.5.2015
Deputy Upper Tribunal Judge G A Black