Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/05677/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2nd September 2016
On 15th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MANDALIA

Between

MR ALEX [S]
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Gunamal of Mentor Legal LLP
For the Respondent: Mr P Duffy, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against a decision and reasons by First-tier Tribunal Judge Fletcher-Hill promulgated on 5th February 2016 in which she dismissed the appellant's appeal against the decision made by the Secretary of State on 22nd January 2015, to refuse leave to remain the UK on the basis of the appellant's family and private life.

Background
2. The appellant is a Brazilian national. He entered the UK illegally on 20th October 2001 and was temporarily released by the respondent pending an interview. The appellant failed to attend the interview that was to take place the following day, and did not come to the attention of the respondent again until 22nd March 2014. On that day, the appellant was arrested by Police, charged with common assault and criminal damage, and taken into custody to Brixton Police station.
3. On 24th November 2014, the appellant made an application for leave to remain in the UK on human rights grounds under Article 8 ECHR. The appellant stated that he has been living in the UK for over 13 years and that he has a son, who was born in the UK on 13th September 2009. The appellant confirmed that he was not married to the mother of his child, who is also a Brazilian national. By letter dated 13th January 2015, the appellant's representatives provided further information to the respondent about his relationship with his son. They also confirmed that the appellant had been convicted, following a trial, on 29th December 2014.
4. The appellant's application was refused for the reasons set out in a decision dated 22nd January 2015. The reasons are summarised at paragraphs [3] to [10] and [12] to [24] of the decision of the First-tier Tribunal, and I do not repeat them in this decision.
The decision of First-tier Tribunal Judge Fletcher-Hill
5. Both parties were represented at the hearing before the First-tier Tribunal. The Judge records the background to the appeal at paragraphs [1] to [24] of her decision. She refers to the evidence and submissions before her at paragraphs [28] to [38] of her decision.
6. The findings of fact are set out at paragraphs [39] to [56] of the decision of the First-tier Tribunal Judge. A succinct summary of the appeal is to be found at paragraph [39];
"In summary the appellant seeks leave to remain outside the Immigration Rules in primary reliance on the fact that he has a child born in 2009 both of whose parents are Brazilian citizens and with whom he lived as a family with his mother from 2009- early 2013. When the relationship between the parents broke down Marcia left the family home with their son who continued to live with and be cared for by her. Since summer 2013 the appellant states that he saw his son by arrangement with his mother ?"
7. At paragraph [39] the Judge also states that there was "no documentary corroboration" of the appellant's claim that he sees his son by arrangement with his mother, before the Tribunal. Insofar as is material to the appeal before me, the Judge also found:
"41. The appellant seeks to remain in the UK on the basis of his family life with G but I find that he has not lived with him in a family unit since early 2013 when he would have been just three years old. There is no likelihood that he will re-establish his relationship with his mother and therefore live with them again in a family unit.
42. There is absolutely no satisfactory documentary evidence of continued contact with G after leaving the family home at the end of April 2013.
43. Given that the appellant's son was born in 2009 and is now 6 years old, and had they been in contact over the last 2-3 years it would be normal to expect there to be letters, cards and pictures drawn at school or nursery and given to his father. No such evidence of contact was before the tribunal. Furthermore, there is no letter of support from the son's school or evidence of any participation in his life or attendance at school open evenings. In fact, there is no evidence that he has continued to play any part in his son's life in recent years.
44. Whether he is in the UK or in Brazil he will be able to keep in contact with G by modern means of communication if he chooses to contact him.
45. I do not find that this appellant has a genuine and subsisting relationship with his Brazilian son. I find that he has not lived with him as a family unit since April 2013.
46. There was no evidence from the child or anyone on his behalf that he wished to see the appellant.
47. I find that insufficient evidence has been provided to the tribunal in relation to any contact order made and the exercise of any current access rights and more importantly there is little documentary evidence of the appellant taking and intending to continue to take an active role in the upbringing of children.
?
49. I find that the child affected by this case lives with his mother and always has done so and that the appellant's involvement in his life is much less. I find that it is in the best interests of the child to remain living with his mother as he always has done and in terms of the appellant, he has failed to provide proof of any contact and continuing active role in the life of his child with whom he has had no family life for an appreciable amount of time.
?"
8. The Judge went on to find that there are no good grounds for permitting the appellant to stay in the UK outside the Immigration Rules. The Judge states at paragraphs [55] and [56]:
"55. When considering the five questions posed by Lord Bingham in Razgar, whilst I accept that there will be an interference with the appellant's right to family and private life and that Article 8 are engaged, I find that the interference is in accordance with the law because the appellant cannot meet any of the requirements of the Immigration Rules for leave to remain.
56. I am required to consider the provisions of section 117A and 117B of the Immigration Act 2014 to the effect that the maintenance of effective immigration controls is in the public interest. I accept as per the provisions of section 117B that the appellant speaks good English and that he has for a time been financially independent. I record that little weight should be given to a private life established by a person at a time when the person's immigration status is precarious as indeed this appellant's has been since his arrival in October 2001. I further find that such interference is necessary in a democratic society both for the economic wellbeing of the country and for the protection of the rights and freedoms of others and that the interference is proportionate to the legitimate public ends on the facts of this appeal."
The Grounds of Appeal
9. The appellant advances two grounds of appeal. First, the Judge erred in her assessment of the appellant's evidence and in particular failed to have regard to documentary evidence that was before the Tribunal, evidencing the role that the appellant continues to play in his son's life and the contact between the appellant and his son. Second, the Judge erred in her assessment of the impact that the removal of the appellant from the UK would have upon the appellant's son in particular. It is said that the removal of the appellant to Brazil would lead to the severance of his family ties with his son, who is settled in the UK.
10. Permission to appeal was granted by First-tier Tribunal Judge Simpson on 18th July 2016. The matter comes before me to consider whether or not the decision of the First-tier Tribunal Judge involved the making of a material error of law, and if the decision is set aside, to re-make the decision.
11. Before me, Ms Gunamal accepts that the appellant is unable to succeed in an application under Appendix FM and paragraph 276ADE(1) of the Immigration Rules. She drew my attention to the evidence that was before the First-tier Tribunal that was set out in a bundle comprising 28 pages. At paragraph [32] of her decision, the Judge refers to the matters set out in the appellant's witness statement that is at pages [2] to [7] of that bundle. In that statement, at paragraphs [11] and [12], the appellant sets out the contact that he has had with his son since he separated from his former partner. The bundle also contains at page [12] a 'bail Form' issued by the Camberwell Green Magistrates Court on 28th May 2014 confirming that it was a condition of the appellant's bail that he should "not go to/enter London Borough of Croydon unless for childcare to pick up/drop off son?". At page [17] of that bundle is a letter dated 10th December 2014 from the school that the appellant's son attends. The letter states:
"This is to confirm that G? (DOB 13/09/09) of ? attends Christ Church School. G ... was admitted into Reception Class on 8th September 2014.
G's dad Mr Alex [S] is known to the school. Mr [S] brings G to school and picks him up at the end of the day."
12. At page [15] of that bundle is another letter dated 12th June 2015 from the school that the appellant's son attends. That letter states:
"I am writing to confirm that Mr Alex [S] is known to the school. Mr [S] is the parent of GS (13/09/09) who attend this school. Mr [S] is involved in his G's schooling attending class assemblies, parent appointments and Sports Day etc.
Mr [S] also brings G to school and picks him up at the end of the school day."
13. Finally, at pages [18] to [20] of the bundle, there are a series of photographs of the appellant and his son and at pages [21] to [28] there is a school report, attendance records, and copies of awards presented to the appellant's son by the school in July 2015.
14. Ms Gunamal submits that the Judge fails to refer to the evidence set out in the appellant's bundle and in stating at paragraph [43] of her decision, that there is in fact no evidence that the appellant has continued to play any part in his son's life in recent years, the Judge has plainly failed to have regard to that evidence. Ms Gunamal submits that whilst it is right to say that there was no formal evidence of the contact arrangements in the form of a contact order, the contact has been arranged by mutual agreement by the parents and is therefore not recorded in an order of the Court. Ms Gunamal submits that the Judge was wrong to find at paragraph [49] of her decision that the appellant has failed to provide proof of any contact and continuing active role in the life of his child, with whom he has had no family life for an appreciable amount of time. She submits that again, what is said by the Judge demonstrates that the Judge failed to have any regard to the evidence set out in the appellant's bundle.
15. Finally, Ms Gunamal submits that the Judge, having disregarded material evidence, failed to properly analyse the best interests of the child and the impact that the removal of the appellant would have, upon his son.
16. In reply, Mr Duffy adopts the Rule 24 response filed by the respondent and dated 2nd August 2016. He submits that one has to read what is said by the Judge at paragraph [43] of her decision, by reference to what is said in paragraph [42]. He submits that reading paragraphs [42] and [43] of the decision together, it is plain that rather than finding that there was no evidence of the role that the appellant plays in his son's life, the Judge was concerned that there was no satisfactory documentary evidence of continued contact.
17. Mr Duffy submits that in any event, any error in failing to refer to the evidence that was in the appellant's bundle is immaterial. He submits that it is common ground that the appellant cannot succeed under Appendix FM and paragraph 276 ADE(1) of the Immigration Rules. He submits that as the appellant cannot succeed under the rules, there is nothing additional that enables him to mount a successful Article 8 claim outside the Immigration Rules. There was a paucity of evidence concerning the best interests of the child and the impact that the appellant's removal would have upon his son, and it was therefore open to the Judge to find, as she did at paragraph [49], that it is in the best interests of the child to remain living with his mother as he always has done.
Error of Law
18. I have carefully considered the findings of the First-tier Tribunal Judge and I am satisfied that in a number of paragraphs the Judge proceeds upon the basis that there was no evidence before her of the contact that takes place between the appellant and his son. The Judge found at paragraph [42] that there is no satisfactory documentary evidence of continued contact between the appellant and his son since the appellant left the family home at the end of April 2013. The Judge found at paragraph [43] that there was no letter of support from the son's school or evidence of any participation in his life or attendance at school open evenings. That is to ignore the evidence set out in the two letters from the school that were before the Judge. The letter dated 12th June 2015 confirms that the appellant is involved in his son's schooling and attends class assemblies, parents' appointments and sports days etc. Both letters from the school state that the appellant takes his son to school and picks him up at the end of the day.
19. The Judge found at paragraph [47] that insufficient evidence has been provided to the Tribunal in relation to any contact order made and the exercise of any current access rights, but as set out at paragraph [39] of the decision, the evidence was that the appellant saw his son by arrangement with his mother. Unsurprisingly, there was therefore no contact order before the Tribunal. In paragraph [47] the Judge also states that there is little documentary evidence of the appellant taking and intending to continue to take an active role in the "upbringing of the children". That again, is to ignore the evidence that was in the appellant's bundle of the contact that the appellant has with his son, and the assistance that he provides.
20. The Judge did not refer to the evidence set out in the appellant's bundle in her decision. There was in my judgement, evidence of contact between the appellant and his son, that appears to have been overlooked. That evidence should have been addressed by the Judge in her assessment of appellant's appeal. In my judgement, the Judge's failure to consider the evidence that was adduced by the appellant, amounts to a material error of law and the decision of the First-tier Tribunal is set aside.
Re-making the decision
21. In re-making the decision, I remind myself that insofar as the appellant challenges the decision made by the respondent under the Immigration Rules, it is for the appellant to discharge the burden of proof and the relevant standard of proof is the balance of probabilities. As to Article 8, the burden of proof is upon the appellant to show, on the balance of probabilities, that he has established a family and private life in the UK, and that his removal from the UK as a result of the respondent's decision, would interfere with that right. It is then for the respondent to justify any interference caused. The respondent's decision must be in accordance with the law and must be a proportionate response in all the circumstances. I can take into account circumstances at the date of the appeal hearing before me.
22. The appellant, his son and his former partner are all nationals of Brazil. There was no evidence before the First-tier Tribunal of the immigration status of the appellant's son and former partner and so I must assume that neither the appellant's son nor his former partner have any form of settled status in the UK. Ms. Gunamal accepts that the appellant is unable to succeed in an application under the Immigration Rules, and as set out at paragraph [39] of the decision of the First-tier Tribunal, the appellant seeks leave to remain outside the Immigration Rules in primary reliance on the fact that he has a child born in 2009, in the UK.
23. The immigration rules are said to reflect the respondent's view of where a fair balance should be struck between the right to respect for private and family life and public interest considerations relating to the maintenance of an effective system of immigration control (paragraph GEN.1.1 Appendix FM). The rules should be read in a way that reflects a proper interpretation of Article 8 of the European Convention. However, there may some cases where the rules do not address relevant Article 8 issues. In such cases it may be necessary to consider whether there are compelling circumstances to justify granting leave to remain outside the immigration rules: SSHD v SS (Congo) [2015] EWCA Civ 387. This should be assessed by reference to the five stage test outlined by the House of Lords in R v SSHD ex parte Razgar [2004] 3 WLR 58.
24. The appellant has a child that was born in the UK, but who is a Brazilian national. There is no evidence before me that the appellant's son has any form of leave to remain in the UK. In his witness statement, the appellant explains that he does not know where his son and former partner are living, but that a friend of his former partner, has assisted him in re-establishing contact with his son. The appellant states at paragraph [12] of his witness statement that there is now an informal arrangement whereby the appellant is able to have his son stay with him overnight twice a week. The days upon which the appellant has his son are not fixed.
25. I find that notwithstanding his birth in the UK, the appellant's son is a national of Brazil. It is uncontroversial that the appellant's son lives with his mother and that she is his primary carer. I am prepared to accept that the appellant enjoys regular contact with his and that the appellant's son has overnight contact with him. I am also prepared to accept, as set out in the letters from the school that the appellant is known to the school that his son attends, and that the appellant plays an active role in his son's education attending important events at the school, and assisting with the arrangements for dropping his son off to school and picking him up at the end of the school day. There is no evidence before me as to any extended contact that the appellant has with his son during school holidays.
26. I bear in mind that following the decisions in AG (Eritrea) v SSHD [2007] INLR 407 and VW (Uganda) v SSHD [2009] EWCA Civ 5, the threshold for showing an interference with an appellant's rights under Article 8 is not particularly high. I find that it is likely that the appellant has established a family and private life in the UK with his son and that in all the circumstances of this case, removal would interfere with that life in a sufficiently grave way as to engage the operation of Article 8 (points (i) & (ii) of Lord Bingham's five stage approach in Razgar v SSHD [2004] INLR 349).
27. Article 8 of the European Convention protects the right to family and private life. However, it is not an absolute right and can be interfered with by the state in certain circumstances. It is trite law that the state has a right to control immigration and that rules governing the entry and residence of people into the country are "in accordance with the law" for the purpose of Article 8. Any interference with the right to private or family life must be for a legitimate reason and should be reasonable and proportionate.
28. s55 of the Borders, Citizenship and Immigration Act 2009 requires the respondent to make arrangements for ensuring that her functions in relation to immigration, asylum or nationality are discharged having regard to the need to safeguard and promote the welfare of children who are in the UK.
29. In Azimi-Moayed & Others (decisions affecting children; onward appeals) [2013] UKUT 197 (IAC), the Upper Tribunal in considering the case law in relation to decisions affecting children stated;
"13. It is not the case that the best interests principle means that it is automatically in the interests of any child to be permitted to remain in the United Kingdom, irrespective of age, length of stay, family background or other circumstances. The case law of the Upper Tribunal has identified the following principles to assist in the determination of appeals where children are affected by the decisions:
i) As a starting point it is in the best interests of children to be with both their parents and if both parents are being removed from the United Kingdom then the starting point suggests that so should dependent children who form part of their household unless there are reasons to the contrary.
ii) It is generally in the interests of children to have both stability and continuity of social and educational provision and the benefit of growing up in the cultural norms of the society to which they belong.
iii) Lengthy residence in a country other than the state of origin can lead to development of social cultural and educational ties that it would be inappropriate to disrupt, in the absence of compelling reason to the contrary. What amounts to lengthy residence is not clear cut but past and present policies have identified seven years as a relevant period.
iv) Apart from the terms of published policies and rules, the Tribunal notes that seven years from age four is likely to be more significant to a child that the first seven years of life. Very young children are focussed on their parents rather than their peers and are adaptable.
v) Short periods of residence, particularly ones without leave or the reasonable expectation of leave to enter or remain, while claims are promptly considered, are unlikely to give rise to private life deserving of respect in the absence of exceptional factors. In any event, protection of the economic well-being of society amply justifies removal in such cases."
30. The best interests of the child are to be determined by reference to the child alone without reference to the immigration history or status of either parent. In determining whether or not, in a case such as the present, the need for immigration control outweighs the best interests of the child, it is necessary to determine the relative strength of the factors which make it in their best interests to remain here; and also to take account of any factors that point the other way.
31. I have had regard to section 55 of the Borders, Citizenship and Immigration Act 2009 and I have had regard to the best interests of the child as a primary consideration. As I have said, I accept that the appellant enjoys regular contact with his son, but I do not accept, as is submitted on the appellant's behalf, that removal of the appellant from the country would have a significant impact upon the appellant's son. There was no evidence before the First-tier Tribunal that that is so. The primary carer for the appellant's son is his mother, and neither the appellant's son nor his former partner have any leave to remain in the UK. The appellant's son is of an age at which he relies upon his parents, and particularly in this case, upon his mother.
32. In the balance on the other side, there falls to be taken into account the strong weight to be given to the need to maintain immigration control in pursuit of the economic well-being of the country and the fact that neither the appellant, his son, nor his ex-partner have any entitlement to remain in the UK. It is also to be noted that the appellant and his former partner have remained in the UK unlawfully for a number of years. They entered into a relationship and had a child together when they had no lawful basis to be in the UK. It must have been obvious to both the appellant and his former partner that there was every possibility that they might not be able to raise their son in the UK. I accept that the removal of the appellant from the UK would cause the appellant's son some instability to begin with, but there is no reason why the appellant should not be able to maintain some indirect contact with his son from Brazil. There is every possibility that the appellant's son and his mother will also be removed to Brazil in the fullness of time. If that were to happen, the appellant would be able to enjoy direct contact with his son, in Brazil, the country of which they are all nationals.
33. In assessing whether removal in consequence of the decision would be a proportionate response I am required to take into account the public interest considerations set out in section 117B of the Nationality, Immigration and Asylum Act 2002 ("NIAA 2002"). I take into account that it is in the public interest to maintain an effective system of immigration control (s.117B(1)).
34. At the time that the relationship between the appellant and his former partner developed, and at the time the appellant's son was born, the appellant's immigration status can only be described as "precarious", as specified in s117B(5) of the NIAA 2002. The appellant made an application for leave to remain in the UK, outside the Immigration Rules, and his application for leave to remain depended on exceptional circumstances outwith the Immigration Rules. Section 117B (5) states that:
'(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious. '
35. Interpretation of this sub-section is to be found in AM (S117B) Malawi [2015] UKUT 0260 (IAC), in particular at paragraph 32 whether it is said:
"? To put the matter shortly, it appears to us that a person's immigration status is precarious" if their continued presence in the UK will be dependent upon their obtaining a further grant of leave. It is precisely because such a person has no indefinite right to be in the country that the relationships they form ought to be considered in the light of the potential need to leave the country should that grant of leave not be forthcoming".
36. I consider that this is apposite to this appeal. In my judgement, the appellant must have known that there was every possibility that the appellant and his son, both of whom are nationals of Brazil, may not secure leave to remain in the UK, and that would mean that any family and private life that they establish, may have to continue in Brazil.
37. The public interest considerations outlined in section 117B are only one part of the proportionality assessment and may still be outweighed if the appellant can show that there are particularly compelling circumstances that might justify granting leave to remain even though he does not meet the requirements of the immigration rules. I find that there is nothing in the circumstances of this case that could properly be described as raising any such compelling circumstances. Unfortunately, the appellant's understandable desire to remain in the UK does not equate to a right to do so under the law.
38. I do not accept that the decision to remove the appellant gives rise to hardship, beyond matters of "mere" hardship, "mere" obstacles or "mere" inconvenience as specified in the case of VW (Uganda) v SSHD [20091 EWCA Civ 5. I find that on the evidence before me, removal in consequence of the decision would amount to a proportionate interference with the appellant's right to private life under Article 8 of the European Convention (points (iv) & (v) of Lord Bingham's five stage approach in Razgar).
39. It follows that the appeal under the Immigration Rules and or on Article 8 grounds is dismissed.
Notice of Decision
40. The decision of the First-tier Tribunal is set aside.
41. I remake the decision and the appeal is dismissed.
42. No anonymity direction is applied for, and none is made.

Signed Date

Deputy Upper Tribunal Judge Mandalia

FEE AWARD
As I have dismissed the appeal, no fee award is appropriate.

Signed Date

Deputy Upper Tribunal Judge Mandalia