Tribunal decisions

The decision

IAC-fH-nl-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/07776/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25 August 2016
On 02 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

Farooq [D]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T S Choda, Counsel.
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is my remake decision in respect of the Appellant's appeal. By a decision promulgated on 28 April 2016 I concluded that the First-tier Tribunal had materially erred in law when making its decision on the Appellant's appeal (see annex 1). For the reasons expressed in my earlier decision I set aside the First-tier Tribunal's decision. In doing so I expressly preserved certain findings of fact. These were as follows.
i. that the Appellant takes an active role in H's life, and that he intends to do so in the future;
ii. that it is in H's best interests for the Appellant to remain in the United Kingdom and continue to take an active role in her life;
iii. that there is no sound reason to displace the judge's implicit conclusion that H could not reasonably be expected to leave the United Kingdom.
2. At the previous hearing I decided to adjourn the matter rather than re-making the decision at that stage. This was for two reasons. First, because the core issue in this case, namely the application of section 117B of the Nationality, Immigration and Asylum Act 2002, was the subject of some contention. The Respondent's position was that the conclusion reached by the President in the case of Treebhawon (section 117B(6)) [2015] UKUT 00674 (IAC) was wrongly decided. I was aware that the Court of Appeal was due to hear a case on this provision and therefore it seemed sensible to await the Court's conclusion before re-making the decision.
3. The second reason for adjourning was because the Presenting Officer, Mr Kotas, was of the view that there may be a factual dispute as to whether or not the Appellant had a parental relationship with his daughter, H. It was indicated that questioning of the Appellant might be appropriate.

Intervening procedural history
4. On 9 June 2016 Upper Tribunal Judge O'Connor issued further directions in this case. He made reference to a decision of the Upper Tribunal (Judge Southern) in the case of G E S (IA/45698/2014), in which it was held that Treebhawon was wrongly decided. This was in fact the case that I had understood to be pending before the Court of Appeal at the previous hearing. Judge O'Connor deemed it appropriate to adjourn the current appeal off for a later date.

The hearing before me
5. Shortly after Judge O'Connor issued his directions, the Court of Appeal's decision in MA (Pakistan) [2016] EWCA Civ 705 was delivered. This case specifically deals with section 117B(6) of the 2002 Act. In particular it confirms that the approach in Treebhawon was correct (see paragraphs 17 to 20 of MA (Pakistan)), and that section 117B(6) is indeed a freestanding provision, the satisfaction of which will result in an Article 8 claim being successful. In addition, the reasonableness test is considered by the Court and it is concluded that this term is to have a wider construction (see paragraph 45).
6. In light of this both representatives were agreed that MA (Pakistan) is the binding authority on a particular issue in this appeal and that there was no need for a further adjournment.
7. The first issue for me to decide is whether or not the Appellant has a parental relationship with his daughter. In this respect Mr Whitwell in his customary fair and pragmatic way acknowledged that in light of the preserved findings of fact it was somewhat difficult to see how it could properly be said that there was no such relationship. However, he did make the point that the sources of evidence on this matter were fairly limited, emanating primarily from the Appellant himself.
8. In respect of the second issue for me to determine, namely that of the reasonableness or otherwise of H leaving the United Kingdom, Mr Whitwell again acknowledged the facts of the case, including the preserved findings. Nonetheless, he asked me to note that the public interest was engaged and that the Appellant had failed to meet the Immigration Rules and this must count against him.
9. For the Appellant Mr Choda referred me to page 13 of the Appellant's supplementary bundle and relied unsurprisingly on the preserved findings of fact from the First-tier Tribunal's decision.

Re-making the decision
10. In re-making the decision in this appeal I have had regard not only to the preserved findings of fact as set out in my error of law decision, but also the evidence contained in the Appellant's first bundle, indexed and paginated 1 to 20, which was before the First-tier Tribunal, and also a supplementary bundle, indexed and paginated 1 to 31, served just before the error of law hearing. Both representatives were also in possession of this evidence.
Does the Appellant have a parental relationship with his daughter?
11. I find that the Appellant does in fact continue to have a parental relationship with H. My reasons for this are as follows.
12. First, I am guided by the Upper Tribunal decision in R (on the application of RK) v Secretary of State for the Home Department (s.117B(6); "parental relationship") IJR [2016] UKUT 00031 (IAC), in which it is said that this issue be determined based upon the circumstances as a whole and that there is no need for parental responsibility to exist as a matter of law.
13. Second, there are preserved findings of fact that the Appellant has taken and continues to take an active role in H's life, and that he intends to do so in the future. There is also a preserved finding that it is in H's best interests for the Appellant to continue to take an active role in her life.
14. Third, there has been no specific challenge to the evidence of either the Appellant as contained in his two statements in the bundles or indeed to the statement of H's mother contained in the latest bundle at pages 5 to 6. I find that this evidence clearly shows that the Appellant not only has regular contact with H but has assumed the role and continues to assume the role of her parent in respect not only of financial support but also, importantly, a practical and emotional support. Examples of this include the fact that, as I find it, that H stays at his house regularly, that he takes her to and from nursery and that he in almost all material respects acts as any father would do. The fact that H does not live permanently with the Appellant does not undermine the claim to have a parental relationship. It is an unusual feature of this particular case that the Appellant and H's mother do not live together and have not done so for some time. The relationship is in the words of H's mother, "uncertain". She states that it is conceivable that the relationship may improve at some point in the future, but as the judge found, neither the Appellant nor H's mother had any immediate plans to begin living together again in the future.
15. Fourth, there is a letter from H's nursery at 13 of the second bundle in which it is stated that the Appellant has parental responsibility, and that he drops H off and picks her up. This too counts in his favour.
Would it be reasonable for H to leave the United Kingdom?
16. First and foremost, I preserved a finding by the First-tier Tribunal (albeit an implicit one) that it not be reasonable for H to leave the United Kingdom. On this basis and in light of MA (Pakistan), the Appellant's appeal succeeds.
17. For the sake of completeness, I will also deal with the reasonableness question on the basis that there was no previous finding on the issue.
18. It is not in dispute that H is a British citizen. Whilst this is not of course a trump card in respect of the reasonableness test, it is nonetheless a significant factor, as indeed was recognised by the Respondent in MA (Pakistan) (see paragraph 35). In the particular circumstances of this case H lives for the great majority of the time with her mother. The Appellant and H's mother are in effect separated That is not to say that the relationship may not be reconciled in the future, as the Appellant appears to believe. However, for present purposes I find that there is no realistic prospect of the relationship being revived, and thus it would it be unreasonable to expect H's mother to leave the United Kingdom and go and live in Pakistan with the Appellant (or indeed apart from him). This scenario of course has a direct and a very significant bearing on whether it would be reasonable for H to leave the United Kingdom. On the face of it, if the mother does not go, H does not go. It is also a preserved finding of the First-tier Tribunal that H's best interests lie in the Appellant remaining in this country with her. That is a significant factor as well.
Are there powerful reasons which act to outweigh the above considerations?
19. In light of MA (Pakistan) I must consider the wider picture, which would include the Appellant's own circumstances. The public interest in maintaining effective immigration control is an important factor of course. Having said that the Appellant has been in this country lawfully throughout, albeit on a precarious basis. There is no misconduct on his part. It is not in dispute that he speaks good English and that he is self-sufficient.
20. It is right that the First-tier Tribunal found that the Appellant could not satisfy Appendix FM because of there was a subsisting relationship between him and H's mother. That finding was based, as I see it, on evidence from the Appellant as at August 2015 to the effect that he perceived the relationship as being on-going, whatever the reality might have been. Having now had the opportunity to considering evidence from H's mother, I find that the relationship is at the very least 'on hold', and that the lack of cohabitation is not simply a lifestyle choice. There is a relationship in as much as H's care is concerned. However, it is not one that could on any reasonable view constitute an emotional relationship in the normal sense. Thus, the finding of the First-tier Tribunal in this regard is not inconsistent with my own conclusions on the question of whether it would be reasonable for H to leave the United Kingdom. For the purposes of this remake decision, however, I will continue to proceed on the basis that the Appellant cannot meet the Rules.
21. Taking all of the factors into account I conclude that it would not be reasonable for H to leave the United Kingdom.

Conclusions
22. The Appellant does not meet the requirements of the Immigration Rules as they relate to Article 8. Mr Whitwell has not sought to suggest that I should not consider the Article 8 claim outside of the Rules and in light of existing case law it is clear that I should do so. I view section 117B(6) as a freestanding provision. H is a qualifying child in that she is a British citizen. I have found that the Appellant has a genuine and subsisting parental relationship with H. I have found that it would not be reasonable for H to leave the United Kingdom. In light of this the Appellant himself succeeds in his Article 8 claim.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision of the First-tier Tribunal.
I remake the decision by allowing the Appellant's appeal on human rights grounds.

No anonymity direction is made.

Signed Date: 1 September 2016
Deputy Upper Tribunal Judge Norton-Taylor

TO THE RESPONDENT
FEE AWARD
As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make no fee award because the evidence provided to the Respondent was uncertain and incomplete. The case required adjudication on appeal.

Signed Date: 1 September 2016
Deputy Upper Tribunal Judge Norton-Taylor

Annex 1: the error of law decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/07776/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 April 2016

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Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

FAROOQ [D]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T S Choda, Counsel, Direct Access
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Kelly (the judge), promulgated on 3 September 2015, in which he dismissed the appeal on Article 8 grounds. That appeal had been against the Respondent's decision of 9 February 2015, refusing the application for further leave to remain on Article 8 grounds and to remove the Appellant under section 47 of the Immigration, Asylum and Nationality Act 2006.
2. The Appellant's application had been based firmly on his relationship with his British daughter, H. It was the Appellant's case that he had a genuine and subsisting relationship with H, and that his Article 8 rights would be breached by his separation from her.

The judge's decision
3. The judge found that the Appellant could not satisfy the requirements of Appendix FM to the Immigration Rules. It was concluded that the Appellant could not meet the requirements of either the parent route or the partner route (see paragraphs 17-23). The judge then went on to consider the Article 8 case outside of the Rules. In paragraph 25 there was a clear finding that there was family life as between the Appellant and H. In paragraph 26 it was found that there would be an interference with that family life if the Appellant were to be removed from this country.
4. The judge went on to consider the best interests of H and it was found at paragraph 29 that those interests would be best served by her and the Appellant remaining in this country, with him continuing to take an active role in her upbringing.
5. In paragraphs 29 to 31 the judge goes on and gives a number of reasons as to why, notwithstanding H's best interests, other factors in the case outweighed that primary consideration, and that all-told the Appellant's removal from this country would be proportionate. Thus the appeal was dismissed.

The grounds of appeal and grant of permission
6. Permission to appeal was initially refused by the First-tier Tribunal but then granted by Upper Tribunal Judge Reeds on 24 February 2016. Having regard to the Appellant's grounds of appeal (he being unrepresented at the relevant time), Upper Tribunal Judge Reeds was of the view that it was arguable that the judge had failed to consider Section 117B(6) of the 2002 Act and the interpretation given to that provision by the case of Treebhawon and others (section 117B(6)) [2015] UKUT 00674 (IAC).

The hearing before me
7. At the outset of the hearing Mr Kotas accepted that the judge had failed to consider section 117B(6) and that this constituted a material error of law. In my view he was right to make that concession, there being no reference to this provision in the judge's decision and, more importantly, no consideration of the substance of this important factor.
8. In light of this I set aside the judge's decision.

Disposal
9. The question arises as to what should happen next. In the usual course of events I would be remaking the decision on the evidence before me including any preservable findings of fact from the judge's decision.
10. Mr Kotas argued that in this particular case this should not happen, for two reasons. First, that the respondent's position was that Treebhawon is wrongly decided and that legal argument must be addressed to this issue in due course. Secondly, that whilst making a number of unchallenged findings of fact the judge has not expressly stated that there was a "parental relationship" between the Appellant and H. In respect of the Appellant's further evidence submitted for this hearing Mr Kotas said that there was some issues arising from that and he would have questions for the Appellant and potentially H's mother as well. Given the comment of the judge in paragraph 29 that the Appellant's departure from this country would not necessarily cause any substantial harm to H, Mr Kotas's view was that there was a factual issue here that needed to be resolved in due course. No issue was taken on the judge's implicit conclusion that H could not reasonably be expected to leave the United Kingdom.
11. Mr Chodha did not have a strong view either way as to disposal of the appeal.
12. Having considered matters carefully and having regard to paragraph 7 of the relevant Practice Statements I am of the view that this appeal should be adjourned within the Upper Tribunal for a continuation hearing in due course. Legal argument needs to be addressed orally and in skeleton arguments, and relevant case law submitted. In addition, there are fairly narrow but relevant factual issues that still need to be determined. This in my view should be done at a continuation hearing.
13. It is my understanding that the issue surrounding the proper construction of section 117B(6) of the 2002 Act is to be considered by the Court of Appeal at some point in the near future. However, without full details I am reluctant at this stage to stand this appeal out pending any judgment from the Court.
14. I adjourn the appeal and will issue relevant directions to both parties and administration, below.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision of the First-tier Tribunal.
I adjourn the appeal.
No anonymity direction is made.

Directions to the parties:
1. The issue of whether the Appellant could satisfy the Immigration Rules has been determined against him and is no longer live;
2. The following findings of the First-tier Tribunal are preserved: that the Appellant takes an active role in H's life, and that he intends to do so in the future; that it is in H's best interests for the Appellant to remain in the United Kingdom and continue to take an active role in her life. In addition, there is no sound reason to displace the judge's implicit conclusion that H could not reasonably be expected to leave the United Kingdom;
3. Subject to directions 1 and 2, above, relevant factors at the resumed hearing will include (but are not limited to) matters within Part 5A of the 2002 Act and in particular whether the "parental relationship" element of section 117(6) of the 2002 Act is satisfied;
4. Both parties are to produce skeleton arguments on the construction of section 117B(6). These are to be filed with the Upper Tribunal and served on the other side no later than 4pm on 26 May 2016;
5. The Appellant is also to file his bundle (including any updated evidence) on the Upper Tribunal and serve it on the Respondent no later than 4pm on 26 May 2016;
6. Oral evidence from the Appellant on relevant matters is permitted.

Directions to Listings
1. The appeal is adjourned, to be heard by any judge on a date not before 16 June 2016;
2. There is a time estimate of 2 hours;
3. No interpreter is required.

Signed Date: 26 April 2016
Deputy Upper Tribunal Judge Norton-Taylor