Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA096422015

THE IMMIGRATION ACTS

Heard at City Centre Tower, Birmingham
Decision & Reasons Promulgated
On 8th April 2016
On 14th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

mr daniyal daniyal
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms E Rutherford (Counsel)
For the Respondent: Mr Diwnycz (HOPO)

DECISION AND REASONS

1. This is an appeal against a determination of First-tier Tribunal Judge Narayan promulgated on 13th August 2015, following a hearing at Stoke-on-Trent on 6th August 2015. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a citizen of Pakistan, and was born on 12th January 1993, and is a male. He appealed against the decision of the Respondent dated 25th February 2015, refusing him an application for a variation of leave to remain in the UK on the basis of his marriage to a British citizen wife, namely, Zaynab Chloe Ann Dorris Khalifa.
The Appellant's Claim
3. The Appellant's claim is that his partner is a British citizen, born and brought up of European heritage, in the UK, and her date of birth is 11th June 1998. Their relationship began when he was a student in February 2014 and started living together on 26th September 2014 and entered into an Islamic marriage on 26th September 2014 and a civil registry marriage on 6th November 2014. The Respondent Secretary of State is wrong to refuse the Appellant's application on the basis of Appendix FM paragraph 276ADE, requiring either the Appellant's wife, or the Appellant himself to return to Pakistan, and if the Appellant himself so wishes, to then make a spouse's application for a visa to re-enter.
The Judge's Findings
4. The judge found that the Appellant's wife, in spite of her youth being only 16 years of age, had entered into a relationship and a marriage and then parenthood of a child "in the full knowledge that his stay [i.e. that of the Appellant] was not permanent and that the marriage by itself might not be sufficient to allow him to stay in the United Kingdom".
5. Second, the judge held that "they have considered the possibility of him having to leave the United Kingdom and then to reapply to rejoin his wife and child in the United Kingdom".
6. Third, the judge held that although there was a possible consideration of a child, nevertheless, it was not the case that "a young born child falls for consideration in the balancing exercise as a child is not a human being, until it is born".
7. Finally, the judge stated that, "I therefore do not consider Section 55 of the relevant Statute" (see paragraph 36). The appeal was dismissed.
Grounds of Application
8. The grounds of application state that the judge failed to carry out the balancing exercise adequately at the proportionality stage. This is because as the judge made it clear in his determination that he considered it proportionate that the Appellant should return to Pakistan and apply from there, the matter might have been different.
9. On 23rd December 2015, permission to appeal was granted.
10. On 8th January 2016, a Rule 24 response was entered by the Respondent Secretary of State.
Submissions
11. At the hearing before me Ms Rutherford, appearing as Counsel on behalf of the Appellant, submitted that the crux of the matter was that, the judge had recognised that the Appellant's wife did not wish to go to Pakistan because all her relatives and friends were in this country. First, she was a British citizen. Second, she was not of Pakistani origin. She was English. Third, the child was now born and was 7 months of age. Third, the Appellant himself was legally in the UK being a student with lawful leave. Subsequently he had Section 3C Immigration Act 1971 leave. Fourth, the Appellant's partner was a "qualifying" partner. Fifth, however, and most importantly, when regard is had to the fact that Section 117B of the 2014 Act refers to how "little weight is to be given" to a private life that is developed at a time when a person's immigration status is precarious" it is salutary to bear in mind that first, the Appellant himself was not in the UK unlawfully, and second, that that provision is focused upon "private life" so that as far as family life was concerned, it was arguable that as such a strict interpretation did not apply to family life relationships. What was more important was whether a partner was in the UK unlawfully. The Appellant in this case was not here unlawfully. Therefore, the "public interest" immigration control was less than the right to family life.
12. For his part, Mr Diwnycz submitted that this was a case where the Appellant obviously could not succeed under the Immigration Rules under paragraph 276ADE, and the judge considered the situation under freestanding Article 8 jurisprudence, and he is entitled to conclude, that in circumstances where the parties had entered this relationship with an open mind knowing fully well that marriage did not mean that they could both stay in this country, the judge was entitled to come to the conclusions that he did. There was no material arguable error of law here. The judge did properly direct himself to the law and contrary to the Appellant's Grounds of Appeal give a detailed consideration to the facts of the case. The public interest was in maintaining effective immigration control. As far as freestanding Article 8 jurisprudence was concerned, only a very small number of exceptional cases would be allowed under Article 8 where they could not succeed under the Rules. The Appellant could not point to any unjustifiably harsh consequences either for removal or for his wife were he to return to Pakistan.
Error of Law
13. I am satisfied that the making of the decision by the judge did involve an error on a point of law (See Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are as follows. This is a case where the judge does not consider the "proportionality" of requiring the Appellant to return to Pakistan, in circumstances where he had no legal right to remain here, given the right to family life that he had, but in the circumstances where the "public interest" considerations are in favour of immigration control. The proportionality exercise should have been more comprehensively undertaken. It is not enough to say that what had been done was "in the full knowledge that his stay was not permanent and that the marriage by itself might not be sufficient to allow him to stay" (see paragraph 36).
Re-Making the Decision
14. I have remade the decision on the basis of the finding of the original judge, the evidence before him, and the submissions that I have heard today. I am allowing this appeal for the following reasons. First, this is a case where the judge found as a fact that the Appellant's wife
"has very strong and cogent reasons why she does not wish to leave the United Kingdom and in any event would not do so. I accept the concerns about the future of her unborn child as the health and education in Pakistan would not be as good as in the United Kingdom ..." (paragraph 37).
15. This means that in circumstances where she is not going to leave the UK, being a British lady who has been born and brought up in this country, her family life with the Appellant will be split up if the Appellant is required to go to Pakistan.
16. Second, in that event, the question that needs to be asked is whether it is "proportionate" for this course of action to be countenanced by the immigration authorities, given that it is always open to the Appellant's husband to apply for a spouse's visa to enter to rejoin his British wife in this country.
17. However, the Appellant's child has now been born. He is 7 months old. The Appellant's wife is very young and she is reliant upon him. I have had regard to the IDI which referred to "Appendix FM 1.0 family life (as a partner or parent) and private life: ten year route" (August 2015) and this makes it clear at Section 11.2.3, and under the heading "would it be unreasonable to expect the British citizen child to leave the UK" that,
"save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British citizen child when the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child. This reflects the European Court of Justice judgment in Zambrano".
It was not, however, end there. The IDI goes on to say that,
"where a decision to refuse the application would require a parent or primary carer to return to the country outside the EU, the case must always be assessed on the basis that it would be unreasonable to expect a British citizen child to leave the EU with that parent or primary carer".
18. The possibility exists here of the Appellant and his wife and child being all required to go to Pakistan because the Appellant's wife will need his support in order to look after the child.
19. Third, this leads to the question of there being for that reason "exceptional circumstances" such that Article 8 ECHR jurisprudence must be considered.
20. Finally, in considering the matter then in its entirety, it cannot be overlooked that the child, now born, is a "qualifying child" as defined in Section 117B(1), because a child is a British citizen. Indeed the child's mother is a British citizen. Therefore, the "public interest" does not require the removal of a person who has a genuine and subsisting parental relationship with a child though it is not reasonable to expect the child to leave.
21. The original judge had already found that there are very strong and cogent reasons why the Appellant's wife does not wish to leave the UK. She was born here and spent her entire life here. She will be going to a place culturally very different from the UK. She has never been to Pakistan. She does not speak the language of Pakistan. She does not know anyone there. Her entire family is in this country. She has close links with her family members. She is a first time mother. She is young. She needs the support of everyone in this country. To expect her to relocate with a young child is not reasonable. To force her to do so will affect the care that the mother will give to a British citizen child.
22. For all these reasons, the appeal must be allowed.
Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is allowed.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 11th June 2016