Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10471/2015

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 28th July 2016
On 12th August 2016

Before

UPPER TRIBUNAL JUDGE D E TAYLOR

Between

Rezaul [R]
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Kumar of Newcastle Legal Centre
For the Respondent: Mr Diwnycz, Home Office Presenting Officer

DECISION AND REASONS

1. This is the appellant's appeal against the decision of Judge Hands made following a hearing at North Shields on 4th November 2015.

Background
2. The appellant is a citizen of Bangladesh born on 26th November 1976. He came to the UK as a visitor in May 2014 and applied for an extension of his leave on the basis of his family and private life here which was refused on 16th October 2014.
3. Mr [R] has entered into an Islamic marriage with the sponsor. She had three daughters from her previous marriage and the couple now have a daughter of their own.
4. Without further evidence, the judge was not satisfied that the birth certificate alone was sufficient to establish the paternity of the child. She observed that the sponsor did not have indefinite leave to remain in the UK, having only discretionary leave in order to take care of her three British citizen children. She dismissed the appeal on human rights grounds.
5. The appellant sought permission to appeal and, in a full decision Judge Nicholson granted permission in the following terms.
"Grounds 4 and 5 contend that the judge failed properly to apply Section 117B(6) of the 2002 Act.
Pursuant to that Section there would be no public interest in removing the appellant if he had a genuine and subsisting parental relationship with the children of his wife, who are British citizens, and if they could not reasonably be expected to leave the UK - see Treebhawon and Others (Section 117B(6)) [2015] UKUT 674.
It appears from paragraph 34 that the judge proceeded on the basis that the children could not reasonably be expected to leave the UK. That conclusion was inevitable bearing in mind the Secretary of State's Immigration Directorate Instructions on family migration of August 2015 which read:
"Where a decision to refuse the application would require a parent or primary carer to return to a 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."
The judge was therefore required to consider whether the appellant had a genuine and subsisting parental relationship with the child. In this respect in R (on the application of RK) (Section 117B(6) "parental relationship") IJR [2016] UKUT 00031 the Tribunal indicated that a non-biological parent may have a genuine and subsisting parental relationship with a child if they have stepped into the shoes of a parent.
On this issue it is arguable that the judge did not properly apply Section 117B(6). The judge accepted at paragraph 25 that the appellant had formed a strong emotional bond with the children and at paragraph 32 the judge found that there was no doubt the family were a unit. However the judge did not decide whether the appellant had a genuine and subsisting parental relationship with a child."
6. Mr Diwnycz did not seek to defend the determination.
7. The judge erred in law in failing to apply Section 117B(6), to which she did not refer, and which states that:
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 and subsisting parental relationship with a qualifying child; and
(b) it would not be reasonable to expect the child to leave the UK.
8. The appeal will have to be reheard and is remitted to the First-tier Tribunal to be considered before a judge other than Immigration Judge Hands.
9. Matters have now moved on. Mr Kumar provided evidence that the Home Office made a mistake when handling the sponsor's application for further leave in 2012 by putting her on the 10-year route and granting her leave for two and a half years. If that mistake had not been made she would have been settled in 2015 since she came to the UK as a spouse in 2005.
10. The situation has now been rectified and she has indefinite leave to remain. Her daughter is therefore entitled to be registered as a British citizen. The appeal should not be listed for a period of three months to enable that registration to take place, and to obtain DNA evidence to confirm the child's paternity.

No anonymity direction is made.

Signed Date 12 August 2016

Upper Tribunal Judge Taylor