Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10944/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13th September 2016
On 22nd September 2016

Before

Upper Tribunal Judge Chalkley

Between

ANJUM [N]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Z Jafferji, Counsel, instructed before Mayfair Solicitors
For the Respondent: Miss Z Ahmad, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Pakistan, born on 9th November, 1977 and is the wife of [MS], a British citizen born on 5th April, 1949 (the "sponsor"). The appellant married the sponsor on 11th April, 2005 and together they have three children, R, born on 12th March, 2010, A, born on 9th February, 2008 and M, born on 2nd January, 2006. All three children are British citizens, but were born in Pakistan and lived there until they entered the United Kingdom with their mother on 7th July, 2014.

The Immigration History
2. The appellant applied for entry clearance as a visitor on 14th December, 2006, but this was refused. She did not appeal that decision.
3. The appellant again applied for entry clearance as a visitor on 13th November, 2009. This was granted from 22nd November, 2010 until 22nd May, 2011, but no visa was actually issued. The appellant again applied for entry clearance as a visitor on 19th November, 2012 and this application was refused. On 24th March 2013, she again applied for a visit visa and in the original application stated that her visit would be for two weeks. On 10th April, 2013, the respondent refused the application because the appellant had not satisfied the respondent that she genuinely sought entry to the United Kingdom as a visitor and would leave the United Kingdom at the end of her visit.
4. Dissatisfied with this decision, the appellant appealed and her appeal before First-tier Tribunal Judge Powell was allowed. The appellant was issued with a visa valid from 24th June, 2014 to 24th December, 2014.
5. On 7th July, 2014 the appellant, in the company of her children, entered the United Kingdom. It was the first time that the appellant and her children had entered the United Kingdom. The appellant's children entered using their own passports as British citizens since the sponsor was himself was a British citizen.
Decision Under Appeal
6. On 23rd December, 2013, the appellant applied for leave to remain in the United Kingdom on the basis of her family and private life in the United Kingdom. The respondent refused this application on 4th March, 2015 and decided that the appellant should be removed from the United Kingdom by way of directions under Section 47 of the Immigration, Asylum and Nationality Act 2006. The respondent concluded that the appellant did not meet the requirements of Appendix FM and paragraph 276ADE of Statement of Changes in Immigration Rules HC 395, as amended ("the Immigration Rules"). The respondent also concluded that there were no circumstances which might justify the grant of leave to remain on the basis of the appellant's Article 8 rights outside the Immigration Rules.
7. The appellant appealed and her appeal was heard by First-tier Tribunal Judge M Whitcombe at Newport on 16th December, 2015. The judge heard evidence from the appellant and sponsor in a Punjabi language through an interpreter. The judge concluded that the appeal must be dismissed. The appellant, dissatisfied with the application applied for leave to remain to the Upper Tribunal which was granted.
The Hearing Before Me
8. Mr Jafferji on behalf of the appellant drew my attention to paragraph 39 of the determination, where the judge said that the appeal could not succeed under the Rules, because the appellant is present in the United Kingdom on a visit visa. The judge found that Appendix FM could not be satisfied and then considered Article 8 outside the Immigration Rules. However, submitted Mr Jafferji, the judge failed to consider Section 117(B)(6) of the Immigration, Asylum and Nationality Act 2006. The appellant's children are each of them British subjects. The judge failed to consider whether it would be reasonable to expect them as British citizens to leave the United Kingdom and return to Pakistan with their mother.
9. The judge accepted that the children were British citizens and have the right to remain in the United Kingdom, but went on to find that they could live satisfactorily with their father even though their best interests would lie with their being with their mother, with whom they had lived for the whole of their lives. Mr Jafferji suggested that the evidence before the judge in the form of letters at paragraphs 10 and 11 of the appellant's bundle from Dr H Kumar, the sponsor's general medical practitioner, was sufficient to raise the question which the judge did not ask, "Is the children's father (the sponsor) capable of providing adequate care for each of the three children bearing in mind their ages and his medical conditions?" The most recent letter from Dr Kumar refers to the sponsor suffering from hypertension, chronic kidney disease stage 3 and gout. He was also reported as having seen the accident and emergency department of Wrexham Park Hospital on 5th October, 2015, for acute joint pains and has been on a reducing dose of steroids. He has been referred to the rheumatology clinic.
10. In any event, suggested Mr Jafferji, the judge would went to consider Zambrano.
11. Mr Jafferji accepted that in her application the appellant had indicated in answer to question 12, that she intended to stay in the United Kingdom for two weeks. He suggested that this did not identify any lack of candour on the part of either the appellant or the sponsor. That was clearly her intention at that time.
12. The determination of Judge Powell, promulgated on 8th April, 2014 in respect of the appellant's visit visa appeal, suggested that the sponsor gave evidence that his wife (the appellant) was not interested in studying or working in the United Kingdom and it was unlikely that she would wish to exchange her lifestyle in Pakistan for the modest lifestyle offered by her husband in this country. The judge also noted that the appellant's three children were not accompanying the appellant to the United Kingdom. They would be looked after by their grandparents whilst she was away. They attended school and it was the sponsor's intention that they would be well educated in private schools in Pakistan. The judge also recorded that the sponsor had been unwell for a time and that the appellant wished to provide him with care. However, the judge noted that he had since recovered and no longer needs care. He simply wanted his wife to visit him in the United Kingdom.
13. Mr Jafferji emphasised that these apparent discrepancies merely highlighted the fact that the parties' intentions changed. He submitted that it was not the case that the parties had deliberately misled the immigration authorities. However, even if there was a lack of candour on her part she entered the United Kingdom with entry clearance lawfully and the question for the judge was whether her removal would cause a breach of Article 8. He was bound to consider Section 117(B)(6) and whether it was reasonable to expect the children to leave the United Kingdom. If it were reasonable then it would be a factor to take into account in the Article 8 balancing exercise. Having considered that question he would then need to consider whether the appellant's British children could remain in the United Kingdom because there is another carer who can adequately care for them.
14. I enquired whether Mr Jafferji was in a position to proceed today in the event that I found an error of law. He told me that he was not and that his instructing solicitors had not complied with directions. He thought that there had been insufficient time.
15. For the respondent Miss Ahmad suggested that paragraph 117B(6) had been considered at paragraph 51. Taking what the judge said at paragraph 27 of the determination where she was unable to accept the sponsor's evidence that he had no one who could support him, and paragraph 51 of the determination where the judge said that she was satisfied that the children could live satisfactorily with their father in the United Kingdom even if their interests lie in being with their mother it is implicit that she was satisfied that the sponsor could, desptie his ailments, look after the three children adequately. She submitted that at paragraph 48 the judge demonstrates that she was considering Section 117.
16. Counsel submitted that there was a clear error at paragraph 46 of the determination where the judge suggested that private and family life had been enjoyed at a time when the appellant's immigration status was precarious. The correct test was whether family life had been formed when the appellant's immigration status was precarious and the answer to that was very clearly, "no". The parties had been married in Pakistan many years beforehand. As to Section 117B(6), this has simply not been considered. It is an important question that should have been asked which has not been. Neither has the judge properly considered whether the three children could be properly looked after. Paragraphs 50 and 51 of the determination give conclusions but do not given the reasons for conclusions. The judge was simply considering the sponsor's need for a carer, not whether the sponsor himself could look after three young children.
17. At paragraph 48 the judge says that there was no evidence that the appellant could meet the English language test or the financial requirements of Appendix FM and so her finding for present purposes must be that she cannot. That, she said, had a bearing on proportionality since they are public interest considerations.
18. Paragraph 48 raises matters which were not in issue in the respondent's refusal. They were raised for the first time at the hearing by the judge. The judge conflated the requirements of the Immigration Rules under Appendix FM with Section 117B.
19. I reserved my determination.
20. Having carefully examined what the appellant said in her application, I am satisfied that she has deliberately sought to conceal the true intentions behind the visit, as has the sponsor. The appellant's immigration history shows the previous attempts the appellant has made to come to the UK. She clearly stated in her visa application that she intended to visit the United Kingdom for two weeks. She gave details of her three children and indicated that they would not be travelling with her. She suggested that the children would be supported by "spouse/partner or other family member". She indicated that she had a monthly income from employment or occupation of between 45,000 and 50,000 rupees per month and additionally received support from family members and other dependants of 15,000 rupees per month.
21. The appellant indicated that she had her own house and that her husband had agricultural and commercial property generating income for her and the children who are in education in Pakistan. The appellant said that she had a brother in the United Kingdom and "many more other" family members. In Part 8 of the application she indicated that she was leaving her children in Pakistan while making a short visit to the United Kingdom and that her mother would look after the children.
22. When the appellant's visit visa appeal was heard she noted that the three children were to be looked after while she was away and that they attended school and that it was the sponsor's intention that they would be educated in private schools in Pakistan. She accepted the sponsor's evidence that his wife was not interested in studying or working in the United Kingdom and that it was unlikely that she would wish to exchange her lifestyle in Pakistan for the modest lifestyle she had in the United Kingdom. The judge was led to believe that the appellant enjoyed good circumstances in Pakistan, "with servants and close family members nearby". She recorded that although the sponsor was unwell for a time and his wife wished to provide him with care, he has since recovered and no longer needs care.
23. I have no doubt that the appellant and sponsor have given answers which were deliberately designed to mislead and hide the true intention of the sponsor which was to come to the UK for settlement.
24. I bear in mind that the issue is whether it would be reasonable to expect the appellant's three British children to leave the United Kingdom.
25. Distasteful though it is that the appellant should benefit from her deceit, I am mindful that the actions of their parents should not be visited on the children. They are entirely innocent and it is their interests that I am concerned with. I have concluded that in all the circumstances it would not be reasonable to expect the appellant's three children to leave the United Kingdom and travel with her to Pakistan. They have been in the United Kingdom for two years now and I have no doubt that they have settled in at school and made friends. They are entitled as British subjects to continue to enjoy their rights to live in the United Kingdom and everything that that brings with it.
26. The making of the decision by First-tier Tribunal Judge Whitcombe did involve a material error on a point of law. The judge simply failed to consider and apply Section 117B(6). I set aside the judge's decision. I have concluded on the basis of the foregoing that this appeal should be allowed.
27. No anonymity order was requested or is made. I have, however, simply referred to the appellant's children as being, "A", "B", and "C".

Richard Chalkley
Upper Tribunal Judge Chalkley