Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/12163/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10th October 2016
On 13th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

Mukhtar Samina
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss A Radford of Counsel instructed by Turpin & Miller Solicitors
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction and Background
1. The Appellant appeals against a decision of Judge Lawrence of the First-tier Tribunal (the FTT) promulgated on 4th May 2016.
2. The Appellant is a female citizen of Pakistan born 7th May 1980. On 7th July 2011 the Appellant entered the United Kingdom as the partner of her husband, a Tier 4 Migrant. She had leave which was valid until 30th April 2014.
3. On 30th April 2014 the Appellant applied for further leave to remain as a dependant of a Tier 4 Migrant. On 8th December 2014 she applied by letter, asking that her application to remain as the dependant of a Tier 4 Migrant be varied to an FLR(FP) application.
4. The application was refused on 11th March 2015. The Respondent considered the application under the partner route of Appendix FM and found that the application could not succeed because the Appellant's husband was not in the United Kingdom either as a British citizen, or as a person present and settled in this country, or as a person with refugee leave or with humanitarian protection. The Respondent took the view that because the Appellant had failed to meet the eligibility requirements, she could not benefit from the criteria set out at EX.1.
5. The Respondent considered the application under the parent route, and found that the Appellant failed to qualify because she did not have sole parental responsibility for her children and she lived with her husband.
6. The Respondent considered the Appellant's private life under paragraph 276ADE(1) noting that she had lived in the United Kingdom since 2011. The Respondent did not accept that there would be very significant obstacles to the Appellant's integration into Pakistan, and therefore found that paragraph 276ADE(1) did not assist the Appellant's application.
7. The Respondent considered Article 8 of the 1950 European Convention on Human Rights (the 1950 Convention) outside the Immigration Rules and did not accept that there were any exceptional circumstances that would justify granting leave to remain outside the Immigration Rules. The Respondent accepted that the Appellant and her husband had two children (a daughter born 27th February 2013 and a son born 14th November 2014) and when considering the best interests of the children, concluded that their best interests would be served by the children returning to Pakistan as a family unit and continuing to enjoy a family life in that country.
8. The appeal was heard by the FTT on 11th April 2016. It was accepted that the Appellant's husband was granted indefinite leave to remain in the United Kingdom on 17th March 2015 and therefore had settled status from that date. It was also accepted that on 25th March 2016 the Appellant's son was registered as a British citizen (the actual certificate is dated 24th March 2016, the accompanying letter being dated 25th March 2016).
9. The FTT dismissed the appeal. The FTT found that the Appellant's husband was not a settled person at the date of application and therefore the appeal could not succeed under the partner route of Appendix FM. The FTT found that the documentary evidence to confirm that the financial requirements of the Immigration Rules were satisfied had to be submitted with the application.
10. The FTT found that the appeal could not succeed under the parent route of Appendix FM as the Appellant did not have sole responsibility for her children, although it appears that this was not in fact pursued before the FTT.
11. The FTT declined to consider EX.1., commenting that it was not a freestanding provision, and the Appellant failed to meet the eligibility requirements of Appendix FM, and therefore EX.1. could not be considered.
12. The FTT found that the appeal could not succeed with reference to paragraph 276ADE(1) for the reasons given by the Respondent.
13. The FTT recorded that no evidence had been heard from the Appellant or her husband, although they had submitted witness statements, but (paragraph 18) "without subjecting the contents of that statement to scrutiny I am unable to attach any weight to them."
14. With reference to Article 8 outside the Immigration Rules, the FTT did not find any exceptional circumstances which would justify considering Article 8 outside the Immigration Rules.
15. The Appellant applied for permission to appeal to the Upper Tribunal, relying upon five grounds which are summarised below.
16. The first ground was that the FTT erred in law by declining to consider the appeal under the partner route because the application could not have succeeded at the date that it was made. It was contended that the FTT should have considered the position at the date of hearing.
17. The second ground was that the FTT erred in finding that the Appellant needed to demonstrate that she satisfied the financial requirements. It was contended that because the Appellant was relying upon R-LTRP(a), (b) and (d) there was no need to satisfy either the financial or English language requirements.
18. The third ground was that the FTT erred in failing to consider EX.1.
19. The fourth ground was that the FTT erred by failing to consider Article 8 outside the Immigration Rules, and failed to take into account sections 117A - D of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act).
20. The fifth ground was that the FTT had erred by way of procedural unfairness and irrationality. The FTT declined to give any weight to the evidence of the Appellant and her husband contained in signed witness statements because this had not been subjected to scrutiny. It was contended that both had attended to give oral evidence and the Presenting Officer indicated that she did not wish to cross-examine them. It was submitted that the FTT had therefore requested that the hearing proceed on submissions only, and Miss Radford submitted a witness statement confirming this.
21. Permission to appeal was granted by Designated Judge Macdonald in the following terms;
"The Appellant is a national of Pakistan whose appeal was dismissed by First-tier Tribunal Judge Lawrence in a decision promulgated on 4th May 2016. The grounds of application say that the judge was wrong to conclude that the Appellant needed to meet the requirements of the Immigration Rules at the date of application; he misdirected himself in law as to the need to meet the financial requirements, he failed to consider the material questions under Appendix FM (paragraph EX.1.), failed to apply section 117A - D of the 2002 Act and irrationally declined to give weight o the witness statements.
It seems to me the grounds may have merit. This was an in-country appeal and therefore it is arguable that the material date was the date of hearing. The other grounds are also arguable particularly under section 117B(6) of the Act. It is also very unclear why the judge declined to give weight to the witness statements. Permission to appeal is granted on all grounds."
22. Permission to appeal was granted on 16th September 2016 and on 27th September 2016 the Respondent lodged a response pursuant to rule 24 of The Tribunal Procedure (Upper Tribunal) Rules 2008 contending that the FTT directed itself appropriately. It was submitted that the FTT decision disclosed no material errors of law.
23. Directions were subsequently issued making provision for there to be a hearing before the Upper Tribunal to ascertain whether the FTT decision contained an error of law such that it should be set aside.
The Upper Tribunal Hearing
24. At the commencement of the hearing Mr Whitwell indicated that he did not rely on the rule 24 response, and accepted that the FTT decision contained material errors of law as outlined in the grounds contained within the application for permission to appeal.
25. I indicated that I therefore did not need to hear from Miss Radford as to error of law, as I found that the decision of the FTT did contain material errors of law as outlined in the grounds of application, read together with the grant of permission. The decision of the FTT was set aside.
26. Both representatives agreed that there was no need for a further hearing, and the decision could be re-made by the Upper Tribunal, based upon the evidence that had been before the FTT.
27. I reserved my decision.
My Conclusions and Reasons
28. In relation to the Immigration Rules, the burden of proof is on the Appellant, and the standard of proof is a balance of probability.
29. I have taken into account all the documentation that was before the FTT. I have considered the Respondent's bundle which was not indexed or paginated, and the Appellant's bundle comprising 127 pages, and the skeleton argument produced on behalf of the Appellant that was before the FTT.
30. The factual matrix is that the Appellant arrived in the UK on 11th July 2011 with leave to remain until 30th April 2014 as the dependant of her husband, a Tier 4 Migrant. The couple have two children, a daughter born 27th February 2013, and a son born 14th November 2014. The Appellant made an in time application for further leave to remain. On 17th March 2015 the Appellant's husband was granted settled status, and on 24th March 2016, her son was granted British citizenship.
31. The appeal firstly has to be considered with regard to the provisions of section R-LTRP which sets out the requirements for limited leave to remain as a partner and which is set out below:
R-LTRP.1.1. The requirements to be met for limited leave to remain as a partner are -
(a) the applicant and their partner must be in the UK;
(b) the applicant must have made a valid application for limited or indefinite leave to remain as a partner; and either
(c) (i) the applicant must not fall for refusal under section S-LTR: Suitability leave to remain; and
(ii) the applicant meets all of the requirements of section E-LTRP: Eligibility for leave to remain as a partner; or
(d) (i) the applicant must not fall for refusal under section S-LTR: Suitability leave to remain; and
(ii) the applicant meets the requirements of paragraphs E-LTRP.1.2-1.12. and E- LTRP.2.1.; and
(iii) paragraph EX.1. applies.
32. The Appellant's application was based upon (a), (b) and (d).
33. The Respondent did not contend that the application fell for refusal under the suitability requirements. The only relationship requirement that was not satisfied when the refusal decision was made was E-LTRP.1.2 which requires the Appellant's partner to be a British citizen, or a settled person, or in the UK with refugee leave or humanitarian protection.
34. The error made by the FTT was to conclude that the Appellant's husband had to have settled status at the date of application. That is not the case, and the circumstances can be considered at the date of hearing. This has now been accepted by the Respondent.
35. Therefore at the date of the FTT hearing, and at the date of the Upper Tribunal hearing, it is accepted that the Appellant and her husband are in the UK, she has made a valid application for leave to remain as a partner, it does not fall for refusal under section S-LTR, and she satisfies the requirements of paragraphs E-LTRP.1.2. - 1.12., and 2.1.
36. Therefore EX.1. applies and I set out below EX.1.(a):
EX.1. This paragraph applies if
(a) (i) the applicant has a genuine and subsisting parental relationship with a child who-
(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;
(bb) is in the UK;
(cc) is a British citizen or has lived in the UK continuously for at least the seven years immediately preceding the date of application; and
(ii) it would not be reasonable to expect the child to leave the UK; or
37. It is common ground, and accepted by the Respondent, that the Appellant has a genuine and subsisting parental relationship with her son who is a British citizen.
38. The issue is therefore whether it would be reasonable to expect the Appellant's son to leave the UK. Having considered the Respondent's own guidance I find that it would not. The guidance is contained in Appendix FM 1.0 family life (as a partner or parent) and private life: 10-Year Routes August 2015.
39. The guidance indicates at 11.2.3 (page 97 of the Appellant's bundle) 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 where 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."
40. It is further stated that 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.
41. This is not a case involving criminality, and the Appellant does not have a poor immigration history.
42. Therefore, having carefully considered the circumstances of this case, I conclude that EX.1.(a) is satisfied and the appeal is therefore allowed.
43. Because of that finding, it is not necessary to go on and consider Article 8 outside the Immigration Rules. If I had considered Article 8 outside the rules, I would have had to consider the same question pursuant to section 117B(6) which states that in the case of a person who is not liable to deportation, the public interest does not require that person's removal if the person has a genuine and subsisting parental relationship with a qualifying child (either a British citizen or a child with seven years residence) and it would not be reasonable to expect the child to leave the United Kingdom.
Notice of Decision

The decision of the FTT contained an error of law and was set aside.

I substitute a fresh decision. The appeal is allowed pursuant to Appendix FM of the Immigration Rules.

Anonymity

The FTT made no anonymity direction. There has been no request for anonymity made to the Upper Tribunal and I see no need to make an anonymity order.

Signed Date

Deputy Upper Tribunal Judge M A Hall 11th October 2016

TO THE RESPONDENT
FEE AWARD

As the appeal has been allowed I have considered whether to make a fee award. I do not consider it appropriate. When the decision to refuse the application was made, the Appellant's husband did not have settled status, neither was her son registered as a British citizen. There is no fee award.

Signed Date

Deputy Upper Tribunal Judge M A Hall 11th October 2016