Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/12341/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 August 2016
On 10 August 2016

Before

UPPER TRIBUNAL JUDGE WARR

Between

NAZIA JAVED
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr R Ahmed, Counsel instructed by Mayfair Solicitors
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Pakistan born on 11 January 1980. She arrived in this country on 26 February 2007 as a student and has remained as a student or dependant and her latest leave expired on 7 February 2015. She made an application on the basis of her family life as a partner of a settled person on 6 February 2015. The application was refused by the respondent on 19 March 2015. The appellant appealed and her appeal came before a First-tier Judge on 8 December 2015. The appellant has three children and a preliminary issue was raised at the hearing by the representative then appearing on behalf of the appellant. It was submitted that the three children had now been registered as British citizens. It was submitted that the relevant date was the date of hearing and under the respondent's policy British children should not be expected to leave the UK in accordance with the decision of Zambrano [2011] INLR 481 CJEU.

2. Reliance was placed on Section 117B of the 2002 Act and it was submitted that the appellant had a good immigration history, spoke English and was literate. The appellant was financially independent.

3. The judge found that the appellant had failed to provide any reliable evidence of insurmountable obstacles and merely relied upon the children's new status as British citizens to resist the Secretary of State's decision. The judge did not consider it would be unreasonable to expect the appellant's children to leave the UK with their parents. The judge noted that the appellant had not given evidence at the hearing and there was no other reliable evidence to assess her language ability and he was unable to make reliable findings of fact in relation to Section 117B for these reasons. Any interference with Article 8 was proportionate.

4. The judge noted in the concluding paragraphs of his determination as follows:

"41. The appellant's spouse is now present and settled in the UK and their children have been registered as British citizens. The respondent had the opportunity to withdraw her decision at the hearing in light of the material change in circumstances but chose not to do so.

42. It is reasonable to expect the appellant to make the appropriate paid application for further leave to remain which will give her the opportunity to provide reliable evidence to support her current claimed circumstances."

5. Mr Ahmed drew my attention to the case of Sanade [2012] UKUT 00048 (IAC). The Tribunal in that case referred to ZH (Tanzania) v Secretary of State [2011] UKSC 4 noting what Lord Hope had said at paragraph 41:

"The fact of British citizenship does not trump everything else. But it will hardly ever be less than a very significant and weighty factor against moving children who have that status to another country with a parent who has no right to remain here, especially if the effect of doing this is that they will inevitably lose those benefits and advantages for the rest of their childhood."

Furthermore, the judge had erred in concluding that the appellant could not speak English since the appellant had said on the application form that she could speak both Urdu and English and no challenge had been made to that claim. The point had not been taken in the decision letter or at the hearing. It was unfair for the judge to take a point.

6. Mr Ahmed then referred to Treebhawon [2015] UKUT 00674 (IAC) where the Tribunal had considered Section 117B(6). The Tribunal had stated at paragraph 20 as follows:
"In section 117B(6), Parliament has prescribed three conditions, namely:
(a) the person concerned is not liable to deportation;
(b) such person has a genuine and subsisting parental relationship with a qualifying child, namely a person who is under the age of 18 and is a British citizen or has lived in the United Kingdom for a continuous period of seven years or more; and
(c) it would not be reasonable to expect the qualifying child to leave the United Kingdom.
Within this discrete regime, the statute proclaims unequivocally that where these three conditions are satisfied the public interest does not require the removal of the parent from the United Kingdom. Ambiguity there is none."

It was submitted that paragraph 41 of the decision was not adequately reasoned. Further, as he had submitted at the hearing before the First-tier Judge, the position under Article 8 should have been considered on the facts as they appeared at the date of hearing.

7. Mr Tarlow having considered the matter agreed that it would be appropriate in this case for the caseworker to consider the matter in the light of the present facts. I note that the submission that the facts should be considered at the date of the hearing in relation to Section 117B(6) (as distinct from the rules) appears to be supported by paragraph 13 of the decision of the Court of Appeal in MA (Pakistan) & Ors, v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705 where the point was conceded by the Secretary of State:

"Some preliminary observations can be made about rule 276ADE(iv) and section 117B(6). First, they are similarly framed: both require seven years' residence and in both a critical question is whether it would be unreasonable for the child to be expected to leave the UK. Second, the concept of seven years' residence may not be calculated in precisely the same way in the two provisions. Rule 276ADE(1) states in terms that the period must be assessed as at the date of the application. However, the Secretary of State conceded that as a result of section 85(4) of the 2002 Act, the relevant date for the purpose of section 117B is the later date when the court is making its determination. We have acted on the assumption that this is correct. Third, only the child can apply under rule 276ADE (iv), whereas section 117B is concerned with article 8 applications under which both the child and the parents can apply. Fourth, rule 276ADE is concerned with applications made on the basis of private life, whereas claims under article 8 may rely on both private and family life. Fifth, it is in my judgment a legitimate assumption that the question whether it is reasonable to expect the child to leave should be approached in the same way in each context, and no party has sought to contend otherwise." (per Elias, L.J.)

8. It was accepted that the judge's decision was materially flawed in law and that the respondent should have the opportunity to consider the position given that the children had been registered as British citizens.

Notice of Decision

9. By agreement between the parties it is accepted that this is a case where the respondent wishes to revisit the decision in the light of the fact that the children had been registered as British citizens. Both sides agreed that there was power to remit in this case and it is not necessary in the premises to set out the somewhat tortuous commencement and transitional provisions of the 2014 Act referred to by the Tribunal in Nkomo (Deportation: 2014 rights of appeal) [2016] UKUT 285 (IAC). The appeal is allowed to the extent that it is remitted to the Secretary of State to reconsider the matter as Mr Tarlow requested.

Anonymity Direction

9. The First-tier Judge made no anonymity direction and I make none.

Fee Award

10. The First-tier Judge made no fee award and in the circumstances of this case I do not consider it would be appropriate to make one.

Signed Date 9 August 2016

G Warr
Judge of the Upper Tribunal