Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/12694/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 15th November 2016
On 16th November 2016

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

Y Y
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Khan, Counsel instructed by Kothala & Co Solicitors
For the Respondent: Ms A Fijiwala, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The appellant is a citizen of China born on 16th April 1988. He arrived in the UK as a Tier 4 student migrant and had leave in this capacity until 3rd May 2014. He applied on 29th April 2014 for leave to remain on the basis of his relationship with a Chinese national with limited leave to remain who has a British citizen child from a previous relationship. This application was refused on 18th March 2015. His appeal against the decision was dismissed by First-tier Tribunal Judge Hembrough in a determination promulgated on the 27th May 2016.
2. Permission to appeal was granted by First-tier Tribunal Judge Shimmin on 17th October on the basis that it was appropriate to extend time, as the application was lodged 3 days out of time, and because it was arguable that the First-tier judge had erred in law in finding the appellant lacked credibility and in assessing that it would be proportionate to require family life to take place in China.
3. The matter came before me to determine whether the First-tier Tribunal had erred in law.
Submissions- Error of Law & Remaking
4. The appellant asserts that as his partner has been granted leave to remain in the UK until 19th December 2016 by the respondent because she is the parent and primary carer of a British child (and he would otherwise have to locate outside of the EU) then it cannot be rational or legally correct for the First-tier Tribunal to find that the child can reasonably be expected to leave the UK, and thus to find it is proportionate to the acknowledged family life between the appellant and his partner to expect the appellant to leave the UK. The decision fails to give appropriate weight to the British citizenship of this child and the child's entitlement to have the benefits of that citizenship. This is particularly the case as the appellant is not an immigration or criminal offender and there are no deportation proceedings.
5. It is also submitted by the appellant that the decision that the appellant and his partner were not credible witnesses because they gave consistent evidence to the Tribunal in cross-examination, about contact between the appellant's partner's child and his biological father, on the basis that it was "contrived and well-rehearsed" is also irrational. It was not contained in the witness statements so had not been obviously "planned", and was a simple history of the boy being dropped at the park for the day to play with his father and being returned to the appellant and his partner in the evening. This was an important factor as the contact with the partner's son's biological father, who would not agree to his son's removal to China, is important in making it further unreasonable to require the child to leave and thus in qualifying the appellant to remain in the UK under s.117B(6) of the Nationality, Immigration and Asylum Act 2002. There were good reasons why no letter was provided by the child's father about this contact, as it was clear from paragraph 16 of the decision that the appellant's partner was not on good terms with him.
6. The respondent submits that the decision of the First-tier Tribunal is not irrational. It is accepted that the appellant cannot meet the family life Immigration Rules (as his partner does not have indefinite leave to remain/ is not a British citizen), and the First-tier Tribunal finds that family in China will support the appellant and his partner as they do in the UK. S.117B of the Nationality, Immigration and Asylum Act 2002 is considered. The British citizenship of the appellant's partner's child is not a trump card. The credibility findings were also rationally open to the First-tier Tribunal in the absence of any evidence from the biological father of the British citizen child about contact, and given the similarity of evidence at paragraphs 23 and 28 of the decision. The ultimate and central decision of whether it was "reasonable" to require the partner's British citizen son to leave under s.117B (6) of the Nationality, Immigration and Asylum Act 2002 is properly considered by reference to all the facts. MA (Pakistan) & Ors v Upper Tribunal (Immigration and Asylum Chamber) & SSHD [2016] EWCA Civ 705 means, as is clear from paragraph 45 of that case, that the wider public interest is considered when looking at reasonableness under s.117B(6) of the 2002 Act.
7. At the end of the hearing I informed the parties that I found the First-tier Tribunal had erred in law both with respect to the application of s.117B(6) of the Nationality, Immigration and Asylum Act 2002 and the credibility findings. Both parties confirmed that they had no further submissions to make with respect to re-making and that they were happy for me to re-make my decision on the basis of the evidence as before the First-tier Tribunal. The appellant and his partner, who had attended the hearing before the Upper Tribunal, were not therefore called to give evidence. I reserved my decision on this re-making.
Conclusions - Error of Law and Re-making
8. The First-tier Tribunal has erred in law as the decision is not lawfully in line with s.117B (6) of the Nationality, Immigration and Asylum Act 2002 when considering the proportionality of the appellant's removal outside of the Immigration Rules.
9. The First-tier Tribunal accept that the appellant has assumed parental responsibility for his partner's British citizen child at paragraph 52. It is also the finding of the First-tier Tribunal that the British citizen's child's natural father did not have parental responsibility for him and does not make major decisions. This is the case put forward by the appellant and his partner. In these circumstances it was clearly open to the First-tier Tribunal to find, as they did, that the appellant had taken on this role, see R (on the application of RK) v Secretary of State for the Home Department (s.117B(6); "parental relationship") IJR [2016] UKUT 00031 (IAC).
10. The First-tier Tribunal accept that this child is a British citizen and therefore a qualifying child.
11. The Court of Appeal in MA (Pakistan) & Ors v Upper Tribunal & SSHD [2016] EWCA Civ 705 at paragraph 49 (the concluding paragraph of the section regarding the application of the reasonableness test) find that the correct construction of s.117B(6) of the Nationality, Immigration and Asylum Act 2002 is that if the child is British or has been in the UK for seven years then this "establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary". This was not the starting point of the First-tier Tribunal and hence they erred in law.
12. I find that there are no powerful reasons to the contrary to mean that it was reasonable to require the partner's British citizen child to leave in this case, and thus that the appellant is entitled to succeed in his appeal on Article 8 ECHR grounds outside of the Immigration Rules by application of s.117B(6) of the Nationality, Immigration and Asylum Act 2002. I set out my reasons below.
13. The appellant is not an overstayer, there is no evidence he has breached his conditions or committed any criminal offences. It is accepted that he has a genuine family life relationship with his partner, as is evidenced by the fact that they have their own child as well as caring for the one from his partner's previous relationship. It is clear his partner has been granted leave to remain by the respondent as it would not be reasonable to expect her child to leave the UK due to his British citizenship. I find it is in the best interests of this child to remain in the UK, the country of his nationality where he has lived all of his life and where he attends school. I find that that the appellant and his partner are able to support themselves financially through work which they are entitled to take and some additional financial support from their families. They have their own accommodation they are entitled to occupy. I find that they will not be a burden on taxpayers. I also find that the appellant has an ability to speak English, although he chose to give evidence to the Tribunal in his native Mandarin, as he has been granted leave as a Tier 4 student migrant by the respondent and obtained a BTEC HND Diploma in Travel and Tourism Management from a college in the UK in March 2014. It follows that I find that the appellant is in a good position to integrate in the UK.
14. I find that the credibility findings of the First-tier Tribunal are flawed with respect to the evidence of contact with the British citizen child's biological father. It was not rationally open to the First-tier Tribunal to find the appellant and his partner were not credible witnesses with respect to the evidence of contact between the partner's British son and his father on the basis set out in the decision. As submitted by the appellant the evidence at paragraphs 16 and 25 is that both witnesses said simply that the child's natural father saw him every two months or so, when he spent time in the park with him. It is very hard to see how rationally this small and plausible contact arrangement could be said to be not credible, as "contrived and well-rehearsed" on the basis that the matters were put in the same order and the same "terminology" was used. This is all the more so given that the evidence was given through a Mandarin interpreter, who clearly may have chosen the same "terminology" when translating slightly different words with the same meaning.
15. I overturn this finding, and substitute a finding that the contact took place as claimed by the witnesses, and that this adds a further issue making it unreasonable to expect the British citizen child to leave the UK as it would deny him this periodic contact with his biological father which I find is in his best interests to maintain.

Decision:

1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

2. I set aside the decision of the First-tier Tribunal.

3. I re-make the decision in the appeal by allowing it on the basis that decision is not in accordance with the UK's obligations under Article 8 ECHR.

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) we make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant or any member of his family. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

Signed: Fiona Lindsley Date: 16th November 2016
Upper Tribunal Judge Lindsley

Fee Award Note: this is not part of the determination.

In the light of my decision to re-make the decision in the appeal by allowing it, I have considered whether to make a fee award. I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals. I have decided to make no fee award as none was requested by the appellant's representative.

Signed: Fiona Lindsley Date: 16th November 2016
Upper Tribunal Judge Lindsley