Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number IA/12764/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower
Decision and Reasons Promulgated
On 14th February 2017
On 3rd March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE PARKES

Between

MARLON MARIO WILSON
(ANONYMITY DIRECTION NOT MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Ms J Rothwell (Counsel, instructed by J M Wilson, Solicitors)
For the Respondent: Mr M Diwnycz (Home Office Presenting Officer)

DETERMINATION AND REASONS
1. The Appellant applied for LTR on article 8 grounds. The application was refused by the Respondent and the Appellant appealed. The appeal was heard by First-tier Tribunal Judge Grimmett on the 26th of April 2016 who allowed it for the reasons given in a decision promulgated on the 10th of May 2016. The Respondent sought permission to appeal to the Upper Tribunal which was granted by Judge Manuell on the 1st of September 2016.
2. The Appellant's immigration history is set out in the Tribunal papers and summarised in the decision of Judge Grimmett. The Appellant has never been in the UK lawfully and relied on family life with his daughter with whom he had recently established contact following proceedings in the Family Courts. At paragraph 30 the Judge, for the reasons given in the preceding paragraphs, found that the Appellant did not meet the Immigration Rules. At paragraph 34 the Judge found that it would not be reasonable to expect his child to leave the UK.
3. The Respondent sought permission to appeal arguing that the Judge had erred in relation to the assessment under article 8 and that there were no compelling circumstances that would justify a grant of leave outside the rules. With regard to section 55 the Appellant's relationship with his son had only started 15 months earlier and had considered the wrong criteria when finding it was not reasonable to expect the child to leave the UK. Finally it was argued that the Judge had misdirected herself under section 117B as the matter did not hinge solely on section 117B(6), it was argued that the Appellant's immigration and criminal offending made his removal proportionate. In granting permission Judge Manuell the wider interests of society had not been considered referred to the case of MA (Pakistan) [2016] EWCA Civ 705.
4. The submissions are set out in the Record of Proceedings. Both parties maintained their respective positions with the Appellant's counsel stressing the findings made in relation to the contact with his son and how that has progressed. She also referred to Treebhowen and submitted that MA (Pakistan) did not assist the Respondent.
5. In the course of argument I raised the earlier decision of Sanade which is to the effect that in circumstances such as these there is no requirement that the child should leave the UK as they can stay in the UK with the remaining parent. Since the hearing the Supreme Court issued the decision in Agyarko [2017] UKSC 11. On this point the court referred to the case of Dereci [2011] ECR 1-11315 where refusal of residence permit to a person unlawfully in Austria was upheld even though he had married and had 3 children, refusal would not require the children to leave Austria. That approach was not questioned and applied by analogy in paragraph 68 of the judgment.
6. It is not in question that the Appellant in this appeal has a poor immigration history, having entered the UK by deception and never having had lawfully granted leave and aggravated by criminal offending. His relationship with his son has only relatively recently been established and his role in his son’s life is less than would be obtained by living in the same household.
7. The Judge found that it would not reasonable to expect his son to leave the UK and in those circumstances to have elevated his best interests to a determinative factor which they did not enjoy. The Judge, whilst rejecting the Secretary of State’s more serious allegations about the Appellant, appears to have overlooked the illegal nature of his time in the UK and the fact that everything has been established on that foundation.
8. The Judge did not identify what was compelling about the circumstances that justified a grant of leave outside the Immigration Rules and in those circumstances, and with the observations above, erred in the approach taken. Section 117B(6) is not determinative and in treating it as such, and erroneously, the Judge erred such that the decision cannot stand. As agreed at the hearing in the event of such a finding the case is to be remitted to the First-tier Tribunal for re-hearing by a Judge other than Judge Grimmett.

CONCLUSIONS
The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
I set aside the decision.
The appeal is remitted to the First-tier Tribunal for re-hearing on all issues with no findings preserved, to be heard by a Judge other than Judge Grimmett.
Anonymity has not been ordered and I make no direction.

Fee Award
In finding that the Judge erred and in remitting the I make no fee award which is to be decided by the First-tier Tribunal on the conclusion of the re-hearing.

Signed:

Deputy Judge of the Upper Tribunal (IAC)

Dated: 3 March 2017