Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13110/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6th October 2016
On 18th October 2016

Before

UPPER TRIBUNAL JUDGE BLUM

Between

the Secretary of State for the Home Department
Appellant
and

ABIODUN [A]
(anonymity direction NOT MADE)
Respondent

Representation:
For the Appellant: Mr S Walker, Home Office Presenting Officer
For the Respondent: No Legal Representative (the Respondent appeared in person)

DECISION AND REASONS

1. This is the Secretary of State's appeal against the decision of Designated Judge of the First-tier Tribunal J G Macdonald whose decision promulgated on 14th April 2016 allowed the human rights claim of Mr Abiodun [A] (hereinafter 'the Claimant'), against a decision of the Secretary of State, dated 13th March 2015, refusing his application for leave to remain on human rights grounds.

2. The Claimant is a national of Nigeria. He first entered the United Kingdom on 29th August 2012 pursuant to a Tier 4 (General) Student entry clearance. This was valid until 29th December 2014.

3. On 13th September 2014 the Claimant married Mrs [O]. She, although of Nigerian extraction, is a British citizen born in the United Kingdom. On 29th October 2014 the Claimant submitted a further Tier 4 (General) Student application but this was refused on 23rd December 2014. The Claimant did not avail himself of the option of seeking an administrative review of that decision. Rather, on 10th February 2015 the Claimant made an application for leave to remain based on his family and private life under the ten year route.

4. The Secretary of State refused the application on several bases. Firstly, the Secretary of State did not find that the Suitability requirements contained in the relevant part of Appendix FM had been met. This was because the Claimant had been invited for an interview on 19th December 2014 which he failed to attend. The Secretary of State therefore refused the application on the basis that the suitability requirements specifically S-LTR.1.7 had not been met. The Secretary of State thereafter considered whether the Claimant met the requirements of Appendix FM. Given that he had not met the Suitability requirements the Secretary of State concluded that the Claimant could not avail himself of the exception offered in EX.1 of the Immigration Rules. The Secretary of State was of the view that the Claimant could not succeed under his private life pursuant to paragraph 276ADE, with particular reference to (vi). The Secretary of State then went on to consider whether there were 'exceptional circumstances' sufficient warrant a grant of leave to remain outside the immigration rules in accordance with Article 8 principles but concluded that there were not.

5. The Claimant was able to appeal this decision and his appeal was heard on 31st March 2016. On that date the Claimant's wife was approximately 33 weeks pregnant and was expected to give birth on 18th May 2016. The judge found (at paragraph 30 of his decision) that the Home Office had not proved that the invitation for an interview had been received by the Claimant. The full paragraph reads:
"Essentially the Appellant decided to stay on in the United Kingdom so that his family life could continue here. In all the circumstances the Home Office have not proved that he received an invitation from them to attend an interview and therefore that part of the Home Office case against the Claimant in terms of suitability falls away. Even if the letter was sent it seems clear enough from the evidence that the Claimant did not receive it but as I have said nothing turns on this."
6. The judge then went on to consider whether the Claimant met the requirements of Appendix FM. The judge noted at paragraph 33:
"Given the late-on pregnancy of the Claimant's wife and notwithstanding the lack of any medical evidence it seems to me inconceivable that a person at her late stage of pregnancy could be expected to be removed to Nigeria as at the date of the hearing."
7. Then, at paragraph 34, the judge stated:
"I cannot say that there are any other reasons for concluding that there are insurmountable obstacles and none were argued before me. There is nothing in the Rules to govern this situation and each case must be judged on its own facts. I was not referred to any IDI guidance on how caseworkers should deal with a case of this nature."
8. The judge allowed the appeal on the basis that there were insurmountable obstacles to the relationship continuing outside the UK because the Claimant's wife's pregnancy prevented her from flying to Nigeria. The judge then made reference (at paragraph 35) to s.117B(6) of the Nationality and Immigration Act 2002 (hereinafter 'the 2002 Act'), a self-contained statutory provision governing the relevance of public interest considerations in respect of relationships between individuals who are subject to the Immigration Rules and qualified children (including children who are British or are settled in the UK or have lived here for seven years or more). The judge speculated as to what the situation may be for the Claimant and his wife if the child was born. The judge's decision was, however, primarily premised on the existence of insurmountable obstacles as a result of the wife's pregnancy. He therefore allowed the appeal both under the Immigration Rules and on human rights grounds.

9. The Secretary of State, aggrieved with this decision, sought leave to appeal to the Upper Tribunal. The Grounds of Appeal drafted by the Secretary of State essentially asserted that the judge was not rationally entitled to find the existence of insurmountable obstacles on the basis he did in the absence of any medical evidence suggesting that the Claimant's wife could not travel because of her pregnancy. The Secretary of State also took issue with the judge's reliance on s.117B(6) as the child had not been born when the decision was made. The Secretary of State finally asserted that the judge failed to make a clear finding as to whether the Suitability requirements of Appendix FM were met, criticising the judge's comments that 'nothing turns' on the matter.

10. I have carefully considered the First-tier Tribunal's decision. I am satisfied that the judge did make sustainable findings in relation to the Suitability requirements. At paragraph 30 the judge made a clear finding that the Suitability challenge had not been satisfactorily established by the Secretary of State. It is unfortunate that the judge subsequently said that 'nothing turns' on this because, in fact, a great deal turned on this point. The Claimant would not be entitled to rely on EX.1 if the Suitability requirements were not met. I am however entirely satisfied that the judge did make a finding as to whether the Claimant met the Suitability requirements, one in respect of which he was rationally entitled to reach for the reasons given.

11. I am however persuaded that the judge did materially err in law in concluding that there were insurmountable obstacles, by reason of the wife's pregnancy, preventing the relationship from continuing outside the United Kingdom. There was simply no medical evidence that was capable of entitling the judge to that conclusion. This was not a situation where the judge was entitled to take judicial notice of a particular fact relating to late stage pregnancies. Whilst some airlines may require a doctor's letter for a woman who is more than 28 weeks pregnant to travel, this is by no means universal. There is no general consensus preventing a woman who is pregnant at 33 or 34 week from travelling, and the judge was obliged to consider the appeal based on the factual matrix in existence at the date of the hearing. As the judge was not entitled to find the existence of insurmountable obstacles for the reasons he gave his decision is vitiated by a material error of law. Having informed the parties of my decision I indicated that I would remake the decision after hearing further evidence from the Claimant.

12. In his further evidence the Claimant confirmed that his child, a son, was born on 21st May 2016. The Claimant's wife and child attended the Upper Tribunal hearing and remained throughout at the back of the hearing room. The Claimant confirmed that he lives with his wife and child and he confirmed that his wife is British, a point that was not, in any event, disputed. The Claimant gave details of the interaction that he has with his son including a reference to the child clinging gymnastically to him. The Claimant indicated that his wife was on maternity leave and that she intended to return to her employment with William Hill after a year. He confirmed that he entered the United Kingdom on 29th August 2012.

13. The immigration history that I have set out indicates that the Claimant's leave expired soon after 29th December 2014. He has therefore been as an overstayer since that time. The Claimant had not broken any of the conditions attached to the leave previously granted to him. He had been lawfully resident in the UK albeit with leave in a category that did not lead to settlement.

14. I am satisfied that the Claimant has a genuine and subsisting parental relationship with a British national child. I am satisfied, on the evidence that I have heard, unchallenged by the Home Office, that the Claimant lives with his wife and child. Although I found a material error of law in the First-tier's decision there was no reason for me to go behind the First-tier Tribunal's finding that the Claimant did indeed meet all of the Suitability requirements.

15. Section EX of Appendix FM to the Immigration Rules states:
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 the application; and
(ii) it would not be reasonable to expect the child to leave the UK.
16. There is no issue in relation to the Suitability requirements or the other Eligibility requirements under Appendix FM.

17. In determining whether or not it would be reasonable to expect the Claimant's young son to leave the UK I take account of the recent Court of Appeal decision in MA (Pakistan) v Upper Tribunal [2016] EWCA Civ 705. This indicated that, when assessing the term 'reasonable' in s.117B(6) of the 200 Act, Courts and Tribunals have to take into account public interest factors. These public interest factors reflect, but are not limited to, the factors contained in the remainder of s.117B. In determining whether it is reasonable for the Claimant to leave the UK when he has a genuine and subsisting parental relationship with a British national child I take account of the factors listed in Section 117B. I note that there is the public interest in maintaining firm immigration control. I note additionally that the Claimant has been unlawfully present in the UK since the beginning of 2015 (when his leave, as extended by s.3C of the Immigration Act 1971, expired). I note that the Claimant has a good grasp of English and that he is financially independent to the extent that he is supported by his wife, but these are, at the most, neutral factors (AM (S 117B) Malawi [2015] UKUT 0260 (IAC)).

18. In assessing what is reasonable I must also take into account other relevant factors. One such factor is the Secretary of State's own guidance on the circumstances in which it would be reasonable to expect a British citizen child to leave the UK. At the beginning of the 'remade' hearing I gave both parties a copy of an extract from the Immigration Directorate Instructions (IDIs) 'Family Migration: Appendix FM Section 1.0B entitled "Family Life (as a Partner or Parent) and Private Life: 10-Year Routes"'. I will refer to this document as the IDI. This was published in August 2015 and was current at the date of the Tribunal's decision. It remains current at the date of the error of law hearing and this rehearing.

19. In her guidance the Secretary of State has considered the circumstances in which the parent of a British citizen child could be reasonably required to leave the United Kingdom. The Secretary of State's stated position is relevant to my assessment of what is reasonable within Appendix FM, EX.1 because the Secretary of State is custodian of the public interest and her identification of what is reasonable in the public interest must be a very relevant factor. The relevant section of the IDI is 11.2.3 under the heading "Would it be unreasonable to expect a British citizen child to leave the UK". The paragraph first makes reference to the CJEU judgment in Zambrano (Case 34-09). It then states:
"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.
In such cases it will usually be appropriate to grant leave to the parent or primary carer to enable them to remain in the UK with the child, provided that there is satisfactory evidence of a genuine and subsisting parental relationship.
It may however be appropriate to refuse to grant leave where the conduct of the parent or primary carer gives rise to considerations of such weight as to justify separation if the child could otherwise stay with another parent or alternative primary carer in the UK or in the EU.
The circumstances envisaged could cover amongst others:
criminality falling below the thresholds set out in paragraph 398 of the Immigration Rules;
a very poor immigration history, such as where the person has repeatedly and deliberately breached the Immigration Rules.
In considering whether refusal may be appropriate the decision maker must consider the impact on the child of any separation. If the decision maker is minded to refuse, in circumstances where separation would be the result, this decision should normally be discussed with a senior caseworker and, where appropriate, advice may be sought from the Office of the Children's Champion on the implications for the welfare of the child, in order to inform the decision."
20. I have taken account of the Secretary of State's policy. There is no evidence that the Claimant has engaged in any criminality. Whilst the Claimant has remained unlawfully in the United Kingdom since the end of 2014 (or the very beginning of 2015) it cannot realistically be said that his has a very poor immigration history within the terms anticipated in the Secretary of State's policy. I have attached appropriate weight to the Secretary of State's policy in determining whether it is reasonable to expect the Claimant's British citizen child to leave the UK in accordance with EX.1. Having holistically considered the public interest factors in s.117B as outlined above, in my judgment the Claimant's child cannot be reasonably expected to leave the United Kingdom in light of the Secretary of State's written policy and the absence of any criminality of a very poor immigration history by the Claimant.

21. In these circumstances I am satisfied that the Claimant does meet the requirements of the Immigration Rules (EX.1). The appeal is therefore allowed on the basis that the Claimant does meet the requirements of the Immigration Rules.

Decision

The appeal is allowed under the immigration rules (Appendix FM)

No anonymity direction is made.

Signed Date

Upper Tribunal Judge Blum 17 October 2016