Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia132812015

THE IMMIGRATION ACTS

Heard at the Royal Courts of Justice
Decision & Reasons Promulgated
On 7th June 2016
20th June 2016

Before

UPPER TRIBUNAL JUDGE BLUM

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

Chesberth Curtbert Myers
(anonymity direction NOT MADE)

Respondent

Representation:

For the Appellant: Ms Z Ahmed, Home Office Presenting Officer
For the Respondent: Ms M Malhotra of Counsel, Immigration Practitioners

DECISION AND REASONS

1. The appellant in this appeal is the Secretary of State for the Home Department. She appeals against the decision of Designated Judge of the First-tier Tribunal J G Macdonald who, on 8th April 2016, allowed the appeal of Mr Chesberth Curtbert Myers in respect of a decision to refuse his application for leave to remain on the basis of his family and private life, made on 28th January 2015, and a decision to remove him from the UK. The decisions appealed against were made on 23rd March 2015. I shall refer to Mr Myers as the claimant in this decision.

Background

2. The claimant is a citizen of St Vincent and the Grenadines. He met his partner eight years ago in St Vincent. He entered the United Kingdom in 2010 with the intention of joining the British army. The process however was slower than he anticipated and he returned in the same year to St Vincent. On his return his partner, who is a British citizen, fell pregnant. In February 2013 the claimant's partner moved to the United Kingdom. She gave birth to their child on 8th May 2013. The child is a British citizen. The claimant returned to the United Kingdom in March 2013 and was present for the birth of his child. He entered the UK at a visitor and subsequently returned to St Vincent in accordance with the terms of his entry clearance.

3. In July 2014 he again entered the United Kingdom as a visitor. On this occasion however he overstayed and made an application for leave to remain on the basis of his relationship with his partner and his daughter on 28th January 2015. The SSHD did not accept that the claimant was in a genuine and subsisting relationship with his partner because there was said to be no evidence that they had lived together for a period of two years. This is a requirement under Appendix FM of the Immigration Rules. There was said to be no exceptional circumstances outside of the Immigration Rules which, consistent with the right to respect for private and family life under Article 8, would warrant a grant of leave to remain to the claimant under Article 8. It was not accepted that the claimant had a genuine relationship with the child's mother and therefore not accepted that he could have a relationship with his child.

The decision of the First-tier Tribunal

4. In his determination Judge Macdonald found that the claimant and his partner did have a genuine relationship. This finding has not been challenged on appeal. The judge however was of the view that the claimant could not succeed under the Immigration Rules because it could not be shown that there were no insurmountable obstacles to the family's return to St Vincent. This is because the claimant's partner had lived in St Vincent for much of her life and would be familiar with the country. The core of the judge's reasoning can be found from paragraph 36 onwards. At paragraph 36 the judge said:

"However the high point of the appellant's case is what is said in paragraph 117B(6) which sets out that in the case of a person who is not liable to deportation (this is a removal case) the public interest does not require the person's removal where (a) the person has a genuine and subsisting parental relationship with a qualifying child, and (b) it would not be reasonable to expect the child to leave the UK."

The reference to paragraph 117B relates to the Nationality, Immigration and Asylum Act 2002, as incorporated by the Immigration Act 2014.

5. At paragraph 38 the judge stated:

"In terms of 117B(2) the appellant does speak English and given his academic qualifications it is unlikely that he would be a burden on tax payers and better able to integrate into society. His relationship with a qualifying partner has been established at a time when he was here lawfully although he is now an overstayer."

At paragraph 39 the judge stated:

"However 117B(6) seems to me to stand on its own. It is the final part of 117B and reading that Section as a whole Parliament is setting out the terms of the factors that are relevant to the application of Article 8 and is making it clear what should happen in circumstances such as this case. It is not qualified in its terms - if it was intended to be subject to qualification then presumably Parliament would have said so in clear language. The first part of it is readily satisfied as the person has a genuine and subsisting parental relationship with a qualifying child. This is defined in Section 117D of the Act namely a person who is a British citizen who is under the age of 18."

Then at paragraph 40 the judge says this:

"The remaining criterion to be satisfied in terms of Article 8 is whether or not it would be reasonable to expect the child to leave the United Kingdom. The key point here is that the child is a British citizen. It has long been held that there is intrinsic value in being a British citizen for example in terms of education and health and it seems to me that for those reasons it would not be reasonable to expect the child to leave the United Kingdom. It might be added that, as a British citizen, the child cannot be forced to leave the United Kingdom and neither can her mother."

Finally at paragraph 41 the judge stated:

"It therefore seems to me that in terms of Section 117B(6) the fact that the appellant qualifies under this Section is determinative of the appeal under Article 8 as it would not be proportionate to return him to St Vincent given that he qualifies under this Section."

The judge consequently allowed the appeal on human rights grounds.
The grounds of appeal

6. The grounds of appeal as originally drafted took issue with the judge's approach to Section 117B(6). The Secretary of State was of the view that Section 117B(6) did not stand on its own and had to be considered holistically together with the other factors contained in Section 117B. To the extent that the judge's approach followed that set out by the president of the Upper Tribunal in Treebhawon and Others (Section 117B(6) [2015] UKUT 00674 (IAC), it was submitted that Treebhawon was wrongly decided.

7. Headnote (i) of Treebhawon reads:

"Section 117B(6) is a reflection of the distinction which Parliament has chosen to make between persons who are, and who are not, liable to deportation. In any case where the conditions enshrined in Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 are satisfied, the Section 117B(6) public interest prevails over the public interests identified in Sections 117B(1) to 117B(3)."

Headnote (ii) reads:

"Section 117B(4) and (5) are not parliamentary prescriptions of the public interest. Rather, they operate as instructions to courts and Tribunals to be applied in cases where the balancing exercise is being conducted in order to determine proportionality under Article 8 ECHR, in cases where either of the factors in which they identified arises."

8. The First-tier Tribunal Judge who granted permission to appeal to the Upper Tribunal was not impressed with the settled grounds. Even though Treebhawon will be considered by the Court of Appeal in the future it remains good law and the judge was unarguably entitled to rely on it. The judge did however find that the First-tier judge had arguably given insufficient reasons why he found it would be unreasonable to expect the couple's child, who was aged 3, to leave the UK. The grant of permission stated that nationality appeared to be the only reason given by the First-tier Tribunal for the finding that it would not be reasonable for the child to leave the UK, but that of itself was said not to be a trump card.

The Upper Tribunal hearing

9. At the commencement of the hearing I gave both parties a copy of an extract from the Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0b, entitled 'Family Life (as a Partner or Parent) and Private Life: 10-Year Routes' (the IDI). This was published in August 2015 and was current at the date of decision. It remained current at the date of the error of law hearing. There had been some initial discussion between the representatives and a preliminary agreement had been reached that the decision did contain an error of law on the basis that the judge gave insufficient reasons for his conclusion. I informed both parties that that decision had been reached without any consideration to the Secretary of State's own guidance and I gave the representatives an opportunity to consider the IDI and make submissions based on that Instruction. Having heard and considered the submissions from both representatives I indicated that, in my judgment, the First-tier Tribunal had not materially erred in law in its conclusion that it would be unreasonable to expect the child to leave the United Kingdom.

Discussion

10. The issue of reasonableness in the appeal before the First-tier Tribunal has to be considered in the context of the instruction and guidance issued by the Secretary of State as such guidance identifies the Secretary of State's own view of what action is reasonable. It is therefore relevant to the assessment of proportionality under Article 8 and whether the First-tier Tribunal judge took full account of all relevant circumstances in his assessment of reasonableness and whether, for the reasons given, he was entitled to allow the appeal. Nationality is not a trump card but it remains a significant factor. In Secretary of State v SS (Congo) [2015] EWCA Civ 387 the Court of Appeal, at 33 indicated that compelling circumstances would need to be identified to support a claim for a grant of leave to remain outside the new Rules in Appendix FM. It is for this reason that the guidance offered in the IDI is of paramount significance in determining what is reasonable and whether compelling circumstances exist in any given case.

11. 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 the judge's own proportionality assessment 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 in determining whether the judge's conclusion was within the range of reasonable decisions open to him. 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 Zambrano v Office national de l'emploi [2012] QB 265). 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 or on the implications for the welfare of the child, in order to inform the decision."

12. Ms Ahmed drew my attention to the first paragraph under 11.2.3 which makes reference to Zambrano and to where the effect of a decision would be to force the British child to leave the EU regardless of the age of that child. She submitted that this IDI was only relevant to instances in which EU law was relevant.

13. I reject that submission. The wording of the extract I have provided is absolutely clear. There is nothing to indicate that it is restricted to instances in which EU law is triggered. In the absence of any degree of criminality or very poor immigration history the Secretary of State has concluded that it would be unreasonable to expect a British citizen child to leave the EU with a parent or primary carer. This was the conclusion reached by the First-tier Tribunal. Although the First-tier Judge did not make reference to the IDI I am entitled to consider the IDI, extant as it was at the date of the decision, in determining with his decision is vitiated by a material error of law. I am not satisfied that the judge's focus on the nationality of the child and the consequent finding that it would be unreasonable for the British national child to have to leave the UK is one that is open to legal criticism. I reach this conclusion in light of the presidential decision in Treebhawon which is currently good law. For these reasons I dismiss the Secretary of State's appeal.

Notice of Decision

The First-tier Tribunal did not make a material error of law.
The decision of the First-tier Tribunal allowing the appeal is maintained.

No anonymity direction is made.

17 June 2016
Signed Date

Upper Tribunal Judge Blum