IA/13425/2015

• Status of case: Unreported
• Hearing date: 9 Dec 2016
• Promulgation date: 18 Jan 2017
• Publication date: 29 Jun 2021
• Last updated on: 29 Jun 2021

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13425/2015


THE IMMIGRATION ACTS


Heard at Stoke
Decision & Reasons Promulgated
On 9 December 2016
On 18 January 2017



Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER


Between

Jahangir alam
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Mr C Bloomer, Counsel
For the Respondent: Mr C Bates, Home Office Presenting Officer


DECISION AND REASONS

1. This is an appeal by the appellant against a decision of the First-tier Tribunal (Judge I Thomas) dismissing his appeal against the respondent's decision made on 19 March 2015 refusing his application for variation of leave to enter and deciding to remove him.
Background
2. The appellant is a citizen of Canada born on 5 December 1964. In June 1993 he went through an Islamic ceremony of marriage in Canada with his wife who was not present as she had been unable to obtain a passport to leave the UK, but she was linked into the ceremony by telephone. His wife then went to Canada but returned to the UK when she became pregnant. The appellant joined her and there was a civil marriage ceremony on 25 April 1994 in Newcastle-under-Lyme before he returned to Canada. There are two children, a son born on 31 August 1994 and a daughter on 1 July 1998.
3. In November 1999 the appellant entered the UK on a six month visit visa and visited again in August 2000. On 18 December 2003 he applied for leave to remain but his application was refused and a subsequent appeal was dismissed. On 25 July 2008 he wrote to the respondent requesting his passport so that he could make a voluntary departure from the UK. His next return was on 2 May 2014 with leave to remain as a visitor until 2 November 2014. On 17 October 2014 he applied for further leave to remain on the basis of his marriage.
4. His application was refused as he was unable to meet the requirements of Appendix FM as he was in the UK as a visitor. As he failed to meet the mandatory eligibility requirements, he could not benefit from the provisions of para EX.1., but in any event the respondent was not satisfied that those requirements were met. The respondent considered the provisions of para 276ADE(1) of the Rules but was not satisfied that there would be very significant obstacles to the appellant's integration into Canada if required to leave. Finally, the respondent found that there were no particular circumstances constituting exceptional circumstances consistent with the right to respect for private and family life which would justify a further consideration of article 8 outside the Rules.
The Hearing Before the First-tier Tribunal
5. At the hearing of the appeal before the First-tier Tribunal it was accepted that the appellant could not meet the requirements of Appendix FM and no submissions were made on para 276ADE(1), but in any event the judge found that there were no significant obstacles to the appellant returning to Canada. He had lived the vast majority of his life there including the period from 2008 to 2014. The judge went on to consider the position under article 8. He accepted that as the appellant's wife and two children were British citizens resident in the UK and that the decision requiring his return to Canada did interfere with his right to family life. The decision was in accordance with the law and in pursuance of a legitimate aim, the furtherance of the economic wellbeing of the United Kingdom by maintaining immigration control.
6. This left the question of proportionality. The judge said that there was no question but that both the children would remain in the UK with their mother where they have lived all their lives. At the time of the application their son was age 20 and their daughter 16 and completing her full-time education. They had managed to visit their father in Canada on at least two occasions in recent years and there was some suggestion that the visits could have been more often than that. The judge commented that there was no reason why such visits could not continue.
7. The separation of the appellant and his wife in 2008 had followed a breakdown in their relationship, but it was rekindled by telephone conversations in 2009 and 2010 and the appellant's wife had also visited Canada twice before the appellant returned in 2014. However, the appellant had not lived continuously with his family from 2008 to 2014 through his own choice. The judge also found it significant that the appellant had not made an application to enter in early 2014 as a husband but as a visitor. He commented that there was very little documentary evidence to support the genuine nature of the relationship between the appellant and his wife in that the tenancy agreement submitted was not in joint names but only named the wife and children, nor were any joint names on documents such as bank statements, the only evidence to that effect was electricity and gas top-ups in joint names.
8. The judge reminded himself that the provisions of s. 117B of the Nationality, Immigration and Asylum Act 2002 that the maintaining of effective immigration control was in the public interest. It was to the appellant's advantage that he spoke English and the judge was satisfied that since coming to the UK, he had been relying on his wife's full-time income and as such had not been a burden on taxpayers. He said that he was aware of the provisions of s. 117B(6) but they did not apply in this case: although their daughter was a qualifying child, it was not anticipated that the appellant's removal from the UK would lead to her removal.
9. The judge was referred to Chikwamba v Secretary of State [2008] UKHL 40, but said, in the context of the appellant returning to Canada to make an entry clearance application to re-join family members in the UK, that it must be read in the light of the recent case of R (Chen) v Secretary of State [2015] UKUT 189 where it was found that in all cases it would be for the individual to place before the respondent evidence that temporary separation would interfere disproportionately with protected rights and it was not enough to rely simply on the case of Chikwamba.
10. At the hearing before the judge the respondent's representative made an open invitation to the appellant to make such an application on return to Canada indicating that they were currently being dealt with in the space of 60 days. The judge found that in the present case temporary separation for this purpose would not interfere disproportionately with the appellant's right to family life. At the date of application he had been in the UK for six months, prior to which he had been absent through choice for at least six years, returning as a visitor because of family illness and not as a husband making an application on the basis of the marriage. The family had been maintaining ties by telephone and through visits which could continue. In summary, the judge was satisfied that the public interest in maintaining immigration control was such as to make the decision proportionate and the appeal was accordingly dismissed.

The Grounds and Submissions
11. In the grounds it is argued that the judge was wrong to take the view that s. 117B(6) did not apply as it was not anticipated that the appellant's removal from the UK would lead to her removal. They argue that it was not in issue that he had a genuine and subsisting relationship with a qualified child and that the question was therefore whether it would be unreasonable for the child to leave the UK. If so, the public interest did not require his removal. Permission to appeal was granted by the First-tier Tribunal, the grant setting out succinctly that the judge "arguably erred in his decision that s. 117B(6) did not apply in circumstances that the British child did not contemplate leaving the UK".
12. Mr Bloomer submitted that it was not clear whether in fact the judge had found that there was a genuine and subsisting parental relationship between the appellant and his daughter. In [18] the judge appeared to be questioning the genuine nature of the relationship between the appellant and his wife. His current period of residence was not the only matter to be taken into account. He had lived in the UK from 2000/2001 to 2008 and the marriage had been subsisting for over twenty years. There were therefore a number of other factors not taken into account which would be in the appellant's favour when assessing proportionality. He submitted that the judge had erred in his approach to s. 117B(6), in effect depriving it of its intended effect. It was wrong to say that the sub-section did not apply simply because it was not contemplated that the relevant child would not leave the UK. This approach meant that there had been no adequate consideration of whether it was unreasonable to expect his daughter to leave the UK.
13. Mr Bates conceded that s. 117B(6) should not be interpreted in this way and in so far as the judge had done so, there was an error of law, but he submitted that it was not material to the outcome of the appeal. The assessment of reasonableness should include the wider public interest rather than focusing simply on the best interests of the child: MA (Pakistan) v Secretary of State [2016] EWCA Civ 705. In the light of the appellant's immigration history, his daughter's age and the fact that it was open to him to make an application for entry clearance on return to Canada, the judge had reached a sustainable decision. In any event, if the decision was set aside, s. 117B(6) would no longer have any application as the appellant's daughter was no longer under 18.
Assessment of the Issues
14. I must consider whether the judge erred in law such that the decision should be set aside. In MA (Pakistan) v Secretary of State the Court of Appeal considered how the question of reasonableness should be approached. Although Elias LJ in his judgment said that free from authority he would favour the appellant's argument that the focus should only be on the position of the children and that the conduct and immigration history of the parents was relevant to the wider public interest to be weighed in the balance with all the relevant, such a decision would be inconsistent with the judgment of the Court of Appeal in MM (Uganda) v Secretary of State [2016] EWCA Civ 450 where the Court had held that the wider public interest should be taken into account.
15. It is also important to bear in mind that assessments of this nature must be made in the light of what Lewison LJ in EV (Philippines) v Secretary of State [2014] EWCA Civ 874 described as "real world facts". In [58] he said:
"In my judgment, therefore, the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world. If one parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted. If neither parent has the right to remain, then that is the background against which the assessment is conducted. Thus the ultimate question will be: is it reasonable to expect the child to follow the parent with no right to remain to the country of origin?"
16. The judge said that there were issues of substance in relation to the genuine and subsisting nature of the relationship, but this was in the context of the relationship between the appellant and his wife, together with the issue of their intention to live together. I am satisfied that it was accepted that there was a continuing relationship between the appellant and his daughter, such as to engage article 8, falling within s.117B(6) and that his removal would interfere with that relationship.
17. I am satisfied that when considering reasonableness under s. 117B(6) the judge would have been entitled to look at the position as a whole including the wider public interest considerations. When assessing that issue, the reality of the position must be considered, including the fact that if the appellant is able to meet the requirements of the Rules, any separation will be temporary. If he is not able to meet the requirements of the Rules, the position as to contact will continue as before. In my view, this is what is behind the judge's comment in [19] when he said that he was aware of the provisions of s. 117B(6), but it did not apply in this case. There is no suggestion of the appellant's daughter being removed as she is a British citizen but nonetheless the judge was looking at the reality of the position. It would be reasonable to expect the appellant's daughter to visit her father in Canada to maintain the relationship between them as it existed before the appellant's most recent visit.
18. I am also satisfied that the judge reached a decision on proportionality properly open to him on the evidence. In the light of the fact that the appellant had been living in Canada from 2008 to 2014 and had only returned to the UK as a visitor and not as a spouse, and taking into effect that contact with his daughter had been by occasional visits and by telephone during that period, the decision to remove the appellant in the knowledge that it was open to him to make an application for entry clearance in accordance with the rules was clearly proportionate.
19. In summary, if the judge took the view that s. 117B(6) did not apply as such, he erred in law. However, as I have attempted to indicate, the approach to reasonableness in s. 117B(6) is nuanced and must be considered in the light of all the facts, rather than taking a simplistic approach that the fact that one parent is leaving in circumstances where a qualifying child will be remaining in the UK means that it automatically follows that it is not reasonable to expect the child to leave the UK. Any error made by the judge in this respect is not material to the outcome of the appeal.
20. Finally, were the decision to be set aside and re-made it is inevitable that the appeal would fail on article 8 grounds in the light of the fact that as the appellant's daughter has now attained the age of 18 and article 8 assessments must be made at the date of decision, s. 117B(6) would no longer have any application. Although Mr Bloomer submitted that a number of matters favourable to the appellant have not been taken into account, such as his previous residence in the UK, I am not satisfied that the judge left any relevant matters out of account in his assessment of proportionality.

Decision
21. The First-tier Tribunal did not err in law such that its decision should be set aside and it follows that the decision stands. No anonymity direction was made by the First-tier Tribunal.



Signed H J E Latter Date: 16 January 2017

Deputy Upper Tribunal Judge Latter