Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/15506/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 March 2017
On 10 March 2017

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

talat asghar
(anonymity direction not made)
Respondent
Representation:
For the Appellant: Miss Isherwood, Home Office Presenting Officer
For the Respondent: Mr P Richardson, Counsel instructed by Chauhan Solicitors
DECISION AND REASONS
1. Although this case touches on the welfare of children I see no need for and do not make an order restricting publication. The salient facts are not embarrassing and I do not see how publicity could endanger anyone.
2. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal allowing the appeal of the respondent (hereinafter referred to as “the claimant”) against a decision of the Secretary of State refusing him leave to remain on the basis of his private and family life in the United Kingdom. I note that the First-tier Tribunal was not assisted by any representation from the Secretary of State. It is a matter of concern that the Secretary of State does not think it sufficiently important to attend and assist a judge in a case that concerns the welfare of children.
3. The First-tier Tribunal allowed the appeal under the Immigration Rules and under Article 8 of the European Convention on Human Rights. I have no hesitation in saying that the appeal should not have been allowed under the Immigration Rules. There was a clear and obvious mistake in that the First-tier Tribunal found that the claimant and his partner had established a durable relationship under the Rules. They had not done that and it had never been their case that they had. They had just not been together long enough for that to be the case.
4. Miss Isherwood, for the Secretary of State, argued with some justification that the consideration of the case on Article 8 grounds is exceedingly skimpy. There really is no answer to that. The question that I have to answer is whether it is so skimpy that I have to set it aside in its entirety, or whether when I read the determination with care and with what I might describe as a little nudging from Mr Richardson, the meaning is clear enough.
5. The salient points are that the claimant is in a quasi-marital relationship. It is not a relationship that has lasted very long but it has been acknowledged by some sort of religious ceremony which would not change the relationship in law but is an indication of good faith on the part of the parties, and clear evidence that the claimant’s partner’s children from an earlier relationship regarded the claimant as their father figure. This is acknowledged in the Decision and described in quite tender terms. It was clearly something which the judge was entitled to regard as significant and to which he gave significant weight.
6. Mr Richardson argued that these facts should have led to the appeal being allowed with regard to Section 117B of the Nationality, Immigration and Asylum Act 2002. The point is that where there are children involved the public interest does not require removal unless it is a deportation case, which this is not, where there is a genuine and subsisting parental relationship and it would not be reasonable to expect the child to leave the United Kingdom.
7. The phase “qualifying child” is defined in the Rules and includes a British citizen, as these children are. It is not normally reasonable to expect a British citizen child to leave the United Kingdom under any circumstances and Mr Richardson argued that the applicable policy means that these children should not be expected to leave and so Section 117B(6) shows that the public interest, does not require removal in this case. If the public interest does not requirement removal, then the appeal by the claimant against the Secretary of State’s decision can and probably should be allowed.
8. There may be some gloss to be put on this. The claimant has not behaved in a wholly commendable way. He has stayed in the United Kingdom after his leave had lapsed and he should not have done that. That is a discreditable feature that has to be taken into account but Miss Isherwood very fairly conceded that although that is, in her submission, a significant point, it is the only point against him. It is not a case that is aggravated, for example, by making a dishonest application or obtaining dishonest evidence or anything of that kind.
9. It is clear to me that the First-tier Tribunal intended that the appeal should be allowed for the sake of the children. Section 117B(6) permits that decision and I am satisfied that when the decision is read carefully it was open to the judge, albeit not explained as well as it ought to have been. There is no material error in the part of the decision allowing the appeal on human rights grounds.
10. I am told, and accept, that the claimant’s circumstances have now changed and the claimant’s partner has been safely given birth to the claimant’s and that child is a British citizen. I hope I have not fallen into the error of excessive pragmatism but if the decision had to be remade this would have been a very telling factor in favour of allowing the appeal.
Notice of Decision
It follows therefore that I allow the Secretary of State’s appeal to the limited extent that I set aside the decision allowing the appeal under the Immigration Rules.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 9 March 2017