Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/15695/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 September 2016
On 29 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHANA

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Fatbardha [G]
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr Bramble, Senior Presenting Officer
For the Respondent: Ms Akinbolu, instructed by Rashid & Rashid Solicitors

DECISION AND REASONS
1. The Secretary of State is the appellant in this appeal Ms [G] is a citizen of Albania. However, for the sake of convenience, I shall continue to refer to the parties as they were referred to before the first-tier Tribunal. The respondent appeals against the decision of Judge of the First-tier Tribunal Petherbridge promulgated on 3 March 2016 allowing the appellant's appeal pursuant to Article 8 of the European Convention on Human Rights. Permission to appeal was granted by First-tier Tribunal Judge Colyer on 3 August 2016 who said that it is arguable that the judge has made a material error of law for all three of the reasons detailed in the respondent's application for permission to appeal to the Upper Tribunal.
2. The Judge of the First-tier Tribunal stated the following in his decision. He accepted that the appellant is married to Mr Ajet [G] who has indefinite leave to remain in the United Kingdom. He accepted that the appellant has a genuine and subsisting relationship with her husband. He accepted that they have one child born on 22 June 2015 who is a British child. I was informed that the appellant as at the date of the hearing had given birth to her second child born on 26 July 2016. Both children are British citizens.
3. The judge accepted that the appellant had been financially providing for his wife and child since she had been in the United Kingdom in 2014. The respondent had taken no issue with the financial requirements of the Rules and the judge found the same. He stated at paragraph 6 that the appellant's appeal cannot succeed under the Immigration Rules because her initial application which was a human rights claim was determined after 6 April 2015 meaning that the new appeal regime applied as per Article 9C of the Immigration Act 2014 commencement number 3 2 transitional and saving provisions order 2014 SI 2014/2711 amended Article 8 of IA14 commencement number 4 transitional and saving provisions order 2014 SI 2015/371.
4. The judge then set out the jurisprudence that he had taken into account in respect of Article 8. He took into account the case of Chikwamba and Section 52 and 55 of the Borders, Citizenship and Immigration Act 2009, in respect of the children. He considered the best interests of the child and stated that the appellant's child had been born in this country, is a British citizen, and it is difficult to see that the best interests would not be served by her being allowed to remain in the United Kingdom. He stated that the practicalities of that arrangement would be that the child would have to go to Albania with her mother. The judge at paragraph 45 of his decision said that the only countervailing circumstances being that the appellant came to the United Kingdom illegally and that she could perhaps return to Albania to make an entry clearance application to return to the United Kingdom as the spouse of her husband who has indefinite leave to remain. The judge stated that however there are material circumstances that might affect the appellant having to return to Albania in view of the disassociation with her family that caused her to remove to this country.
5. The judge found that the Appellant has been her child's primary carer. The judge considered Section 117B and found that Section 117B(6) confirms there is no public interest in removing a parent of a qualifying child and that it would be unreasonable for them to leave which he found in fact was the case in this appeal and allowed the appeal under Article 8.
6. The respondent in her three grounds of appeal states that the judge failed to consider a material fact, failed to give adequate reasons, failed to give weight to material matters and failed to resolve a conflict of fact and therefore made errors in law.
7. At the hearing I heard submissions from both parties as to whether there is an error of law in her decision. Mr Bramble relied on his grounds of appeal and stated that in the refusal letter the respondent had raised the issue that the appellant had said that her family was in Albania and this issue as to the whereabouts of her parents has not been resolved adequately by the judge.
8. In her application and in the representatives' letter dated 16 February 2015 it was stated that all of her family reside in the UK. The judge's failure to resolve this which is interlinked with the other grounds of appeal as to why she cannot return to make an application from that country therefore the procedural error lies in the judge not resolving this essential conflict in the evidence.
9. The judge did not make a proper consideration of Article 8 and did not allude to the significant difficulties that the appellant may face returning. He said that although the judge has conducted the evaluation but not the whole of it. The starting point for the judge should have been that the appellant is in this country illegally and is an overstayer. The judge has not properly applied Section 117B to the appellant's circumstances.
10. The appellant's representative Ms Akinbolu apologised for no Rule 24 response and submitted that there is no issue that the appellant is able to meet the eligibility requirements and there is no issue as to the suitability. She said that the Immigration Rules must inform Article 8 considerations and the best interests of the child are relevant to the reasonableness of the child relocating to Albania. It is not reasonable for her to leave the United Kingdom. She finally submitted that even if there is an error in the decision it is not material. She further said that the appellant herself has not said that her parents are not in Albania but it is in the legal representatives' letter which must be taken in context in which it is alluded that all of her family reside in the UK and also that they are well-settled here. It was submitted that the appellant has no family contact in home country. This was supposed to mean that the appellant's immediate family is in this country and it should not be taken as to mean that her parents are also in the United Kingdom. In any event the judge, at paragraph 45, stated that the material circumstances of the appellant which might affect her returning to Albania is because of her disassociation with her family that caused her to remove to this country.
Decision as to Whether there is an Error of Law in the Decision
11. The position of the respondent is that the judge has not resolved the conflict as to the whereabouts of the appellant's family. The respondent found that the appellant's family's whereabouts is relevant in regard to the appellant returning to Albania to make an entry clearance application. It was said by the respondent that the appellant's representative stated that the appellant's family is in the United Kingdom. The appellant's position has always been that her parental family are in Albania but her immediate family which consists of her husband and now two children are in the United Kingdom. The judge stated at paragraph 45 stated that the appellant has disassociated with her family in Albania which caused her to remove to this country. This was because the appellant's parents were against the appellant's marriage. Therefore, the judge's decision that the appellant should not return to Albania to make an entry clearance application it is because she will not have the support of her family on her return with her child and now two children.
12. It is clear from reading the entirety of the decision that the judge was aware that the appellant's parents lived in Albania. The judge found the appellant credible and found that when she married her husband on 24 October 2014 in Albania and that her parents were against this marriage. The Judge took into account that the appellant came to the United Kingdom illegally and that she could return to Albania to make an entry clearance application to return to the United Kingdom as the spouse of her husband who has indefinite leave to remain. The Judge was of the view that the appellant should not have to return to Albania with her child in order to make entry clearance application given the appellant's parents opposition to her marriage. The appellant now has two children. The judge found that the Appellant has been her child's primary carer.
13. The judge considered the respondent's interest set out in Section 117B and found that Section 117B(6) confirms there is no public interest in removing a parent of a qualifying child and that it would be unreasonable for the appellant and her child to leave this country in order to make an application to return. I find no perversity in this decision such as it should be set aside.
14. The Judge took into account all the evidence in this appeal and was entitled to find that the appellant has family life with her husband and child in this country which will be interfered with by the respondent's decision.

Notice of Decision
The respondent's appeal is dismissed under human rights grounds.
No anonymity direction is made.

Signed Mrs S Chana Date 25th of September 2016

Deputy Upper Tribunal Judge Chana

TO THE RESPONDENT
FEE AWARD
No fee is paid or payable and therefore there can be no fee award.

Signed Mrs S Chana Date 25th of September 2016

Deputy Upper Tribunal Judge Chana