Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/15830/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision Promulgated
On 1st August 2016
On 13th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

SANTOSH [M]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Mbariti, Solicitor of Cross Border Legal
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer

DECISION AND DIRECTIONS
Background
1. On 13th June 2016 Judge of the First-tier Tribunal Nightingale gave permission to the appellant to appeal against the decision of Judge of the First-tier Tribunal Colyer in which he dismissed the appeal against the decision of the respondent to refuse leave to remain as either a partner or a parent in accordance with the provisions of Appendix FM of the Immigration Rules and on human rights grounds applying the provisions of paragraph 276ADE of the Immigration Rules.

Error on a point of law
2. Judge Nightingale noted that, in summary, the grounds of application alleged that the judge erred by failing to take into consideration Section 117B of the Nationality, Immigration and Asylum Act 2002, particularly having regard to the two children of the appellant's partner. It was also contended that the judge applied a restrictive definition of "parental relationship".
3. Permission was granted on the basis that it was arguable that, at paragraph 90, the judge took into account an irrelevant matter concerning the children attending a state school when assessing the children's relationship with the appellant. Further, it was thought arguable that the judge had failed to apply the relevant considerations in Section 117B y assessing "parental relationship" in a restricted manner rather than following the guidance set out in R (On the application of RK) (Section 117B(6); "parental relationship" (IJR)) [2016] UKUT 31 (IAC).
4. The grounds contended that the judge had found that the appellant was not in a parental relationship because he was not married to the children's mother and his relationship with her and her two children had no "legal status". Reference is made to paragraph 42 of R (On the application of RK) which emphasised that, whether a person is in a parental relationship with a child, depends on the individual circumstances of the case, the court accepting that it was not necessary for an individual to have parental responsibility in law for there to exist a parental relationship.
5. The grounds also make reference to the conclusions of the judge in paragraph 90. It is contended that the judge was wrong to find that, because both children were in receipt of free education, meant that there would be a financial burden on the state when free education was available to the two British children.
6. At the hearing before me Mr Mbariti confirmed that he relied upon the grounds. He pointed out that the respondent had acknowledged that the judge had only considered the point referred to in paragraph 90 of his decision. The main point was that the judge had only used a narrow definition of parental relationship when finding against the appellant and had failed altogether to consider Section 117B(vi). The parental relationship issue by simply finding, in paragraph 45, that, as the appellant was not married to the children's mother, there was no "legal status" in respect of his alleged relationship with her two children.
7. Mr Mbariti also made reference to the Rule 24 response which, at paragraph 5, suggested that the judge had been right to take into consideration that the appellant was not named in a child protection plan agreed between Social Services and the children's natural father. He emphasised that, on page 86 of the appellant's bundle, it was shown that the plan preceded the appellant's cohabitation with his sponsor. That was the reason for the appellant not being mentioned.
8. Mr McVeety suggested that the latter point made by Mr Mbariti could be ignored as the appellant had claimed to be in a partnership with the sponsor even if not living together at the time of the order. He also drew attention to the letter from the children's school showing that the appellant had picked up the children since January 2012.
9. He then referred to paragraphs 61 and 62 of the decision which, he thought, showed that the judge had decided that the appellant was not in a genuine and subsisting relationship with his sponsor but simply a lodger in her home.
10. As to the nature of the parental relationship Mr McVeety also submitted that, when read in full, R (On the application of RK) did not show that such a relationship could have existed in this case. Thus, the appeal could not have succeeded under Section 117B(6). Whilst he conceded that the judge had not specifically referred to Section 117B he thought its provisions were implicit in the findings.
11. In conclusion Mr Mbariti argued that the appellant had not had a meaningful relationship with his sponsor when the child protection plan was agreed. He emphasised that the judge should have found that the appellant had stepped into the shoes of a parent by replacing the children's father. He believed that the decision should be re-made.
Conclusions
12. The two main issues in this appeal were the nature of the relationship between the appellant and his claimed partner and the nature of his relationship with her children. I conclude that there are errors of law in relation to the judge's approach and conclusions on these two matters. My reasons follow.
13. Although the decision of this experienced judge is comprehensive and detailed his conclusion as to the nature of the relationship between the appellant and his claimed partner is not at all clear. At paragraph 62 he appears to decide that the appellant is simply a lodger with his alleged partner and nothing more. Certainly the factors examined in preceding paragraphs suggest that the judge did not accept that there was a genuine and subsisting relationship. However, confusingly, he appears to have been content to regard all the parties as having a family life together for the purpose of consideration of proportionality issues. A clear, unambiguous, decision on this essential issue was required but is absent from the decision.
14. As to the nature of the relationship between the appellant and his claimed partner's children the judge's reasoning is to be found from paragraph 65 onwards and then, generally, in relation to Article 8 issues from paragraph 92 onwards. Whilst the judge is prepared to find that the appellant has limited family and private life with his claimed partner and her children, there is no specific decision about whether or not the appellant had a parental relationship with those children. It was essential for the judge to reach a conclusion on that matter as the existence of a "parental relationship" is required for the purpose of the Immigration Rules (for example, EX.1.) and also consideration of human rights issues outside those Rules (Section 117B(vi) of the 2002 Act). It is not at all clear that the judge ever applied his mind to this term and certainly there is no reference to the guidance of the Upper Tribunal on the meaning of the term in R (On the application of RK). Thus, it cannot be said that the judge approached the issue correctly or applied the relevant legal guidance. Certainly, I am unable to conclude that, when considering Article 8 issues outside the Immigration Rules, the judge applied the provisions of Section 117B by implication even if not by direct reference.
15. Since the judge did not reach clear and cogently reasoned findings on the relationship issues, it follows that his consideration of the relevant law applicable to those issues was also flawed. These are material errors on points of law such that the decision should be remitted to the First-tier Tribunal for hearing afresh with the benefit of oral evidence. This accords with the Practice Statement of the Senior President of Tribunals dated 25th September 2012 at paragraph 7.2(b).
Anonymity
Anonymity was not requested or directed by the First-tier Tribunal nor did I consider one appropriate for the hearing before the Upper Tribunal.
DIRECTIONS
16. The remitted decision will be heard by the First-tier Tribunal sitting at either Nottingham or Stoke on a date to be specified by the Resident Judge.
17. The remitted hearing should not take place before Judge Colyer.
18. No interpreter will be provided for the hearing unless the appellant's representatives indicate to the contrary.
19. The time estimate for the hearing is two and a half hours.

Signed Date

Deputy Upper Tribunal Judge Garratt 13th September 2016