Tribunal decisions

The decision

IAC-AH-VP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16407/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower Birmingham
Decision & Reasons Promulgated
On 5th December 2016
On 19th December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

the secretary of state for the home department
Appellant
and

VIOLET [I]
(ANONYMITY DIRECTION NOT MADE)

Respondent
Representation:

For the Appellant: Mrs H Aboni, Senior Home Office Presenting Officer
For the Respondent: Mrs H Masih of Counsel instructed by Fursdon Knapper Solicitors

DECISION AND REASONS
Introduction and Background
1. The Secretary of State appeals against a decision of Judge Andrew of the First-tier Tribunal (the FtT) promulgated on 16th November 2015.
2. The Respondent before the Upper Tribunal was the Appellant before the FtT and I will refer to her as the Claimant.
3. The Claimant is a female Nigerian citizen born 13th April 1985. She arrived in the United Kingdom as a Tier 4 Student on 13th February 2014. She met a British citizen and became pregnant, and gave birth to a child on 25th November 2014.
4. The Claimant's Tier 4 leave was curtailed and expired on 7th February 2015. Before the expiry of her leave she applied for leave to remain based upon her family and private life.
5. That application was refused on 22nd April 2015 and the appeal against refusal was heard by the FtT on 9th November 2015.
6. The FtT heard evidence from the Claimant and noted a statutory declaration from the child's father which stated that he provided financial support, although he had not attended the hearing.
7. The FtT found that the Claimant could not satisfy the financial requirements of the Immigration Rules, and therefore EX.1 needed to be considered, and the issue was whether it was reasonable to expect the British child to leave the United Kingdom.
8. The FtT found that the child's father had stated in his statutory declaration that he would not allow his child to be taken out of the United Kingdom.
9. The FtT placed weight on the refusal by the child's father to allow the child to leave the United Kingdom and found that it would not be reasonable to expect the child to leave this country. Therefore the appeal was allowed.
10. The Secretary of State applied for permission to appeal to the Upper Tribunal. In summary it was contended that the findings of the FtT at paragraphs 16 and 17 that EX.1 applies are entirely inadequately reasoned. The child was born on 25th November 2014 and at the date of the FtT hearing was less than 1 year old. It was contended that it was entirely reasonable to expect the child to remain with the Appellant and return to Nigeria as a family unit. It was contended that the FtT had failed to adequately explain why the requirement under EX.1 was met on the facts of this case.
11. Permission to appeal was granted by Judge Scott-Baker who found the Secretary of State's grounds disclosed an arguable error of law.
12. Following the grant of permission the Claimant lodged a response pursuant to rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 contending in summary, that the grounds submitted by the Secretary of State amounted to a disagreement with the finding made by the FtT, but did not disclose a material error of law.
13. Directions were issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FtT decision contained an error of law such that it should be set aside.
The Secretary of State's Submissions
14. Mrs Aboni relied upon the grounds contained within the application. I was asked to note that the child's father had not attended the hearing before the FtT. If the Claimant left the United Kingdom, the child would not necessarily be left alone, and the FtT had not properly considered whether the child could be left with his father. Mrs Aboni submitted that the FtT decision displayed a lack of reasoned findings.
The Claimant's Submissions
15. Mrs Masih disagreed and relied upon the rule 24 response, and her lengthy skeleton argument.
16. Mrs Masih submitted that the FtT decision was adequately reasoned and the Secretary of State had accepted that EX.1 should be considered.
17. The Secretary of State's view that it would be reasonable to expect the child to leave the UK was simply a disagreement with the contrary conclusion which had been reached by the FtT. I was asked to note the policy of the Secretary of State, which had been before the FtT, and which is set out at paragraph 4 of the rule 24 response and which is set out below;
11.2.3 Would it be unreasonable to expect a British citizen child to leave the UK?
Save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child. This reflects the European Court of Justice judgment in Zambrano.
18. I was asked to find the decision of the FtT disclosed no material error of law and should stand.
My Conclusions and Reasons
19. The Secretary of State accepts in the refusal decision dated 22nd April 2015 that EX.1 should be considered. For ease of reference I set out below EX.1(a);
EX.1 This paragraph applies if
(a)(i) the applicant has a genuine and subsisting parental relationship with a child who -
(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;
(bb) is in the UK;
(cc) is a British citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and
(ii) it would not be reasonable to expect the child to leave the UK;
20. It was common ground before the FtT that the child is British, and the Respondent did not suggest that the Claimant did not have a genuine and subsisting parental relationship with her child. As stated in paragraph 15, the FtT recognised that the issue in the appeal was whether it would not be reasonable to expect the child to leave the United Kingdom.
21. The FtT then proceeded at paragraphs 16 and 17 to consider this issue, and concluded that it would not be reasonable to expect the child to leave the United Kingdom.
22. With reference to the child being British, Lady Hale in ZH (Tanzania) [2011] UKSC 4 confirmed at paragraph 30 that;
"Although nationality is not a trump card it is of particular importance in assessing the best interest of any child."
23. Lady Hale went on to state at paragraph 32 that the intrinsic importance of citizenship should not be played down, and that British children have rights which they will not be able to exercise if they move to another country.
24. It is therefore clear from the above, that citizenship is a very important consideration. The FtT clearly took into account the very young age of the child. The FtT placed weight upon the fact that although the father was not present, he had submitted a statutory declaration, in which he stated that he would not give his permission for the child to be taken out of the jurisdiction.
25. In my view the FtT was entitled to place weight upon that evidence. The FtT was also entitled, although there was no specific reference to this in the decision, to take into account the Respondent's own policy regarding British children, which has been set out earlier in this decision, and which was contained within the skeleton argument placed before the FtT. That policy is clear, in that the decision maker acting on behalf of the Secretary of State must not take a decision in relation to a parent or primary carer of a British citizen child, where the effect of that decision would be to force the child to leave the EU, regardless of the child's age.
26. Mrs Aboni submitted that the FtT had not considered whether the child could be looked after by the father. I disagree as the FtT did consider this point stating at paragraph 17;
"There is no evidence before me that the father would care for the child or indeed would have the ability to do so. In any event it must be in the best interest of a child at this age to remain with his mother."
27. I therefore conclude the FtT identified the relevant issue in the appeal, considered the evidence, and reached a conclusion based on the evidence that had been considered.
28. I do not accept that the decision is inadequately reasoned. I set out below the head note to Budhathoki (reasons for decision) [2014] UKUT 00341 (IAC);
It is generally unnecessary and unhelpful for First-tier Tribunal judgments to rehearse every detail or issue raised in a case. This leads to judgments becoming overly long and confused and is not a proportionate approach to deciding cases. It is, however, necessary for judges to identify and resolve key conflicts in the evidence and explain in clear and brief terms their reasons, so that the parties can understand why they have won or lost.
29. In my view the FtT complied with the obligation set out above and explained in clear and brief terms the reasons for the decision. The application made by the Secretary of State displays disagreement with the FtT decision, but does not disclose a material error of law.
Notice of Decision

The making of the decision of the FtT did not involve the making of a material error on a point of law. I do not set aside the decision. The appeal of the Secretary of State is dismissed.

Anonymity

No anonymity direction was made by the FtT. There has been no application to the Upper Tribunal for anonymity. I see no need to make an anonymity order.

Signed Date 6th December 2016

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The decision of the FtT stands and therefore so does the decision not to make a fee award.

Signed Date 6 December 2016

Deputy Upper Tribunal Judge M A Hall