Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16844/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 January 2017
On 20 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE G A BLACK

Between

mr shahid iqbal
(ANONYMITY DIRECTION not made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Michael Murphy (Counsel)
For the Respondent: Mr Chris Avery, Home Office Presenting Officer

DECISION AND REASONS

1. This matter comes before me as an error of law hearing in respect of a decision of First-tier Tribunal (Judge Twydell) ("FtT") promulgated on 5 July 2016 in which she dismissed an appeal against a refusal of leave to remain as a partner under the Immigration Rules and outside of the Immigration Rules under Article 8 ECHR. It is the appellant's application and I shall refer to the parties as "the appellant" and to the Secretary of State as "the respondent."

2. The FtT found that the appellant, who is a citizen of Pakistan and his wife, who is a citizen of the Philippines with indefinite leave to remain in the UK, were in a genuine and subsisting relationship. They have a child born on 13 October 2015 who is a British citizen. At the time of the application the child had not been born and so the respondent considered the rules for a partner. The FtT found that the Immigration Rules were not met as the Islamic marriage was not recognised in the UK and two years cohabitation not met. Article 8 outside of the Rules was considered with regard to the child who had been born as at the date of hearing and was thus relevant to the appeal. The FtT dismissed the appeal having concluded that the best interests of a child lay by remaining with her parents whether it be in Pakistan or in the Philippines. The FtT took into account that the child was a British citizen which was an important factor, but concluded that at her young age she could easily adapt in another country where she would be with her parents. It was accepted that the appellant's partner would not go to live in Pakistan. The FtT concluded that the public interest in immigration control outweighed the interests of the child and it was reasonable for the child to leave the UK.

Grounds of appeal
3. Grounds of appeal argued that ZH (Tanzania) was not taken into account in terms of the importance of British citizenship and that the child's nationality was a significant weighty factor in removal cases.

4. It was further argued that the FtT failed to apply Sanade and Others (British children - Zambrano - Dereci) [2012] UKUT 0048 (IAC), given that the child as a British citizen was also a European citizen and ought not to be forced to leave the UK.

Permission to appeal
5. Permission to appeal was granted Upper Tribunal Judge Canavan who stated:

"... it is at least arguable that the First-tier Tribunal did not take a sufficiently structured approach to the assessment of the best interests of a British citizen child". Although the judge noted that the best interests of the child are a primary consideration, and that nationality is not a "trump card" it is at least arguable that she failed to give adequate weight to the import of Section 117B(6) of the Nationality,Immigration and Asylum Act 2002 in assessing Article 8 outside of the Rules.

The decision focuses on whether it will be possible, in practical terms, for the family to live elsewhere arguably without adequate recognition for the fact that the weight to be placed on the public interest in the maintenance of immigration control is reduced in circumstances where it would not be reasonable to expect a British child to leave the UK. The respondent's guidance, referred to in MA (Pakistan), states that it will normally be unreasonable to expect a British child to leave the EU except where there are strong public policy reasons outweighing the child's rights such as "very poor immigration history" including repeated and deliberate abuse. It is arguable that the judge failed to give adequate reasons to explain why the public interest considerations were sufficiently weighty to outweigh the rights of a British citizen child. On the face of it the appellant is an overstayer, but there appears to be little evidence of other serious abuses of the immigration system."

Submissions
6. I heard submissions from both representatives this morning. Mr Murphy expanded on his detailed grounds of appeal and sought leave to amend his grounds of appeal. I granted leave to amend the grounds of appeal to include the ground that the FtT erred by not considering Section 117B(6) Nationality, Immigration and Asylum Act 2002 ( "2002 Act"). Mr Avery submitted that any error was not material as the FtT had given consideration to the reasonableness of the child having to leave the UK.

Error of law decision
7. I decided that there was a material error of law in the decision made by the FtT. I am satisfied that the FtT failed apply to Section 117B(6) 2002 Act in assessing Article 8 outside of the Rules and failed to specifically refer to the same in her assessment of public interest. Section 117B(6) was relevant at the date of hearing as the child was a British citizen and thus a "qualifying" child. There was no proper consideration or acknowledgement of the starting point for public interest as set out in section 117B(6) which provides that there is no public interest in the removal of the parent of a qualified child where it is found that removal of the child would be unreasonable. The reasoning given by the FtT as to why the public interest would outweigh the interests of the child was lacking. The FtT's approach was poorly structured to the extent that it referred to section 117B in its consideration of the Immigration rules and not where it is to be applied outside of the Rules under Article 8 ECHR.

8. The assessment ought to have focused on the reasonableness of a British citizen child leaving the UK, having in mind the respondent's own guidance which is reiterated in MA. In other words the FtT needed to consider if there were strong public policy reasons capable of outweighing the child's rights as a British citizen.

9. Accordingly I set aside the decision and reasons whilst preserving the findings of fact made.

10. I proceeded to hear further submissions under Article 8 outside of the Rules and with reference to Section 117B(6) as regards British citizen children and the wider public interest. I reserved my decision which I now give with my reasons.

Discussion and Decision

11. In reaching my decision I have taken into account the principles in MA (Pakistan) [46] which acknowledge the respondent's guidance dealing with British citizen children, and the judgment makes clear that in considering reasonableness under section 117B(6) the court can have regard to the wider public interest including the immigration history of the parents of a child. However, that must be seen in the context of the importance of British citizenship (ZH (Tanzania)) and whether there are strong reasons that justify a decision in favour of the public interest in immigration control which are capable of outweighing the interests of a child. It is accepted that section 117B(6) is free standing but in making the proportionality assessment the interests to be considered are not those solely in relation to the child and can include the conduct of the parents. The best interests of the child are a primary consideration but do not dictate the decision as to whether or not it is reasonable to expect the child to leave the UK. The FtT found a genuine and subsisting relationship with the child who was a qualifying child as a British citizen. It found that aside from her British citizenship the best interests of the child lay in remaining with her parents, be that in Pakistan or the Philippines. In terms of the wider public interest the FtT took into account that the appellant failed to find an educational establishment to pursue his studies after his college licence was revoked and he did not therefore fully utilise the leave granted nor follow the purpose for which he entered the UK. He overstayed for 3 years after his leave as a student was revoked. His relationship was formed during a time when his circumstances were precarious, he had no lawful leave and he failed to regularise his stay in the UK for 3 years. The couple took the decision to have a child in precarious circumstances. The immigration rules were not met as a partner as the marriage was not recognised and the two year cohabitation period not met. Otherwise the FtT found no evidence of any significantly poor immigration behaviour, criminality or dishonesty.

12. British citizenship is significant and a primary consideration in terms of the child's future health, education, culture and well being and ought to lead to a legitimisation of the child status. It is a strong factor pointing to allowing the appellant to remain in the UK as a part of the family unit. The child's mother has ILR and is employed. I accept that the FtT properly concluded that the best interests of the child lie in remaining with her parents because of her young age and it found no negative factors which prevented the child from living in either the Philippines or Pakistan with her family. Her mother had adopted the Islamic faith. The FtT appeared to accept that the appellant's partner refused to go to Pakistan and Mr Murphy argued that the FtT should have approached the matter on the basis that the couple would be separated and the child brought up without her father. His emphasis was on the European dimension relying on Sanade and others (British children- Zambrano - Dereci [2012] UKUT 00048 (IAC). The appellant has day-to-day responsibility for caring for the child as his partner is working. In terms of citizenship and the European aspect I conclude that the child would not be forced to leave the UK thus leading to a denial of her rights as a British citizen, as her mother has ILR and she can remain in the UK to care for and support the child without the presence of the appellant. The appellant can apply for leave out of country in Pakistan and as such any separation need not be permanent. There is no evidence to show any criminal behaviour or deception by the appellant such that the public interest should outweigh the child's interests. Giving proper regard to the importance of British citizenship and the absence of significant serious reasons in the public interest other than a poor immigration history and failure to meet the Rules, I have decided to allow the appeal as the provisions of section 117B(6) are met.

Notice of Decision

The appeal is allowed outside of the Rules under Article 8 ECHR.

No anonymity direction is made.

Signed Date 18.2.2017

GA Black
Deputy Upper Tribunal Judge G A Black

TO THE RESPONDENT
FEE AWARD

I have allowed the appeal but make no award as to costs as a hearing was necessary to ventilate the issues and hear evidence.

Signed Date 18.2.2017

Deputy Upper Tribunal Judge G A Black