(Immigration and Asylum Chamber) Appeal Number: IA/17497/2015
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 17 July 2017
On 9 August 2017
DEPUTY UPPER TRIBUNAL JUDGE L J MURRAY
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
(anonymity direction MADE)
For the Appellant: Mr Tufan, Home Office Presenting Officer
For the Respondent: Mr Gajjar, Counsel instructed by PN Legal Service
DECISION AND REASONS
1. The Appellant in this case is the Secretary of State and the Respondent was the Appellant before the First-tier Tribunal. I shall refer to the Appellant as the Secretary of State and to the Respondent as the Claimant throughout this decision. The Claimant is a national of Jamaica who was born on 25 September 1972. He entered the United Kingdom as a visitor on 31 October 2001 and remained in the United Kingdom unlawfully after his visa expired. He applied for leave to remain outside the Rules on 5 July 2014 on the basis of his family and private life but was refused without a right of appeal. The decision under appeal to the First-tier Tribunal was the decision of the Secretary of State dated 23 April 2015 refusing him leave to remain on the basis of his family and private life. The Secretary of State in that decision concluded that he could not meet the requirements of the partner route because he did not satisfy the requirements of paragraph S-LTR.1.6 as he had been convicted and imprisoned for obtaining a passport by deception on 31 October 2013 at Woolwich Crown Court. He was convicted on three counts and sentenced to six months' imprisonment to run concurrently. On the basis of his conviction the Secretary of State concluded that because of his conduct and character his presence in the UK was not conducive to the public good and it was not considered desirable to allow him to remain in the United Kingdom. Further he had failed to declare on his application form an offence of resisting or obstructing a constable for which he was fined.
2. As he had failed to meet the mandatory requirements of the Rules the Secretary of State concluded in the refusal letter that paragraph EX.1 did not apply in his case even though it was accepted he had a relationship that was subsisting with his British spouse. His application was also considered under the partner route and it was acknowledged that he had a genuine and subsisting parental relationship with two children, S and N. However, neither of them lived with him and his spouse and each had different mothers, neither of whom was his spouse, and the application fell for refusal under the eligibility requirements of the Immigration Rules as set out earlier. The application was also refused under the private life route as set out in paragraph 276ADE of the Immigration Rules. The Secretary of State also considered whether exceptional circumstances were to be found in his application but having considered Section 55 of the Borders, Citizenship and Immigration Act 2009 and his arguments in respect of his two sons, the Secretary of State concluded that any contact with S had developed recently and there was no evidence to show that his contact with N had been on a long term basis or that the court had granted access rights. The Secretary of State concluded that the prison sentence demonstrated that his sons were not dependent on him for support and any contact was incidental and that it was not in S or N's best interests that he be allowed to remain in the UK.
3. His appeal came before the First-tier Tribunal and was allowed by First-tier Tribunal Judge Greasley in a decision promulgated on 8 August 2016. First-tier Tribunal Judge Greasley concluded that there were exceptional circumstances such as to justify consideration of Article 8 outside the Immigration Rules and that family life existed between the Claimant, his wife and his two sons. He found that it was in the best interests of the Claimant's children that the Claimant remain in the United Kingdom, and he concluded that the balance on the issue of proportionality weighed in favour of the Claimant and removal would be unlawful.
4. The Secretary of State sought to challenge the decision of the First-tier Tribunal. Permission was refused in the first instance by the First-tier Tribunal and granted on renewal by Upper Tribunal Judge Smith on 5 January 2017. Judge Smith found that it was arguable that the First-tier Tribunal Judge had erred in his application of the public interest to the Claimant's case stating that even if the Judge was arguably entitled to take into account as a matter in the Claimant's favour that the Claimant spoke English and was not a financial burden on the state, which in itself was arguably an error, that it was further arguable that the Judge had failed to apply section 117B(1) and take account of the Claimant's criminal offending. Whilst Upper Tribunal Judge Smith in granting permission was less persuaded by the grounds concerning the consideration of the best interests of the children, the grant of permission was not limited. The appeal therefore came before the Upper Tribunal in order to determine whether or not there was an error of law in the decision of the First-tier Tribunal.
5. In a decision promulgated on 24 March 2017 I determined that there was a material error of law in the decision of the First-tier Tribunal and I set it aside. My core reasons were recorded in paragraphs 11 and 12 and I set them out here:
"11. I find that there is a material error of law in relation to the assessment of Article 8 outside the Rules. It is not challenged by the Secretary of State that the Claimant enjoyed family life with his spouse and the Judge gave reasoned and adequate conclusions for finding that the Claimant had a strong relationship with his son S, a British Citizen. However, notwithstanding the fact that the Judge refers to section 117B in paragraph 48 of the decision and addresses himself in relation to some of the factors that are required to be taken into account, looking at the substantive reasoning within the body of the decision the approach fails to take into account material factors in relation to those statutorily required considerations. Firstly, despite reference in paragraph 48 to section 117, there is no consideration of the fact that the Claimant's relationship with a qualifying partner was established whilst he was here unlawfully as required by section 117B (4)(b) nor does the Judge make any specific self-direction in relation to the little weight provision regarding the Claimant's private life as required by section 117B (4) (a). Further, there is a clear misdirection of law regarding the Claimant's ability to speak English and the fact he is not financially a burden on the UK taxpayer. In the case of Rhuppiah v the Secretary of State  EWCA Civ 803 the Court of Appeal held that section 117B(2) proficiency in English and section 117B(3) financial independence were neutral factors. The First-tier Tribunal in paragraph 49 stated that the factors weighed in his favour in the balancing exercise. That therefore was a misdirection. Further, although the best interests of the Claimant's children are addressed, section 117B (6) is not addressed in relation to the qualifying child in this case. The First-tier Tribunal's reasoning in respect of the best interests of the child is that the best interests are determinative. That is not the approach which has been held to be the correct approach in the case of MA (Pakistan) v SSHD  EWCA Civ 705 and it fails to address the second limb of the test in relation to reasonableness (section 117 B (6) (b)).
12. I find therefore that the decision as a whole fails adequately to deal with the section 117B considerations and fails to give adequate consideration to the fact that the Claimant was here unlawfully since 2001. The First-tier Tribunal therefore did not demonstrate that the relevant statutory provisions had been taken into account and had been applied to the facts of this appeal. The balancing exercise therefore failed to take into account statutorily mandated factors and contrary to the statutory requirement placed weight in the Claimant's favour on factors which should have been neutral in the balancing exercise."
6. I adjourned for rehearing with directions.
The Re-making of the decision in the appeal
7. At the hearing the parties agreed that as the error of law in this case related to the treatment of public interest considerations the findings of fact made by the First-tier Tribunal at paragraphs 41 to 45 stand.
8. The Claimant produced a bundle of 39 pages for the hearing pursuant to directions. He adopted his witness statement at page 8 of that bundle and his previous statement at page of the Claimant's bundle. His partner S L also adopted her statement at page 9 of the Claimant's bundle and at page of the previous bundle. Neither were cross-examined. I heard from both representatives. Mr Tufan submitted that since this matter was heard there had been clarification in R (on the application of MM (Lebanon)) (Appellant) v Secretary of State for the Home Department  UKSC 10 in which the Supreme Court concluded at paragraph 92 that the Rules and instructions were unlawful. The issue was proportionality and whether best interest of children trumped his precarious leave and history of criminality. He had been sentenced to 6 months' imprisonment and had committed other minor offences. He had relationships with two children which were sporadic relationship and saw them periodically. There was no substantive evidence showing that he was making financial contributions. They spent time together and would be in their best interest that contact continued. However, there had been criminal activity and he did not come under the rubric of financial independence. Public interest required removal.
8. Mr Gaffar relied on his skeleton argument. He said that the social work report before the First-tier Tribunal had been out of date. The updated report was written by a different author and reached the same conclusions. The author spoke to both of the Claimant's children and they spoke about having a father around and the author had concluded that the absence of a father figure was relevant. There was a contact order which was a starting point. The increased contact was responsible for a change in S's behaviour. It was the Respondent's policy not to remove British children. There had been a significant period of overstaying. His crime was in the past and he was given a relatively short sentence of 6 months and released on licence at 3 months. He was trying to regularise his status. He did not pose any risk to the public. The children's interest and reasonableness consideration when viewed against s117 (4) did fall in his favour.
9. The Claimant did not seek to argue before the First-tier Tribunal and does not seek to argue before this Tribunal that he meets the requirements of the partner or parent route under the Immigration Rules. His application was refused under the suitability requirements because he was convicted and imprisoned for obtaining a passport by deception on 31 October 2013 at Woolwich Crown Court and sentenced to 6 month imprisonment. The Respondent therefore concluded that his presence in the UK was not conducive to public good. The Claimant has not sought to argue that he meets the suitability requirements but rather puts his case outside the Rules on the basis of his relationship with his two children and his British national wife.
10. The Claimant has two children, S born on 31 July 2003 and N born on September 2008. Their mothers are BR and CM respectively. The Appellant is no longer in a relationship with either of the mothers. S is a British citizen and was born on 31 July 2003. A copy of his passport is at page 8 of the Claimant's bundle. N was born on 14 September 2008. According to the Claimant's witness statement dated July 2016 his mother and he have an application pending for the resolution of their status. I have not been updated in relation to this application.
11. The relevant preserved findings from the First-tier Tribunal are that the Claimant has established a bond with S over several years. The First-tier Tribunal accepted that S's mother made significant attempts to thwart contact. It was accepted that her behaviour had been so unreasonable that the East London family court had to make defined contract provisions. He accepted that contact took place in accordance with that order. He also accepted that S's behavioural issues had been as a result of forced separation from the Claimant. He found that the removal of the Claimant would not be in S's best interests and if the Claimant were to be removed, this would be likely to cause him trauma due to the separation and it was unlikely that he would recover from such an event leading possibly to further and lasting emotional damage. He also accepted that the Claimant was as committed to N as he was to S.
12. The Claimant can only succeed by showing that, at the date of the hearing, his Article 8 rights would be breached as his appeal is on human rights grounds only under section 84 of the Nationality, Immigration and Asylum Act 2002. I am required to consider the evidence at the date of the hearing. The jurisdiction of the Tribunal in relation to appeals on Article 8 grounds only was considered in respect of visit visa cases. In Kaur (visit appeals; Article 8)  UKUT 00487 the Upper Tribunal held that the Article 8 decision on an appeal cannot be made in a vacuum. Whilst judges only have jurisdiction to decide whether the decision is unlawful under s.6 of the Human Rights Act 1998 the starting-point for deciding that must be the state of the evidence about the appellant's ability to meet the requirements of the immigration rules. In view of the fact that the Claimant's appeal is on human rights grounds only, the approach should be analogous.
13. In addressing the questions in Razgar  UKHL 27 I accept that the Claimant enjoys family life with his two sons. The history of his relationship is set out in his witness statements, the social work report of Robert Simpson dated November 2014 and the social work report of Jasmine Smith dated 1 June 2017. There is supporting evidence from his solicitors and S's school that the Claimant made significant efforts to enjoy contact with his son. The contact order is at pages 10 and 11 of the Claimant's bundle. It states that the Claimant has contact with S on alternate Fridays from 5pm until Sunday at 6pm. He also has contact every Thursday from 5pm to 8pm during term time. During the holidays he spends 50% of the holiday period with the Claimant. The Claimant confirms in his witness statement dated 13 June 2017 that contact continues in accordance with the contact order. The Claimant was not challenged in cross-examination on the current level of contact that he is having with either child.
14. The Independent Social Work Report of Jasmine Smith was compiled after interviewing the Claimant, his wife and both of his sons. She is a qualified social worker and her ability to comment on the matters in on which she gives her opinion in the report has not been challenged. She concludes that S has a secure attachment with the Claimant which is vital for his growth and development. She also concludes that an attachment exists in with N.
15. The Claimant also states that he has a strong, genuine and subsisting parental relationship with N who resides with his mother. As he has an amicable relationship with her he is able to see him on a weekly basis both during the week and at weekends.
16. I am satisfied given the level and nature of the contact enjoyed which is confirmed by Ms Smith that the relationships between the Claimant and his two children constitutes family life for the purposes of Article 8 ECHR.
17. It is not in dispute that the Claimant has a genuine and subsisting relationship with his British citizen wife, SD, and that they live together and that this relationship constitutes family life for the purposes of Article 8 ECHR.
18. Addressing the remaining questions posed in Razgar, the proposed interference is of sufficient gravity to engage the operation of Article 8, the interference is in accordance with the law and necessary in a democratic society. The remaining question is therefore whether the interference is proportionate to the legitimate public end sought to be achieved.
19. My starting point in terms of proportionality is whether the Claimant can satisfy the Immigration Rules. The Claimant argues that his removal would not be in the best interests of his children and that he satisfies the requirements of 117 (B) (6) of the 2002 Act. The test of 'reasonableness' is the same under the Rules and under section 117 (B) (6) and the later test must, according to paragraph 13 of MA (Pakistan) and Ors v SSHD  EWCA Civ 705 be applied at the date of the hearing.
20. Sections 117A and 117B are found in part 5A of the 2002 Act which is headed "Article 8 ECHR: Public Interest Considerations". They apply in all cases where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's rights under Article 8. Section 117B (6) is as follows:
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where-
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.
The definition of "qualifying child" is found in section 117D:
"qualifying child" means a person who is under the age of 18 and who-
(a) is a British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven years or more;
21. Lord Justice Elias concluded at paragraph 19 of MA (Pakistan) and Ors v SSHD  EWCA Civ 705 that the only questions which courts and tribunals need to ask when applying section 117B(6) are the following:
"(1) Is the applicant liable to deportation? If so, section 117B is inapplicable and instead the relevant code will usually be found in section 117C.
(2) Does the applicant have a genuine and subsisting parental relationship with the child?
(3) Is the child a qualifying child as defined in section 117D?
(4) Is it unreasonable to expect the child to leave the United Kingdom?
If the answer to the first question is no, and to the other three questions is yes, the conclusion must be that article 8 is infringed."
22. The Claimant is not liable to deportation. I accept on the evidence discussed above that the Claimant has a genuine and subsisting parental relationship with both his sons. It is clear from both the preserved findings of fact and from the evidence both of the Claimant, his wife and Ms Smith that he enjoys regular contact with both his sons on a weekly basis and has S with him for half of his school holidays. I accept that this amounts to a subsisting parental relationship. S is a qualifying child because he is a British Citizen. N is a qualifying child because he is 8 years old and has lived in the UK since birth.
23. In MA (Pakistan) the Court of Appeal gave the following guidance on the reasonableness test under section 117 (B), EX.1 and paragraph 276 ADE:
24. " Applying the reasonableness test
46. Even on the approach of the Secretary of State, the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise. Indeed, the Secretary of State published guidance in August 2015 in the form of Immigration Directorate Instructions entitled "Family Life (as a partner or parent) and Private Life: 10 Year Routes" in which it is expressly stated that once the seven years' residence requirement is satisfied, there need to be "strong reasons" for refusing leave (para. 11.2.4). These instructions were not in force when the cases now subject to appeal were determined, but in my view they merely confirm what is implicit in adopting a policy of this nature. After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK. That may be less so when the children are very young because the focus of their lives will be on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child's best interests will be to remain in the UK with his parents as part of a family unit, and that must rank as a primary consideration in the proportionality assessment.
47. Even if we were applying the narrow reasonableness test where the focus is on the child alone, it would not in my view follow that leave must be granted whenever the child's best interests are in favour of remaining. I reject Mr Gill's submission that the best interests assessment automatically resolves the reasonableness question. If Parliament had wanted the child's best interests to dictate the outcome of the leave application, it would have said so. The concept of "best interests" is after all a well established one. Even where the child's best interests are to stay, it may still be not unreasonable to require the child to leave. That will depend upon a careful analysis of the nature and extent of the links in the UK and in the country where it is proposed he should return. What could not be considered, however, would be the conduct and immigration history of the parents.
48. In EV (Phillipines) Lord Justice Christopher Clarke explained how a tribunal should apply the proportionality test where wider public interest considerations are in play, in circumstances where the best interests of the child dictate that he should remain in the UK (paras. 34-37):
"34. In determining whether or not, in a case such as the present, the need for immigration control outweighs the best interests of the children, it is necessary to determine the relative strength of the factors which make it in their best interests to remain here; and also to take account of any factors that point the other way.
35. A decision as to what is in the best interests of children will depend on a number of factors such as (a) their age; (b) the length of time that they have been here; (c) how long they have been in education; (c) what stage their education has reached; (d) to what extent they have become distanced from the country to which it is proposed that they return; (e) how renewable their connection with it may be; (f) to what extent they will have linguistic, medical or other difficulties in adapting to life in that country; and (g) the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens.
36. In a sense the tribunal is concerned with how emphatic an answer falls to be given to the question: is it in the best interests of the child to remain? The longer the child has been here, the more advanced (or critical) the stage of his education, the looser his ties with the country in question, and the more deleterious the consequences of his return, the greater the weight that falls into one side of the scales. If it is overwhelmingly in the child's best interests that he should not return, the need to maintain immigration control may well not tip the balance. By contrast if it is in the child's best interests to remain, but only on balance (with some factors pointing the other way), the result may be the opposite.
37. In the balance on the other side there falls to be taken into account the strong weight to be given to the need to maintain immigration control in pursuit of the economic well-being of the country and the fact that, ex hypothesi, the applicants have no entitlement to remain. The immigration history of the parents may also be relevant e.g. if they are overstayers, or have acted deceitfully."
49. Although this was not in fact a seven year case, on the wider construction of section 117B(6), the same principles would apply in such a case. However, the fact that the child has been in the UK for seven years would need to be given significant weight in the proportionality exercise for two related reasons: first, because of its relevance to determining the nature and strength of the child's best interests; and second, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary."
25. I have considered the best interests of the Claimant's children as a primary consideration. In Zoumbas v Secretary of State for the Home Department  UKSC 74;  1 WLR Lord Hodge, with whose judgment Lady Hale and Lords Kerr, Reed and Toulson agreed, approved the following seven principles which need to be borne in mind when considering the interests of the child in the context of an Article 8 evaluation (para.10):
(1) The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR;
(2) In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child's best interests do not of themselves have the status of the paramount consideration;
(3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant;
(4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play;
(5) It is important to have a clear idea of a child's circumstances and of what is in a child's best interests before one asks oneself whether those interests are outweighed by the force of other considerations;
(6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and
(7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent."
26. The length of residence here is a clear pointer as to where the best interests of the children lie. According to established case law, 7 years from the age of four is likely to be more significant to a child than the first seven years of life. Both children have lived in the UK since birth. Both live with their mothers and have contact with their father. They also both have contact with each other during overnight stays at the Claimant's home. According to the social work interview, S explained how he was sad and unhappy when he could not see his father during the period contact was thwarted by his mother. Ms Smith concludes that the Claimant is someone S can identify with and can listen to, with the assurance he can achieve because he has his father by his side. She concludes that the level of bonding is not only significant but vital for S's growth and development.
27. During the social work interview with N he cried inconsolably and said he did not like to be asked questions. According to his mother this was because he was upset because of the fear that his father would return to Jamaica. The interview was not continued. Ms Smith concludes that were the Claimant to return to Jamaica and communicate via electronic means, the children would experience deprivation as well as possible and mental anguish due to the physical separation. She concludes that the children deserve to be raised by both parents in order to obtain optimum life chances and to ensure they make a good contribution to society. S has already in her opinion experienced the impact of inconsistent contact that could have severely affected his behaviour and mental health and educational attainment through to adulthood. The behavioural problems that were identified by CAMHS which led to his exclusion from school are now virtually non-existent since he obtained the contact with his father which he wanted. She concludes that the Claimant's removal would be damaging to the lives of the boys.
28. I accept that the Claimant has had a relationship with N since birth and has consistently striven to maintain his relationship with S and adheres to the terms of the contact order. In view of the record of the boys' feelings towards their father in the social work interview and the letters from them in the Claimant's bundle I accept that it would be in their best interests that their father remain in the UK and that contact remain as it is now. They currently live with their mothers and there is no evidence to suggest that they would permit them to travel with their father to Jamaica or that it would be in their best interests to be separated from their mothers. Neither boy has any connection to Jamaica.
29. I have therefore considered whether it would be unreasonable to expect the Claimant's sons to go the Jamaica, taking into account the wider public interest considerations. Lord Justice Elias said at paragraph 103 of MA (Pakistan):
"103. In my judgment, the observation of the judge to the effect that people who come on a temporary basis can be expected to leave cannot be true of the child. The purpose underlying the seven year rule is that this kind of reasoning ought not to be adopted in their case. They are not to be blamed for the fact that their parents overstayed illegally, and the starting point is that their status should be legitimized unless there is good reason not to do so. I accept that the position might have been otherwise without the seven years' residence, but that is a factor which must weigh heavily in this case. The fact that the parents are overstayers and have no right to remain in their own right can thereafter be weighed in the proportionality balance against allowing the child to remain, but that is after a recognition that the child's seven years of residence is a significant factor pointing the other way."
30. The Court held at paragraphs 41 and 42 that the conduct of the parents is relevant to their own situation which bears upon the wider public interest and does not amount to blaming the children even if they may be prejudiced as a result. I have therefore considered the Claimant's immigration history. The Claimant entered the UK on 31 October 2001 and has been here for 16 years. He says in his witness statement that he was granted a visit visa for 21 days and overstayed. This is not acknowledged by the Respondent in the RFRL. According to his witness statement he paid an immigration adviser in 2003 to apply for leave to remain. He says he subsequently discovered this was not submitted and the person had been convicted of immigration offences. He obtained a passport by deception and was convicted as a result. In January 2011 he made an application for leave to remain on the basis of family life which was refused without a right of appeal. It is clear therefore that the Claimant has been here unlawfully since 2001 and his family life with his qualifying partner and his private life must be given little weight.
31. The maintenance of immigration control is in the public interest. Whilst the Claimant speaks English he can gain no positive rights from this and he is not financially independent. He is an overstayer and has never had the right to remain in his own right. In addition he has been convicted of deception and sentenced to 6 months imprisonment, serving three. It follows that when viewing this factors cumulatively there is a strong public interest in his removal.
32. However, the issue to be determined in relation to section 117 B (6) is how his adverse immigration history weighs in the balance against allowing the children to remain. In view of the fact that the children live with their mothers and therefore cannot leave the UK without their mothers' agreement which is not forthcoming it must be overwhelmingly in their best interests to remain in the UK. The need for immigration control cannot therefore tip the balance and it cannot be reasonable for them to leave the UK. The Claimant therefore meets the requirements of section 117B (6) and it follows that the public interest does not require his removal.
I remake the decision in this appeal by allowing it under Article 8 ECHR.
Direction Regarding Anonymity
Given that this case concerns children, I make an anonymity order. Unless and until a Tribunal or court directs otherwise, the Claimant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Claimant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
Signed Date 5 AUGUST 2017
Deputy Upper Tribunal Judge L J Murray