Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17522/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision & Reasons Promulgated
On 30 September 2016
On 05 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
SALAH MUHAMMAD EHMAD SALEH
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr G McIndoe of Latitude Law
For the Respondent: Mr A McVitie Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
3. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Ransley promulgated on 19 November 2015 which dismissed the Appellant's appeal against the decision of the Respondent to remove the Appellant from the UK following the decision to refuse the Appellant's claim for leave to remain on the basis of his relationship with his step-daughter
Background
4. The Appellant was born on 23 March 1976 and is a national of Libya.
5. The Appellant came to the UK on 7 September 2001 and his claim for asylum was refused on 3 March 2003.
6. 18 March 2003 the Appellant underwent an Islamic wedding ceremony with his partner [JA]. Her previous marriage was dissolved on 18 May 2004.
7. The Appellant appealed the refusal of asylum but was appeal rights exhausted on 9 February 2003.
8. 16 June 2004 the Appellant absconded but married his partner on 9 October 2004.
9. 3 September 2006 the Appellant returned to Libya. He then flew to Paris from Tripoli on a valid Schengen visa and applied for spousal leave to enter the UK on 19 December 2006 but this was refused.
10. 25 November 2010 the Appellant made further submissions and on 16 June 2011 he was granted 3 years' discretionary leave for his family life with his wife and step-daughter.
11. 2014 the Appellant separated from his wife.
12. On 15 August 2014 he made the application the subject of this appeal.
13. On 21 April 2015 the Secretary of State refused the Appellant's application. The refusal letter gave a number of reasons:
(a) The Appellant could not meet the requirements of Appendix FM as a partner as his relationship had broken down and he had no new partner.
(b) The Appellant did not meet the definition of parent in the Rules for leave under Appendix FM.
(c) There were no circumstances to warrant a grant of leave outside the Rules
The Judge's Decision
14. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Ransley ("the Judge") dismissed the appeal against the Respondent's decision.
15. Grounds of appeal were lodged arguing that the Judges assessment of Article 8 outside the Rules was flawed in that the Judge failed to engage with the argument that the Appellant had a genuine and subsisting relationship with his step-daughter and also failed to assess whether there were significant obstacles to his reintegration in Libya by reference to paragraph 276ADE(vi) of the Immigration Rules.
16. On 5 May 2016 First-tier Tribunal Judge Baker gave permission to appeal.
17. At the hearing I heard submissions from Mr McIndoe on behalf of the Appellant that:
(a) He relied on the grounds.
(b) In relation to Ground 1: section 117B (6) of the Nationality Immigration and Asylum Act 2002 he argued that the Judge had summarised the evidence in relation to the Appellants relationship with his step-daughter but had failed to recognise that inspite of the opposition of her mother the child had maintained a relationship with the Appellant.
(c) He accepted that the Appellant had no court order confirming that he had access but argued that the documents at pages showed that there was ongoing contact taken together with the Appellants oral evidence.
(d) He accepted that there was in force a non-molestation order which was in fact in relation to both the Appellants ex-wife and his step-daughter until she turned 16 on 9 June 2016.
(e) In relation to Ground 2 his argument was that due to the country situation there would be very significant obstacles to the Appellant reintegrating in Libya. He argued that while the evidence might have been insufficient to get him over the 'protection hurdle' taken together with the lengthy residence in the UK it was sufficient for the Judge to conclude that he succeeded under paragraph 276ADE(vi).
18. On behalf of the Respondent Mr McVitie submitted that:
(a) He relied on the Rule 24 Notice.
(b) He noted that the Appellant had returned to Libya in 2006 and 2014 at the time of AT.
(c) The test in 276ADE(vi) was a high hurdle and the Judge set outall of his circumstances.
(d) In relation to the suggestion that the Appellant had a subsisting relationship with his step-daughter he asked how it could be maintained if to do so was a breach of a court order.
(e) The Rule required there to be a current relationship. The Appellant may have wanted the relationship to continue but the evidence of that was very sparse. The material referred to suggested that his step-daughter did not answer the phone to him.
(f) The past relationship was not determinative of the present relationship.
The Law
19. Errors of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on facts or evaluation or giving legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
20. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue under argument. Disagreement with an Immigrations Judge's factual conclusions, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence that was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible.

Finding on Material Error
21. Having heard those submissions, I reached the conclusion that the Tribunal made no material errors of law.
22. The first ground argued that the Judge erred in her assessment of Article 8 in that she failed to adequately engage with the argument that the public interest did not require the Appellants removal where he had a genuine and subsisting relationship with a British Citizen child.
23. I am satisfied that the Judge made findings in relation to the Appellants relationship with his step-daughter which were open to her on the evidence by reference to paragraph 117B(6). The Judge was required to consider not only whether the Appellant had a historical relationship with his step-daughter but whether that relationship was subsisting. She took into account the evidence of the Appellants ex-wife and step-daughter from 2011 and concluded on the basis of that evidence that the Appellant had not played as significant a role in the care of Alana as he claimed.
24. The Judge then noted that Mr McIndoe acknowledged that the Appellant had difficulty maintaining contact with his step-daughter after the marriage break down and that the Family Court refused to make a contact order at a hearing on 11 August 2015 on the basis that his step-daughter could chose when she turned 16.
25. The Judge also took into account as relevant to the issue of whether his relationship with his step-daughter was subsisting that in June 2014 his ex-wife obtained a non-molestation order in June 2014 and this remained in force until June 2016. It is not entirely clear whether the Judge appreciated that the Order applied to both his ex-wife and to his step-daughter as Mr McIndoe acknowledged before me. Thus it seems difficult to see how the Judge could be invited to accept that a relationship was subsisting as part of a public interest assessment if such behaviour involved the Appellant in breaching the terms of a Court Order.
26. Mr McIndoe relied on documents at pages 157-158 of his bundle to suggest that the relationship was subsisting and these were specifically addressed by the Judge at paragraph 45 of her decision. Her assessment of that 'sparse' material was of course against the background of the non-molestation order. These documents consist of two undated pages of very brief Facebook messages, which appear to cover two dates in which his step-daughter acknowledges that she misses the Appellant but cannot contact him as her mum had said she could not together with confirmation that she 'missed' a call from him. I am satisfied that while it may well be that the Appellant wished to pursue the relationship with his step-daughter, and he had clearly had a role in her life because of his marriage to her mother, after the breakdown of that relationship and the non-molestation Order which was in force at the time of the hearing before her the Judge was entitled to conclude that the relationship was no longer subsisting. The Judge was entitled to conclude that the undated Facebook messages did not justify a different conclusion.
27. In relation to the second ground that the Judges findings at paragraph 26-35 in relation to paragraph 276ADE(vi) were flawed I am satisfied that the Judge engaged with the arguments and evidence placed before her in great detail and considered all of those factors that were relevant to a determination of the issue given the high hurdle set by the requirement of 'very significant obstacles.' Against a background which was based on the Appellant having spent the majority of his formative year in Libya (paragraph 34) the Judge took into account the security situation and I noted that all of the evidence before her pre dated the Country Guidance case of AT and Others (Article 15c; risk categories) Libya CG [2014] UKUT 00318 (IAC) in which the Upper Tribunal concluded there not such a high level of indiscriminate violence in Libya, within the meaning of Article 15(c) of Council Directive 2004/83/EC ("the Qualification Directive") so as to mean that substantial grounds existed for believing that an individual would, solely by being present there, face a real risk which threatens his or her life or person. The Judge also took into account that the Appellant had chosen to return to Libya in 2014 to visit his family, he speaks the national language has worked and is resourceful and is a young fit man. She was entitled to conclude that he failed to meet the requirements of paragraph 276ADE(vi)
28. I remind myself of what was said in Shizad (sufficiency of reasons: set aside) Afghanistan [2013] UKUT 85 (IAC) about the requirement for sufficient reasons to be given in a decision in headnote (1): "Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge."
29. I was therefore satisfied that the Judge's determination when read as a whole set out findings that were sustainable and sufficiently detailed and based on cogent reasoning.
CONCLUSION
30. I therefore found that no errors of law have been established and that the Judge's determination should stand.
DECISION
31. The appeal is dismissed.

Signed Date 5.10.2016
Deputy Upper Tribunal Judge Birrell