Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17653/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 6th October 2016
On 18th October 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

QAMAR [C]
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr G McIndoe (instructed by Latitude Law)
For the Respondent: Mr A McVeety (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is an appeal to the Upper Tribunal, with permission, by the Appellant in relation to a Decision and Reasons of Judge Chambers promulgated on 10th November 2015 by which he dismissed the Appellant's appeal against the Secretary of State's decision to refuse him leave to remain as a partner.
2. The Appellant is a citizen of Nigeria who first entered the UK in March 2006 as a visitor. He overstayed thereafter.
3. In 2007 the Appellant met a British woman and they had a son together born on 7th January 2010. The appellant made an application for leave to remain on the basis of his relationship with her and their son. That application was refused on 7th October 2013. That relationship ended in 2012 and the Appellant currently has, through a court order, only indirect contact with his son twice a year.
4. In late 2012 the Appellant met his wife who is a British citizen. Their daughter was born on 16th September 2013. The couple's relationship started in an unusual manner in that at the time his wife was married to someone else but wanted a child and the Appellant obliged. They have however been cohabiting since December 2014.
5. The Appellant made his current application on 24th February 2015 for leave to remain on the basis of his relationship with his wife and daughter. He and his wife were married on 30th January 2015.
6. The Secretary of State refused the application on 29th April 2015.
7. The Secretary of State did not accept that the Appellant's relationship with his wife was genuine and subsisting and refused the application. The Secretary of State also considered the parent route under Appendix FM and found that the Appellant could not meet that requirement because he lived with the child's mother. The Secretary of State also considered paragraph 276ADE and refused that also.
8. It was the Appellant's appeal against that decision that was before Judge Chambers in the First-tier Tribunal.
9. Judge Chambers did not consider whether the Appellant could meet the requirements of Appendix FM and moved straight to a consideration of Article 8 outside the Rules. He found in paragraph 24 of his Decision and Reasons that the Appellant and his wife were married and that they were in a genuine relationship of marriage. He found at paragraph 25 that the Appellant was caring for his daughter while his wife worked, although he had only exercised parental care for the past year. He did not consider whether the Appellant met the requirements of section 117B (6) of the Nationality, Immigration and Asylum Act 2002. Had he done so, in line with MA (Pakistan) [2016] EWCA Civ 705 he ought to have found that sufficient to allow the appeal.
10. However, Judge Chambers found Article 8 not a basis for circumventing the Immigration Rules and dismissed the appeal.
11. Permission to appeal was granted on the basis that the Judge had arguably erred in applying the "insurmountable obstacles" test in circumstances where the Appellant had a genuine and subsisting relationship with a British child and in failing to consider the best interests of the child and the factors in section 117B, in particular section 117B(6) and that furthermore the judge's conclusion was contrary to the Secretary of State's guidance relating to genuine relationships with British national children.
12. Permission to appeal was also granted on the basis that the Judge arguably erred in proceeding straight to a consideration of Article 8 outside the rules rather than first considering it within the Rules and in particular Appendix FM.
13. I endorse the view of the Judge who granted permission and find the First-tier Tribunal did make a material error of law in failing to consider whether the Appellant meets the requirements Appendix FM before proceeding to a consideration of Article 8 outside the rules. In so doing he also erred in failing to consider section 117B (6). Mr McVeety offered no contrary argument.
14. Those errors going to the core of the Judge's decision, I set aside the decision and it was agreed that I should proceed to re-decide it on the evidence referred to in the Decision and Reasons. The factual findings were not challenged.
15. Mr McVeety accepted that the marriage was genuine and subsisting. He accepted that the Appellant had a British child and that the Appellant lived with his wife and British child.
16. The first matter to consider therefore is whether the Appellant can meet the requirements of Appendix FM, which provide:-
"Section R-LTRP: Requirements for limited leave to remain as a partner
R-LTRP.1.1. The requirements to be met for limited leave to remain as a partner are-
(a) the applicant and their partner must be in the UK;
(b) the applicant must have made a valid application for limited or indefinite leave to remain as a partner; and either
(c) (i) the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain; and
(ii) the applicant meets all of the requirements of Section E-LTRP: Eligibility for leave to remain as a partner; or
(d) (i) the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain; and
(ii) the applicant meets the requirements of paragraphs E-LTRP.1.2-1.12. and E-LTRP.2.1-2.2.; and
(iii) paragraph EX.1. applies.
17. In this case it is accepted by Mr McVeety that the Appellant comes wihin R-LTRP.1.1(d). He does not fall for refusal under section S-LTR and he meets the requirements of E-LTRP.1.2-1.12 and E-LTRP.2.1.
18. The remaining issue then is whether EX.1 applies.
19. EX.1 provides:-
Section EX: Exceptions to certain eligibility requirements for leave to remain as a partner or parent
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; or
(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.
EX.2. For the purposes of paragraph EX.1.(b) "insurmountable obstacles" means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.
20. The Appellant meets the requirements of EX.1(a)(i). The question is thus, in accordance wish EX.1(a)(ii) whether it would be reasonable to expect the child to leave the UK.
21. In that regard I consider the Immigration Directorate Instruction, Family Migration: Appendix FM section 1.0b Family Life (as a Partner or Parent) and Private Life: 10 year Route dated August 2015. Paragraph 11.2.3 of that guidance states:-
"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 the British child to leave the EU, regardless of the age of that child. This reflects a European Court of Justice Judgement in Zambrano."
22. Later the guidance states:-
"Where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, it must always be assessed on the basis that it would be unreasonable to expect a British citizen child to leave the EU with that parent or primary carer. In such cases it will usually be appropriate to grant leave to the parent or primary carer, to enable them to remain in the UK with the child, provided that there is satisfactory evidence of a genuine and subsisting parental relationship."
23. In this case there is no dispute that the Appellant has a genuine and subsisting parental relationship with his child
24. The guidance goes on to give examples of occasions when it may be appropriate to refuse such leave which would include criminality or a very poor immigration history where a person has repeatedly and deliberately breached Immigration Rules.
25. In this case there is no element of criminality. Whilst it is true that the Appellant became an overstayer when his visitor visa expired, he has made attempts to regularise his status based on his family and private life. He has not "gone underground" or sought to avoid the authorities.
26. Despite the fact that recent case law, the most recent being MA (Pakistan) [2016] EWCA Civ 705, has addressed the question of reasonableness and the fact that the various provisions of the Immigration Rules and s.117B indicate that even where a child is British, reasonableness must be assessed, the Secretary of State's own instruction is that generally it would not be reasonable to remove a British child from the United Kingdom.
27. The Court of Appeal confirmed in MA (Pakistan) that s.117B(6) is a complete answer. If an Appellant has a genuine and subsisting relationship with a qualifying child and it would be unreasonable to expect that child to leave the UK the public interest does not require removal and there is no other basis on which removal can be justified. S.117B(6) must be read as a self-contained provision.
28. It does appear extraordinary that the Secretary of State has not amended her IDI. However, she has not and if that is the Secretary of State's policy then I give my Judgment in line with it and find it would not be reasonable to expect the child to leave the UK. On that basis the appeal is allowed under the Immigration Rules.
29. Even if the Appellant did not meet Appendix FM, he would succeed on the basis of s.117B(6).
Decision
The Appellant's appeal to the Upper Tribunal is allowed.

Signed Date 17th October 2016

Upper Tribunal Judge Martin