Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA176552015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 16 May 2016
On 17 June 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

The SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ABDUL AZIZ MOHAMMED
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr Walker, Senior Home Office Presenting Officer
For the Respondent: Mr Shah, Maz Shah Legal

DECISION AND REASONS
1. I shall refer to the appellant as the respondent and the respondent as the appellant (as they appeared respectively before the First-tier Tribunal). The appellant, Abdul Aziz Mohammed, is a male citizen of South Africa who was born on 9 June 1975. He appealed against a decision of the respondent refusing his application for leave to remain as a partner and/or parent of a person present and settled in the United Kingdom. The application was refused on 23 April 2015. The First-tier Tribunal (Judge Hindson) in a decision promulgated on 18 September 2015 allowed the appeal under the Immigration Rules. The Secretary of State now appeals, with permission, to the Upper Tribunal.
The appeal was on the basis that the appellant claimed to satisfy paragraph E-LTRPT of Appendix FM of HC 395 (as amended)
E-LTRPT.1.1. To qualify for limited leave to remain as a parent all of the requirements of paragraphs E-LTRPT.2.2. to 5.2. must be met.
Relationship requirements
E-LTRPT.2.2. The child of the applicant must be-
(a) under the age of 18 years at the date of application, or where the child has turned 18 years of age since the applicant was first granted entry clearance or leave to remain as a parent under this Appendix, must not have formed an independent family unit or be leading an independent life;
(b) living in the UK; and
(c) a British Citizen or settled in the UK; or
(d) has lived in the UK continuously for at least the 7 years immediately preceding the date of application and paragraph EX.1. applies.
E-LTRPT.2.3. Either-
(a) the applicant must have sole parental responsibility for the child or the child normally lives with the applicant and not their other parent (who is a British Citizen or settled in the UK); or
(b) the parent or carer with whom the child normally lives must be-
(i) a British Citizen in the UK or settled in the UK;
(ii) not the partner of the applicant (which here includes a person who has been in a relationship with the applicant for less than two years prior to the date of application); and
(iii) the applicant must not be eligible to apply for leave to remain as a partner under this Appendix.
E-LTRPT.2.4.
(a) The applicant must provide evidence that they have either-
(i) sole parental responsibility for the child, or that the child normally lives with them; or
(ii) direct access (in person) to the child, as agreed with the parent or carer with whom the child normally lives or as ordered by a court in the UK; and
(b) The applicant must provide evidence that they are taking, and intend to continue to take, an active role in the child's upbringing.

Immigration status requirement
E-LTRPT.3.1. The applicant must not be in the UK-
(a) as a visitor; or
(b) with valid leave granted for a period of 6 months or less, unless that leave was granted pending the outcome of family court or divorce proceedings;
E-LTRPT.3.2. The applicant must not be in the UK-
(a) on temporary admission or temporary release, unless the applicant has been so for a continuous period of more than 6 months at the date of application and paragraph EX.1.applies; or
(b) in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX.1. applies.
Financial requirements
E-LTRPT.4.1. The applicant must provide evidence that they will be able to adequately maintain and accommodate themselves and any dependants in the UK without recourse to public funds, unless paragraph EX.1. applies.
E-LTRPT.4.2. The applicant must provide evidence that there will be adequate accommodation in the UK, without recourse to public funds, for the family, including other family members who are not included in the application but who live in the same household, which the family own or occupy exclusively, unless paragraph EX.1. applies: accommodation will not be regarded as adequate if-
(a) it is, or will be, overcrowded; or
(b) it contravenes public health regulations.
English language requirement
E-LTRPT.5.1. If the applicant has not met the requirement in a previous application for leave as a parent or partner, the applicant must provide specified evidence that they-
(a) are a national of a majority English speaking country listed in paragraph GEN.1.6.;
(b) have passed an English language test in speaking and listening at a minimum of level A1 of the Common European Framework of Reference for Languages with a provider approved by the Secretary of State;
(c) have an academic qualification recognised by UK NARIC to be equivalent to the standard of a Bachelor's or Master's degree or PhD in the UK, which was taught in English; or
(d) are exempt from the English language requirement under paragraph E-LTRPT.5.2.; unless paragraph EX.1. applies.
E-LTRPT.5.2. The applicant is exempt from the English language requirement if at the date of application-
(a) the applicant is aged 65 or over;
(b) the applicant has a disability (physical or mental condition) which prevents the applicant from meeting the requirement; or
(c) there are exceptional circumstances which prevent the applicant from being able to meet the requirement.
2. The appellant accepted that he could not succeed under the partner route of Appendix FM because the appellant and his partner were not married and did not live together. The Secretary of State had considered the application of the appellant both under the partner route and under the so-called parent route but found, in respect of the latter, that the appellant had "not provided sufficient evidence you are taking and intend to continue to take an active role in your child's upbringing."
3. In his evidence to the First-tier Tribunal, the appellant explained that he had met his partner in August 201 and that she has one child from a previous relationship and two children with the appellant. The partner lives with the children. The judge recorded [12] that:
"The couple do not live together because that would adversely affect her benefit entitlement and cause financial hardship. The appellant wants to work but is prohibited from doing so by his lack of any status in the UK. He will find a job once he is legally able to do so. He is currently living rent free with a friend."
The judge noted [13] that the appellant and his partner spend most of the time at home with the partner and that the appellant takes care of the children whilst the partner is at work.
4. The application by the appellant was refused by the Secretary of State because the Secretary of State did not consider the appellant met the requirements of E-LTRPT 2.4(b). No reasons were given in the refusal letter. In a brief decision, Judge Hindson found that, although the appellant and his partner had shown complete disregard for UK immigration law, they had given truthful evidence. The judge found [22] that the appellant was taking and continued to take an active role in his children's upbringing.
5. There is a difficulty with the appellant's application for limited leave to remain as a parent. The child requirements (see above) are satisfied but it is difficult to see, on the facts of the present appeal, that E-LTRPT 2.3(b)(ii) is met in this case. As the judge recorded, the children live with the appellant's partner. However, the partner of an applicant is expressly excluded by subparagraph (ii). This requirement appears to underline the basis of the appeal now brought by the Secretary of State namely that "The rule is clearly intended as an avenue for parents who are separated from the other parent. As such the appellant's application clearly could not meet the requirements of the Rules." A requirement in the rule that a person who is the parent or carer of the child or children must not be the partner of the applicant appears expressly to exclude those individuals living in the sort of circumstances described by the present appellant in his evidence to the Tribunal. It is clear from the evidence that, but for the financial implications, the appellant would live with his partner and the children. However, the appellant's partner does not cease to be his partner for the purposes of the Immigration Rules simply because the two individuals are not living together in the same house. She is his partner who so happens to live (for reasons not at all connected with the subsistence of their relationship) separately from the appellant at the present time. It follows that the judge was wrong to find that the appellant met the requirements of the Immigration Rules. I therefore set aside the decision of Judge Hindson and have remade the decision. For the reasons I have given, the appellant cannot succeed under the parent route. The appellant accepts that he cannot succeed under the partner route.
6. Judge Hindson did not address Article 8 presumably because he allowed the appeal under the Immigration Rules. The appellant might perhaps argue that as a result of his present living arrangements, he falls between the parent and partner provisions of the rules. The fact remains that he did not make any such argument. Indeed, I heard no argument at all as regards Article 8. Although his living arrangements do not fall squarely within the provisions of the rules, that is a matter of choice for the appellant and his partner; if they chose to live together, he may choose to apply again. However, that is a matter for the appellant and, as matters currently stand, I cannot find that any interference caused by the immigration decision is disproportionate. It follows that his appeal should be dismissed.
Notice of Decision
7. The decision of the First-tier Tribunal which was promulgated on 18 September 2015 is set aside. I have remade the decision.
8. The appellant's appeal is dismissed under the Immigration Rules.
9. The appeal is dismissed on human rights grounds (Article 8 ECHR)

Signed Date 1 June 2016

Upper Tribunal Judge Clive Lane

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 1 June 2016

Upper Tribunal Judge Clive Lane