Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17659/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 1st & 20th September 2016
On 28th September 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 C Bates (Senior Home Office Presenting Officer)
For the Respondent: Mr M Schwenk on 01/09/2016 and Mr G Brown on 20/09/2016 (instructed by Equity Law Chambers)

DECISION AND REASONS
1. This is an appeal to the Upper Tribunal, with permission, by the Secretary of State in relation to a Decision and Reasons of Judge Ransley promulgated on 21st December 2015 by which she allowed the appeal on Article 8 grounds.
2. For the sake of continuity and clarity I will continue to refer to Mr [C] as the Appellant and the Secretary of State as the Respondent in this decision.
3. The Appellant is a citizen of Pakistan born on 28th April 1985. He has sought leave to remain on the basis of his family life in the UK.
4. The Appellant first entered the UK in August 2011 as a visitor and when his visa expired in January 2012 he overstayed.
5. He made an application to remain on Article 2 grounds in March 2013 and that application was refused without a right of appeal in May 2013.
6. In March 2014 the Appellant made an application on the basis of his family and private life. That application was refused in April 2014 without a right of appeal.
7. In October 2014 the Appellant applied again for leave to remain on the basis of his family and private life. That was refused in February 2015 with an out of country right of appeal which he did not exercise.
8. In March 2015 the Appellant applied once again for leave to remain based on his private and family life and it was the Secretary of State's decision refusing that application on 24th April 2015 which was the decision under appeal before the First-tier Tribunal.
9. The Appellant relied upon his relationship with Mrs [S] with whom he had entered into an Islamic marriage and with her two children from a previous marriage.
10. The First-tier Tribunal heard evidence from Mrs [S] that her first marriage had been an abusive one and there had been a restraining order obtained from the Family Court against her first husband. He has had no contact with the children.
11. The First-tier Tribunal heard evidence that the Appellant had assumed a parental role in relation to his two stepchildren. He is their main carer to enable Mrs [S] to go out to work.
12. The First-tier Tribunal heard evidence that Mrs [S] has suffered from anxiety and depression as a result of her difficult first marriage and relies heavily on the Appellant.
13. The First-tier Tribunal heard evidence that Mrs [S] has had no contact with her family since March 2014 because they have excluded her. They were against her marriage to the Appellant and regarded her divorce from her first husband (her cousin) as bringing dishonour to the family. She could not live in Pakistan because her ex-husband's family are in Pakistan.
14. Mrs [S] told the First-tier Tribunal that if the Appellant is required to leave the UK she would not be able to work full-time because of the children and would probably again suffer from depression. At the time of the hearing before the First-tier Tribunal she was pregnant with the Appellant's child.
15. On 1st September 2016 I found that the First-tier Tribunal had made an error of law in its decision by giving inadequate consideration to section 117B of the Nationality, Immigration and Asylum Act 2002. In particular the Judge, whilst noting that little weight should be given to a relationship formed with a qualifying partner while the person is in the UK lawfully, went on to say that that was not an exhaustive list of factors. I agreed with the Secretary of State's assertion that she had given inadequate consideration to the public interest.
16. I note that before the First-tier Tribunal the Appellant had raised protection grounds. These were dismissed by the First-tier Tribunal Judge and no challenge to that finding has been made.
17. Having found that the Judge's consideration of Article 8 was flawed I set aside the decision in relation to Article 8 and directed it to be reheard the Upper Tribunal.
18. Mr Schwenk was without papers and not in a position to proceed on 1st September. Additionally, no interpreter had been provided. I therefore indicated that I would hear the case on 20th September, a date agreed by both representatives.
19. On 20th September Mr Brown represented the Appellant.
20. Since the case was heard by the First-tier Tribunal Mrs [S] has given birth to the Appellant's child, in July 2016. There are now therefore two stepchildren aged nine and 11 and the Appellant's own child who is only weeks old.
21. I was told that Mrs [S] will be returning to work imminently with the Appellant providing child care.
22. It is accepted that all three children are British citizens.
23. The issue before me came down to a simple one; whether it would be reasonable for these British children to live in Pakistan and thus whether the Appellant can succeed on the basis of either EX.1 of the Immigration Rules or s.117B(vi) of the Nationality, Immigration and Asylum Act 2002.
24. In that regard Mr Brown relied upon 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. Mr Bates confirmed that it remains in force. 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."
25. 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."
26. In this case there is no dispute that the Appellant has a genuine and subsisting parental relationship, not only with his own child but with his two stepchildren.
27. The guide 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.
28. 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 repeated attempts to regularise his status based on his family and private life. He has not "gone underground" or sought to avoid the authorities.
29. 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.
30. The Court of Appeal confirmed in MA (Pakistan) that s.117B(vi) 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(vi) must be read as a self-contained provision.
31. 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.
32. The Secretary of State's appeal to the Upper Tribunal is allowed to the extent that the Article 8 finding is set aside but in redeciding it I allow the Appellant's original appeal against the Secretary of State's decision to refuse him leave to remain.
33. The First-tier Tribunal did not make an anonymity direction and I see no reason to make one.

Decision
The Secretary of State's appeal to the Upper Tribunal is allowed but in redeciding the appeal I allow the Appellant's appeal against the Secretary of State's decision.

Signed Date 20th September 2016

Upper Tribunal Judge Martin