Tribunal decisions

The decision

IAC-AH-dh-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/17731/2015
IA/17736/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7th December 2016
On 16th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

Masooda [R] (first appellant)
{S R A] (second appellant)
(ANONYMITY DIRECTION not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Khan instructed by Lee Valley Solicitors
For the Respondent: Ms J Isherwood, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellants are mother and son and are nationals of Pakistan. They appealed to the First-tier Tribunal against decisions of the Secretary of State dated 23rd April 2015 to refuse their applications for leave to remain in the UK. First-tier Tribunal Judge Amin dismissed the appeals and the Appellants appeal with permission granted on 8th November 2016 by Upper Tribunal Judge McWilliam.
2. The background to this appeal is that the Appellants came to the UK on 16th May 2014 with entry clearance as the partner and child of the first Appellant's husband Syed Alam. They applied for leave to remain and the Respondent considered the applications under Appendix FM provisions in relation to the partner route and in relation to family life as a parent and concluded that there are no insurmountable obstacles preventing the Appellant's relationship with her partner continuing in Pakistan. The Respondent considered that Ex1 did not apply in relation to the child and the application fell for refusal under the eligibility requirements. The Respondent considered the applications under the private life provisions in paragraph 276ADE(1) of the Immigration Rules and concluded that the removal of the Appellants would not breach those provisions.
3. The husband of the first Appellant was granted indefinite leave to remain in the UK in February 2015 on the basis of his long residence in the UK. The couple have a second child, a daughter who was born on 29th January 2016. The First-tier Tribunal Judge considered the appeal in terms of the Immigration Rules and under Article 8 of the ECHR.
4. The Grounds of Appeal do not challenge the First-tier Tribunal's findings under the Immigration Rules as the relevant time for consideration of the Rules was at the time of the application. The Grounds of Appeal challenge the decision under Article 8 of the European Convention on Human Rights on the basis that the First-tier Tribunal Judge failed to give proper consideration to the fact that the Appellant's second child is a British national.
5. In his submissions Mr Khan accepted that the judge acknowledged that the Appellant had a second child [11] but submitted that the judge failed recognise that the second child is a 'qualifying child' within Section 117B (6) of the Nationality, Immigration and Asylum Act 2002 Act. He submitted that because of this the judge did not look at all of the factors. Whilst he acknowledged that British nationality is not a trump card he submitted that it is an important factor which must be considered in the context of an Article 8 assessment. He submitted that the judge had failed to consider the best interests of the British national child and whether or not it is reasonable for the child to return with the family to Pakistan.
6. Ms Isherwood submitted that, in considering Section 117B(6), as well as deciding whether there is a qualifying child the judge also had to look at whether it is reasonable to expect the child to leave the UK. She submitted that at paragraph 11 the judge acknowledged that there was a second child. She submitted that the judge set out factors in relation to reasonableness at paragraph 33. She submitted that the judge had considered the circumstances and it was open to her to conclude that it was reasonable to expect the child to leave the UK. She submitted that there were options open to the family including going back to Pakistan together, the mother and the first Appellant going back temporarily in order to apply for entry clearance, or the child remaining in the UK with her father.

Error of Law
7. In my view the judge made a material error of law in failing to appreciate or acknowledge that the first Appellant's second child and brother of the second Appellant is a British national. This inevitably affected the judge's assessment of Article 8 outside of the Immigration Rules. For example at paragraph 23 the judge found that there would not be any interference with the family life of the first and second Appellants on return to Pakistan. However in appreciation of the fact that the first Appellant's husband has indefinite leave to remain and the second child is a British citizen could have impacted on that assessment. Further, the judge went on to consider proportionality and said at paragraph 27; "The children are not qualifying children in accordance with Section 117D of the 2002 Act". This is clearly an error as the judge failed to appreciate that the second child is in fact a British national and therefore a qualifying child in accordance with Section 117D.
8. I am unable to say with confidence that, had the judge taken into account the child's British citizenship, she would have necessarily have reached the same conclusion. In these circumstances I am satisfied that the failure to take into account the fact that the child was a British citizen led to a material error of law. I therefore set aside the judge's assessment and decision in relation to Article 8 of the ECHR. As there was no challenge to the assessment under the Immigration Rules, and it was accepted by the parties that the circumstances in relation to the Rules were those at the date of application, that decision still stands.
Remaking the Decision
9. The parties accepted my decision that I would remake the decision on the basis of the evidence before me, this was because there had been no application under Rule 15(2A) of the Procedure Rules in accordance with the directions served on the parties in advance of the hearing. There was therefore no new evidence relevant to the assessment under Article 8. Further, the hearing in the First-tier Tribunal was on 4th April 2016, which is not very long ago, and there was no evidence before me as to any change of circumstances since then. In these circumstances I heard submissions from Ms Isherwood and Mr Khan and I reserved my decision.
10. Ms Isherwood submitted that I should dismiss the appeal. She submitted that the first Appellant's witness statement tells us nothing about the circumstances in the UK or in Pakistan. She submitted that there was no evidence as to why it would not be reasonable to expect the child to stay with her father while the two Appellants return to Pakistan to get entry clearance. She submitted there was no reason put forward as to why the child could not return to Pakistan on a temporary basis or why the whole family could not go back to Pakistan. She submitted that there are choices for this family. She referred to the decision in MA (Pakistan) [2016] EWCA Civ 705 and, whilst she accepted that the Court says that significant weight should be attached to a child's British citizenship, she submitted that it is not a trump card. She submitted that the second Appellant is young and that the family have the linguistic ability to manage upon return to Pakistan. She submitted that there was no evidence of the family's social integration in the UK. There is no evidence as to whether it would be difficult for the father to look after the British citizen child without the mother. She referred to paragraph 47 of MA and submitted that the Court said that it would not follow that leave must be granted where the child's best interests are in favour of remaining and that, even where the child's best interests are to stay, it may still not be unreasonable to require the child to leave. She submitted that the Court said that 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. In this case she submitted there is limited evidence in relation to the situation in the UK and in Pakistan and that therefore the public interest weighs in the favour of the Secretary of State. She accepted that the British citizen child could not be compelled to leave the UK.
11. Mr Khan submitted that it is clear from the decision in MA that the other factors in Section 117B which weigh in the public interest need not be taken into account where there is a qualifying child. He submitted that the choices put forward by Ms Isherwood are stark as, if the mother and the second Appellant were to return to Pakistan, this would lead to separation from the husband and the British national child. Whereas if all of the family go then the child will be separated from his country of birth. He relied on the decision in ZH Tanzania v SSHD [2011] UKSC 4. He accepted that British citizenship is not a trump card and that the significant weight to be attached to British citizenship can be outweighed by other factors. However, he submitted that in this case there are no adverse factors in terms of the immigration history of the Appellants and no criminality on the part of the parents. He relied on paragraph 49 of MA. He submitted that the child's best interest is to remain in the UK as a citizen and there are no powerful reasons to the contrary.
12. In remaking the decision under Article 8 I follow the steps set out by Lord Bingham in Razgar [2004] UKHL 27. I accept that Mr Alam has indefinite leave to remain in the UK and the youngest child is a British citizen. There is no dispute that the first Appellant is married to Mr Alam and that the second Appellant is their child. I am satisfied that the Appellants enjoy family life in the UK with Mr Alam and the British national child. I therefore accept that returning the first and second Appellants to Pakistan would amount to an interference with their family life. In light of the decision of the First-tier Tribunal in relation to the Immigration Rules which has not been challenged I accept that the proposed interference would be in accordance with the law.
13. In considering proportionality I begin by considering the best interests of the children in this case. The second Appellant was born on 15th November 2010 in Pakistan and lived there for the first four years of his life. He came to the UK with his mother in May 2014. I accept that the best interests of the second Appellant must be to be with his parents. The British national child is very young, she was born on 29th January 2016. Her best interests too must be to be with her parents. As she is a British national I take into account the decision in ZH Tanzania. I take into account that her father has indefinite leave to remain in the UK and I accept that it is in her best interests also to remain in the country of her nationality.
14. In considering proportionality I have taken into account the witness statement of the first Appellant. I note that much of the statement is concerned with the process of her and her husband's applications. The first Appellant says that they are a happy family and that she is under stress and facing uncertainty in her life and she referred to the birth of their second child.
15. I take into account the other documentary evidence which shows that the first Appellant has registered with a doctor. It also shows that the second Appellant has been attending primary school since September 2014 and is also registered with a GP. The tenancy agreement for Mr Alam and the first Appellant has also been submitted along with details of Mr Alam's employment and the birth certificate of the couple's second child.
16. There is limited evidence in relation to the family situation in the UK or in Pakistan. I note the oral evidence of Mr Alam as recorded at paragraph 13 of the judge's decision where it says that he confirmed that he is working full-time in the UK and the only reason he could not return to Pakistan was that he had been here for long enough and was supporting his family. It is not in dispute that Mr Alam was granted leave to remain on the basis of over ten years' residence in the UK. From the pay slips I accept that he is working on a full-time basis in the UK and supporting his family. This too has not been disputed.
17. Section 117B(1)(6) of the 2002 Act states 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."
18. The second Appellant is a qualifying child in that she is a British citizen. The issue to be determined is whether it is reasonable to expect her to leave the UK. Ms Isherwood accepted that the child could not be compelled to leave the UK. I accept that her father is employed and has been in the UK for over ten years. I take into account that he has been here for a long time and is supporting his family and is working full-time in the UK. I attach significant weight to the fact that the child is a British citizen. I take into account the best interests of the child.
19. On the other hand I take into account that the British child is very young, she is not yet one year old. She has not lived elsewhere but her mother and brother only came to the UK in 2014. The child is not in education. The second Appellant is in the early stages of his education in the UK. There is little evidence as to links in Pakistan but it appears from the findings of the First-tier Tribunal Judge that the child's parents have families in Pakistan. Both parents spent most of their adult lives there and still have cultural and linguistic connections to Pakistan. There is no evidence of any medical or other issues which would impede the child's ability to adapt to life in Pakistan. There is no evidence of any strong connections to the UK. The father has only recently been granted indefinite leave to remain. He too has retained his connections with Pakistan and there appears to be no reason why he cannot return there to live with and support his family should he wish to do so. On the basis of all of this evidence I accept that it is reasonable to expect the British citizen child to leave the UK.
20. On the basis of my findings I find that it is proportionate for the first and second Appellant to be required to leave the UK.

Notice of Decision
The decision of the First-tier Tribunal in relation to Article 8 contains an error of law and I set it aside.
I remake the decision by dismissing the appeal under Article 8.
No anonymity direction is made.

Signed Date: 13 January 2017

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD
No fee was payable therefore there is no fee award.

Signed Date: 13 January 2017

Deputy Upper Tribunal Judge Grimes