Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17950/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 January 2017
On 08 February 2017

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

Secretary of State for the Home Department

Appellant
and

MISS S L D R
(aNONYMITY DIRECTION Made)
Respondent

Representation:

For the Appellant: Mr P Armstrong, Home Office Presenting Officer
For the Respondent: In person

DECISION AND REASONS

1. The application for permission to appeal was made by the Secretary of State but nonetheless I shall refer to the parties as they were described before the First-tier Tribunal, that is Miss R as the appellant and the Secretary of State as the Respondent.
2. The Secretary of State appealed against the decision of First-tier Tribunal Judge Moran promulgated on 4 August 2016 whereby the appellant's appeal was allowed against the Secretary of State's decision dated 28 April 2015 refusing her application dated 20 February 2015 for leave to remain on private life grounds.
3. The appellant is a Brazilian national born on 11 June 1990 and is now 26 years old. She was born in the UK and states she moved to Portugal in 1996 but then returned to the United Kingdom with her mother in 2003. Her understanding for the move to Portugal was because her parents did not qualify for work in the UK and went to Portugal to find work. In total she has lived in the United Kingdom for 19 years.
4. The appellant made an application for leave to remain on private life grounds only.
5. The Secretary of State's grounds for an application for permission were as follows:
(1) The judge made a material misdirection of law. The Judge of the First-tier Tribunal found the appellant could not satisfy paragraph 276ADE(vi) of the Immigration Rules as there would not be very significant obstacles to her relocation to Brazil. Having considered the appellant's relationship with her British partner and their child the Judge of the First-tier Tribunal found it would be disproportionate to expect the appellant to leave the United Kingdom but allowed the appeal on human rights grounds outside the Immigration Rules. It is the Secretary of State's contention that the First-tier Tribunal failed to identify any circumstances so compelling as to justify a grant of leave outside the Rule. The judge erred in approach to the public interest consideration under Section 117B Immigration Act 2014 as little weight should be attached to the private life and family life established when a person's immigration status was unlawful; the appellant had been an overstayer since 2003.
(2) The judge failed to give adequate reasons for findings on material matters. It was submitted that the Judge of the First-tier Tribunal had not taken into account that the appellant and her partner had not discussed what they would do if she was removed to Brazil and failed to consider whether it would be disproportionate to expect her to go to Brazil and make an entry clearance application where 100% of settlement applications are processed within 30 days.
Having found at paragraph [27] that it was clearly vital for the child to remain with the appellant the child was so young she would not have any awareness of which country she was in, the judge failed to give consideration whether it would be reasonable to go to Brazil with the child accompanied by the partner or supported by him for a short period required to make the entry clearance application.
6. At the hearing the appellant attended in person. Mr Armstrong, on behalf of the Secretary of State, submitted that the judge had failed to give adequate reasons for his decision and he referred me to the relevant paragraphs of MA Pakistan v SSSHD [2016] EWCA Civ 705 including paragraph 114. All the circumstances in relation to the reasonableness of requiring the appellant to return to Brazil should be taken into account. He accepted that the prospective success of any future application under the Immigration Rules to return to the UK could not be predicted. In effect it was not possible to guess the success of any particular future application. In essence he submits that the judge failed to consider the public interest grounds having considered there were no very significant obstacles to the appellant's relocation to Brazil.
Conclusions
7. As can be seen from paragraph [26] and paragraph [27] of the First-tier Tribunal decision there is no explanation by the judge as to why she proceeded to consider the matter under Article 8 having considered the appeal with reference to the Immigration Rules.
8. The judge set out the following:
"25. In relation to paragraph 276ADE(v) as a matter of statutory construction I find that the period of continuous residence cannot include the total of two separate periods of continuous residence separated by a period of several years. Therefore SR does not meet subsection (v) because neither of the continuous periods of residence were for at least half of her life.
26. In respect of 276ADE(vi) the key issue is whether or not there would be very significant obstacles to SR's integration into Brazil if she was to be removed there. The wording of this test indicates that it is a high threshold for SR to meet. There undoubtedly would be serious challenges to SR in relocating to a country that she has never even visited and where her first language of English is not widely spoken. I find however that she falls narrowly short of this strict test because she does speak some Portuguese and despite her strained relationship with her father could be expected to receive some assistance from him if she was removed to Brazil. Accordingly, whilst she faces significant obstacles in relocating to Brazil I cannot go as far as to find them to be very significant obstacles.
27. I go on to consider Article 8 outside the Rules. In doing so I consider the Article 8 rights of Ca and Mr C as well. They are both British citizens. Ca is 8 days old. It is clearly vital that the child remains with SR. The child is so young that he will not have any awareness of which country he is in. His British citizenship still has a value however that is to be respected notwithstanding his current lack of awareness of it. In addition Mr C is a British citizen who I am satisfied wishes to continue as a family unit with SR and their child. If SR is removed therefore it would require two British citizens to move to Brazil if their family life is to continue in any meaningful way.
28. It is in the best interests of the child to be brought up by both parents when both are willing and able to do so as they are here. This will be achieved if the child remains in the UK. It is less clear that this will be achieved if the child goes to Brazil with SR. It was apparent that SR and Mr C had not discussed what they would do as a couple if she was removed to Brazil. I cannot be sure whether Ca would remain in the UK with Mr C, whether he would go with SR or whether they would all go together.
29. Applying section 117B(6) I find that Ca is a qualifying child. I then consider whether it would not be reasonable to expect him to leave the UK. This is not the same test as whether there would be very significant obstacles to SR integrating in Brazil. I remind myself of the principles in MA (Pakistan), ante. In considering what is reasonable I must take the 'wider' approach so that in considering what is reasonable the test is not solely child-focussed. The circumstances and behaviour of SR in particular can properly have a bearing on whether it is reasonable for Ca to leave the UK. His best interests are a primary consideration but are not in themselves necessarily determinative. The respondent therefore has various factors in her favour on the issue of reasonableness including:
- The child is so young that he can be expected to adapt to wherever he goes.
- His mother speaks some Portuguese and therefore could assist him in learning the language in Brazil.
- He may be able to establish a relationship in Brazil with his maternal grandfather.
- SR is an overstayer in the UK and has been for several years, this diminishes the weight to be attached to her family life established in the UK - Rajendran (s117B - family life) [2016] UKUT 138 (IAC).
- The private life that she has carries little weight because of her precarious immigration status - s117B.
30. In my judgment however these considerations are outweighed by the countervailing arguments for SR. In particular;
- Mr C and Ca are British citizens and will be required to leave their country of citizenship.
- Mr C would lose the employment that currently will help to provide for his family. His employment prospects in Brazil would be poor due to the language barrier.
- Whilst SR is an overstayer she began that period in 2003 when she was a child brought here by her parents. She has also only 'failed' to return to a country that she has never in fact been to. The public interest in her removal therefore is not as strong as it is in many cases where a parent overstays in a country and has a child in the UK during the period in which they have overstayed.
31. Applying the Razgar test therefore I conclude that SR has established that Article 8 is engaged and that respondent has not shown that the decision is necessary and proportionate in a democratic society."
9. Since the application the appellant had given birth to a child of British citizenship. Although the decision letter had considered the fact that the appellant was in a relationship with a British citizen, and, it was argued in the decision letter that the relationship was not genuine and subsisting, that conclusion would appear to have been undermined by the fact that the appellant has subsequently produced a child. The judge does weigh relevant factors and adopts the wider approach referred to in MA Pakistan v SSHD [2016] EWCA Civ 705, identifying that if SR were removed then it would require two British citizens to move to Brazil if their family life was to continue in any meaningful way, but there was a failure to spell out the compelling circumstances for further consideration in relation to Article 8, when the judge had found no significant obstacles to relocation to Brazil under the Rules. It is the Rules which are said to set out the position of the Secretary of State and strike the balance between the Secretary of State's position and the rights of the Appellant in relation to family or private life. Having found no very significant obstacles to her return to Brazil under the Immigration Rules, in line with SS Congo v SSHD [2015] EWCA Civ 317 it was important for the judge to explain why there is a requirement for the assessment outside the Rules and see Nagre [2013] EWHC 720. There was a lack of adequate reasoning in this respect and that was an error of law.
10. I preserve, however, the finding that the British citizen child of the appellant is so young that it is vital that she remain with her mother. I also preserve the finding that the appellant was brought to the UK as a child when she had no control over her immigration status. She has received much of her education in the United Kingdom which would indicate significant levels of integration.
11. On a re-making further evidence was supplied by the appellant who has now separated from her partner owing to domestic violence. Documents were produced to me showing that there is a non-molestation order issued on 1 December 2016 against the appellant's former partner by a County Court District Judge. That non-molestation order was issued under Section 42 of the SLA in 1996. Not only is there a non-molestation order but it would also appear that the appellant's ex-partner has obtained a prohibitive steps order forbidding the mother from removing the child from the jurisdiction of England and Wales without further order of the court.
12. These constitute compelling circumstances for consideration outside the Immigration Rules. Singh v SSHD [2015] EWCA Civ 74 opines that the critical factor is whether all the relevant factors or evidence have been taken into account. Adopting the five stage approach in Razgar v SSHD [2004] UKHL 27, the appellant has family life and private life in the UK and her removal would interfere with her family life such that her Article 8 rights are engaged. The decision of the Secretary of State was on the face of it in accordance with the law and required for immigration control in order to protect the rights and freedoms of others.
13. SS Congo v SSHD [2015] EWCA Civ 317 holds that the relevant Immigration Rules should be the starting point and factored into any proportionality assessment. The Immigration Rules which might be applicable to the circumstances of the appellant and those are R-LTRPT1.1 under Appendix FM and Paragraph 276ADE. Both the applicant and the child are in the UK. Although she has not made a valid application for leave to remain as a parent, she did make an application for leave to remain under paragraph 276ADE and further to GEN1.9 a requirement to make a valid application does not apply when an Article 8 claim is raised. There were no challenges by the Secretary of State on suitability grounds. The child is now under the age of 18, is a British citizen and living in the UK and the applicant clearly now has sole responsibility for the child and is taking an active role in the child's upbringing. Further to EX.1 the applicant fulfils (a) and further to (a)(ii) it would not in the circumstances be reasonable to expect the child to leave the UK. Under Paragraph 276ADE (vi) there would appear to be very significant obstacles to the appellant's return to Brazil in the light of the court proceedings.
14. The child, however, was not in existence at the date of the application and although the remainder of the Immigration Rules might be fulfilled now they could not be fulfilled at the date of application and therefore the appellant cannot fulfil the Immigration Rules under R-LTPT or Paragraph 276ADE.
15. The child is a British citizen and ZH (Tanzania) [2011] UKSC 4 highlighted that the best interests of the child is a primary consideration although not a 'trump' card and that British citizenship is a significant factor although not necessarily determinative. The parents would not appear to be married and parental responsibility lies at present with the mother but contact with the child's father is subject to court proceedings. There is no indication of parental responsibility on behalf of the father (they are unmarried), and in view of the proceedings that have been issued it is unlikely this child will be allowed to leave the jurisdiction; the father is a British citizen. Although this is a very young child, the child's interests are to remain with the mother and as a British citizen the child also has the right to remain in the UK. I acknowledge that this is one factor but I drew the attention of Mr Armstrong to the Secretary of State's current guidance in relation to family migration entitled Immigration Directorate Instruction Family Migration Appendix FM Section 1.0(b) Family Life (as a Partner or Parent) and Private Life: 10 Year Routes confirm at 11.2.3 that:
"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 that British child to leave the EU, regardless of the age of that child. This reflects the European Court of Justice judgment in Zambrano."
16. Mr Armstrong submitted that this had to be read in light of MA (Pakistan), and the wider circumstances. Nonetheless the current circumstances before me are that the appellant has a very young child (and I would not expect a child of 8 days old to be removed by aeroplane on a long flight to Brazil) and she has now separated from her partner and is clearly the primary carer of a child whose best interests will be to remain with her mother and in the United Kingdom. There is a non-molestation against the former partner and secondly there is a prohibited steps order against the appellant removing the child from the jurisdiction.
17. I have taken into account the wider circumstances including Section 117 of the Nationality Immigration and Asylum Act 2002 and the public interest considerations applicable in all cases

(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English-
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to-
(a) a private life, or
(b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(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 appellant speaks English although there is no evidence that she is independent financially. The conduct of the parent is a relevant consideration, under EV Philippines, and the appellant is an overstayer, but, as identified by the First-tier Tribunal she has only failed to return to a country she has never been to and was brought to the UK as a child where she has been educated both at secondary and university level. She has lived in total in the United Kingdom for 19 years, albeit not continuously, and is only 26 years old. I understand her mother remains in the UK and the appellant is estranged from her father in Brazil. There was no issue taken with the credibility of the appellant in this regard. I take this into account when according weight to her private and family life in relation to Section 117B. As I have indicated above, but for the fact that the child did not exist at the date of application (there was no objection by the Secretary of State that this fact should be considered) I find the appellant would have succeeded under both Appendix FM and Paragraph 276ADE. Ultimately, the appellant has a genuine and subsisting parental relationship with a qualifying child (British citizen) and not only is it unreasonable to expect the child to leave the United Kingdom but at present it is unlikely that the child can leave the jurisdiction.
19. The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). I preserve the sections of the First-tier Tribunal judgment as indicated. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007) and remake the decision under section 12(2) (b) (ii) of the TCE 2007
Notice of Decision
20. The appeal of Miss R is allowed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings. This is because the matter involves a minor.

Signed Helen Rimington Date 7th February 2017

Upper Tribunal Judge Rimington

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make no fee award because of the developing nature and complexity of the case.

Signed Helen Rimington Date 7th February 2017

Upper Tribunal Judge Rimington