Tribunal decisions

The decision

IAC-AH-sc-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/18308/2015
IA/18309/2015
IA/18310/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 9th December 2016
On 5th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

(1) [P] Houston
(2) [A M]
(3) [P M]
(anonymity direction not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Miss Houston, principal Appellant in attendance
For the Respondent: Mr K Norton, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellants comprise a mother and her two children. The first Appellant, a female, was born on 21st April 1973. The second Appellant was born on 27th April 2004 and the third Appellant was born on 1st September 2007, and both are respectively female as well. They appealed to the First-tier Tribunal against the decision of the Respondent dated 30th April 2015, refusing their application for a variation of leave to remain in the UK. Their application was considered under Appendix FM (under the parent route) and paragraph 276ADE of the Immigration Rules. The first Appellant has two children and these children appear to have lived continuously in the UK for seven yeas preceding their application and resided in the UK since their birth. The Respondent, however, considered that they would be able to adapt to life in Jamaica. The first Appellant spent the majority of her life in Jamaica and would be aware of the culture and way of life there. She had provided no evidence that she would not be able to maintain her children in Jamaica or provide for their safety and welfare.
2. The Appellants' appeal was heard by First-tier Tribunal Judge Bart-Stewart in Taylor House "on the papers" and promulgated on 21st June 2016. The judge considered the case law of Azimi-Moayed [2013] UKUT 197 (IAC). It was noted that neither child had reached the position whereby it could be said that taking them from aged 4 (as being the most significant) that this would aid the two Appellant children as being decisive in their favour. Moreover, the adaptability of very young children meant that they could go to Jamaica. The judge presented there was "no hint of the suggestion that the welfare of the children is threatened" (paragraph 15).
3. Secondly, the judge also considered the acquisition of British citizenship for the relevant second Appellant in this case, or that at the time of the application the second Appellant had only been in the UK for nine years and not for ten years, thus enabling her to apply for British citizenship. Nevertheless, consideration was given to ZH (Tanzania) [2011] UKSC 4. The judge observed that "it would appear that citizenship for the second Appellant is an accident of being born here as it was when the mother had no leave to remain. It is not from descent. There is no evidence of her father or any other relative in the UK with whom the children may have formed an attachment" (paragraph 17).
4. Thirdly, the judge then went on (at paragraphs 20 to 21) to consider the best interests of the children on the basis of the case of JO (Nigeria) [2014] UKUT 00517. It was held by the judge that Section 55 of the BCIA 2009 was considered by the Respondent "in respect of exceptional circumstances and an adequate assessment carried out given the limited information. The Appellants had not submitted any further evidence that might cause me to interfere with the assessment ..." (paragraph 21).
5. The appeal was dismissed.
6. The grounds of application state that the judge failed to have regard to the "Zambrano principle" to the effect that the parents of a child must be granted the right of residence where a child (such as a British citizen second Appellant child), would be required to leave this country. Moreover, the reading of ZH (Tanzania) was selective in that the best interests of the child should have been a primary consideration as opposed to the mother's poor immigration history.
7. On 13th October 2016, permission to appeal was granted and on 31st October 2016, a Rule 24 response was entered by the Respondent Secretary of State whereby it was stated that, "the material matter for her [the judge] to decide was whether it would be reasonable for the children to relocate to Jamaica with the Appellant", and the judge had made a finding also open to her (paragraph 4).
8. At the hearing before me on 9th December 2016, the principal Appellant, Miss Houston, was in attendance and the Respondent was represented by Mr K Norton, although the Appellants themselves were without legal representation. Miss P Houston, the principal Appellant, had nothing to say but for reliance upon the Grounds of Appeal and insofar as to say that "I do not understand the appeal". To his great credit, Mr Norton summarised the Grounds of Appeal to the Appellant and the Appellant, at my enquiry, indicated that she would wish to say the same. For the Secretary of State, Mr Norton submitted that the issue was whether there would be "very significant obstacles" to a British citizen's child, such as the second Appellant, relocating to Jamaica. At the time of the decision, the second Appellant was not a British citizen. This may have been a potentially foreseeable consequence, but he was not a British citizen. The child was 9 years of age and not 10 years of age. The principal Appellant herself was without employment, or income, or any church support or friends. She did not have leave to remain in this country. The decision reached by the judge was open to her.
My Consideration of the Appeal
9. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are as follows.
10. First, whilst the Rule 24 response correctly states that "the material mater for her to decide was whether it would be reasonable for the children to relocate to Jamaica with the Appellant " (paragraph 4), as far as the judge was concerned, the judge failed to consider the reasonableness of exclusion of the second Appellant (whom the judge had recognised as having by now acquired British citizenship) from the European Union territory.
11. Second, the judge also attached insufficient weight to the policy guidance of the Respondent in this context. Third, the judge did not consider whether there had been a breach of Article 8 in carrying out the proportionality exercise when dealing with the question of reasonableness, given what is stated in Section 117 of the 2002 Act in that the second Appellant is a "qualifying" child, had the judge done so, on what was a appeal "on the papers", with no benefit of representations being heard by the judge, it is conceivable that sufficiently compelling circumstances could be shown to exist which would enable consideration of whether there had been a breach of Article 8 outside the Immigration Rules. This was an exercise that was not performed by the judge.
12. For all these reasons, there is an error of law. Since these are all matters of evidence for proper consideration by a decision maker, under practice statement 7.2(b) is such that it was necessary for the decision in the appeal to be remitted back to the First-tier Tribunal because of the nature of the judicial fact-finding exercise that requires consideration of these matters.

Notice of Decision
13. The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. This matter was remitted back to the First-tier Tribunal, to be heard by a judge other than Judge Bart-Stewart.
14. No anonymity direction is made.

Signed Date

Judge Juss

Deputy Upper Tribunal Judge Juss 4th January 2017