Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18472/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 March 2017
On 27 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS

Between

Secretary of State for the Home Department
Appellant
and

GALISON AMOS LEMANI
(anonymity direction not made)
Respondent

Representation:
For the Appellant: Mr C Avery, Home Office Presenting Officer
For the Respondent: Ms A Vatish of Counsel instructed by Jacobs & Co Solicitors

DECISION AND REASONS

1. This is an appeal against the decision of First-tier Tribunal Judge Onoufriou promulgated on 10 August 2016 allowing the appeal of Mr Galison Amos Lemani against a decision of the Secretary of State dated 30 April 2015 refusing his human rights claim.

2. Although before me the Secretary of State for the Home Department is the Appellant and Mr Lemani is the Respondent, for the sake of consistency with the proceedings before the First-tier Tribunal I shall hereafter refer to Mr Lemani as the Appellant and the Secretary of State for the Home Department as the Respondent.

3. The Appellant was born on 5 February 1971. His nationality seems still to be a matter not entirely settled. The Respondent has referred to him as being a national of Zimbabwe. The Appellant has referred to himself variously as being a national of South Africa and also as being stateless. For the purposes of the proceedings before me today it seems to me unnecessary to resolve that matter, although I should perhaps add that Ms Vatish indicates that it is the Appellant’s position that he is essentially South African, albeit at the present time he holds a travel document for no country.

4. The Appellant’s immigration history has also been a matter of controversy, in particular in respect of the date of his last entry to the United Kingdom. I will return to this matter later. What is not controversial is that on 9 February 2010 he was sentenced to eight months’ imprisonment for having obtained a British passport by deception in that he had made use of a false birth certificate. In consequence his British citizenship was revoked.

5. Finding himself without status, the Appellant made a human rights claim based on Article 8 of the ECHR on 23 January 2013. His claim was based in significant part on the length of time he had been present in the United Kingdom, and on the family life that he had established here with his wife, Ms Chawapiwa Lemani to whom he was married in Lewisham on 9 November 2000, and also in respect of their children. Particular reference has been made in these proceedings to four children of the family, that is specifically three minor children presently aged between 5 and 15 and a 19 year old daughter who has learning difficulties and is presently in college and despite being over 18 appears to be treated very much still as a ‘child’ of the family within the literal meaning of that word. The Appellant’s wife and children are all British citizens. In addition there are further children present in the United Kingdom albeit living as independent adults: the Appellant and his wife have two children of 24 and 26, and the Appellant’s wife also has a daughter of 29 years of age.

6. The Appellant’s application was refused on 30 April 2015 for reasons set out in a ‘reasons for refusal’ letter (‘RFRL’) of that date. The Respondent gave consideration to the Appellant’s application in the RFRL in the first instance by reference to family life under the partner route of Appendix FM. The suitability criteria were identified and listed at paragraph 12 of the RFRL, and at paragraph 13 it was stated that the Appellant did not satisfy the suitability requirements with particular reference to SLTR.1.6 which is in these terms:
“The presence of the applicant in the United Kingdom is not conducive to the public good because their conduct (including convictions which do not fall within paragraphs SLTR1.3-1.5) character, associations or other reasons make it undesirable to allow them to remain in the United Kingdom.”
In this regard the Secretary of State said this at paragraph 13:
“Your exclusion from the UK is conducive to the public good because you used deception to gain entry to the UK. You used a false birth certificate in order to gain a British passport and remained in the UK. Your wife then entered the UK and was given indefinite leave to remain on 1 February 2003 due to her being married to a British citizen. She subsequently gained British citizenship as did your four UK born children as a result of your initial deception. You therefore fail to meet the requirements for leave to remain because paragraph SLTR1.6 of Appendix FM of the Immigration Rules applies.”

7. For completeness I should say that although there was a point at which the Appellant’s wife’s citizenship was also revoked it appears that that has since been restored to her. I am also given to understand that the children have registered as naturalised citizens in their own right and in any event their citizenship status was never revoked.

8. The Respondent, having determined that the Appellant could not satisfy the requirements of the ‘partner route’, nonetheless went on to consider the other requirements relevant to the grant of leave to a partner and accepted at paragraph 16 of the RFRL that the Appellant met the eligibility requirements by reference to his marriage to his wife. Consideration was not given to any of the financial requirements and indeed it appears that no such evidence was filed, and accordingly the Respondent went on to consider paragraph EX.1 further to LTRP.1.1(d)(iii). In this regard the Secretary of State at paragraph 20 said this in part:
“It is considered that you do not meet the requirements above because there are no insurmountable obstacles for you and your spouse returning to Zimbabwe alongside your four children.”

9. It is to be noted that whilst ‘insurmountable obstacles’ is indeed the appropriate test when considering the circumstances of a spouse, it is not the appropriate test under paragraph EX.1 when considering the circumstances of a child who is a British citizen or who has lived in the United Kingdom continuously for at least seven years preceding the date of application. In respect of a child the test as set out at EX.1(a)(ii) is “it would not be reasonable to expect the child to leave the United Kingdom”. Indeed I pause to note that it is not apparent that the Respondent gave express consideration to the issue of ‘reasonableness’ in the context of considering the partner route. The only reference to the circumstances of the children, other than that set out at paragraph 20, that approaches a consideration that might encompass the concept of reasonableness is to be found later on in the RFRL under the heading of ‘Exceptional Circumstances’ at paragraphs 46 and 47:
“46. You could return to Zimbabwe with your wife and children and would be able to support them whilst they adjusted to life there. You have not provided any evidence which indicates that you would be unable to maintain your children in Zimbabwe or that you would be unable to provide for their safety and welfare.
47. Although your children may currently be enrolled in education in the United Kingdom it is clear form objective information contained in the Country of Origin Information Service Report on Zimbabwe of 30 July 2012 that Zimbabwe has an education system which your children would be able to access.”

10. In my judgement those passages in the RFRL do not remotely approach a full and proper consideration of whether or not it would be reasonable to expect the minor children - both born in the London Borough of Greenwich, now aged 12 and 15 and who have been present in the United Kingdom since birth and are fully embedded in the educational system here – to quit the UK. The mere availability of an educational system in Zimbabwe is not determinative of the issue. Analogous observations might be made in respect of the 19 year old with learning difficulties who has been present in the United Kingdom for a considerable period of her life albeit that she is not, strictly speaking, a minor.

11. Be that as it may, the Respondent also went on to consider the Appellant’s application by reference to the ‘parent route’, but essentially concluded at paragraph 29 that the parent route was not open to the Appellant because the spouse route was theoretically open to him.

12. The Respondent also considered private life with reference to paragraph 276ADE(1). In this regard the suitability requirements of SLTR.1.6 were also applicable. Moreover, the Respondent was not satisfied that the Appellant had been present in the United Kingdom for at least twenty years so that 276ADE(1)(iii) did not apply in his case.

13. The Appellant appealed to the IAC.

14. The First-tier Tribunal Judge allowed the appeal for reasons set out in his Decision and Reasons.

15. The Respondent sought permission to appeal which was granted by Upper Tribunal Judge Martin on 19 December 2017.

16. It is common ground before me today that the framework of the appeal was that governed by sections 82 and 84 of the Nationality, Immigration and Asylum Act 2002 as amended by the Immigration Act 2014. Because the Appellant had made a human right application albeit prior to the amendments introduced by the 2014 Act, the decision in his case being taken after the commencement of that Act meant that the available grounds of appeal were those set out in the amended 2002 Act - and in the Appellant’s case that meant, in practice, the ground of appeal under Section 84(2): “an appeal under Section 82(1B) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under Section 6 of the Human Rights Act 1998”.

17. Although the available ground of appeal provides in essence a freestanding human rights based ground of appeal, it is nonetheless in cases such as this always relevant to take as a starting point the Immigration Rules. In summary in this regard, it may be seen from the recitations above from the RFRL that in the Respondent’s view the Appellant fell short of satisfying the Immigration Rules under Appendix FM by reference to suitability and paragraph EX.1, and fell short of satisfying the Immigration Rules in respect of private life under paragraph 276ADE(1) by reference, again, to suitability, and also the length of time that he had been present in the United Kingdom.

18. The First-tier Tribunal Judge heard evidence from the Appellant and also had the benefit of submissions from the Respondent’s representative and from Ms Vatish (who also appeared below). At paragraph 9 it may be seen that the Home Office Presenting Officer essentially relied upon the contents of the RFRL, additionally making reference to the Appellant’s conviction and arguing that the Secretary of State had given full consideration to the question of whether there existed any exceptional circumstances.

19. Ms Vatish’s submissions are set out at paragraphs 10-13 of the decision of the First-tier Tribunal Judge. I do not propose to recite those paragraphs in full, but I do consider it appropriate to emphasise certain points that were clearly being presented on behalf of the Appellant.
(i) At paragraph 10 the Judge records that Ms Vatish argued that the Appellant only had one criminal conviction and had otherwise not committed any criminal offence: “she said that whilst the crime was serious the appellant was not of risk to the public as it was not a violent or drug related crime”.
(ii) At paragraph 12 of the submissions exceptional circumstances were identified in the following way:
“She relied on Section 55 of the Borders, Citizenship and Immigration Act 2009. Three of his children are aged 5, 11 and 14 he had has an autistic child aged 19, all of whom he supports. He has not returned to South Africa in 23 years and has no family members, house or job there. His wife and children have not been deprived of their British nationality.”
(iii) At paragraph 13 the submission is recorded, “there was no risk of re-offending”.

20. The Judge then sets out his findings of fact and credibility at paragraphs 15 and 16. In respect of the Appellant’s length of residence in the United Kingdom the Judge says this, starting at paragraph 15:
“First of all I am inclined to believe that the appellant came to the United Kingdom before 2003 as there is a marriage certificate showing he was married to his wife on 9th November 2000 at Lewisham Registry Office. There is also a birth certificate for his daughter, Kirsty, dated 31st January 2002 in which he is named as the father. Although there is no documentation showing he arrived in 1993, in view of this evidence I am inclined to believe him”.
The Judge then says this at paragraph 16 in respect of the length of time the Appellant has been in the United Kingdom:
“Taking into account the period the appellant has spent in the United Kingdom which is at least 16 years and most likely 23 years…”

21. It seems to me that the Judge was making a finding of fact on a balance of probabilities that he accepted the account of the Appellant’s presence in the United Kingdom since 1993. That is a significant finding in that it gets the Appellant over the threshold level of 276ADE(1)(iii). The remaining issue under 276ADE would therefore be the issue of suitability. As already identified, suitability is common also to Appendix FM.

22. I have set out above the relevant provision in the Immigration Rules in respect of suitability. It seems to me that that provision must be read alongside the similar provisions at SLTR.1.3 to 1.5. Paragraphs 1.3 to 1.6 all give instances where an applicant’s presence is to be considered not conducive to the public good. Whilst these are all different in nature, in my judgement SLTR.1.6 must be construed in a manner similar to the other provisions, that is to say that the threshold must in some way be comparable to – in the sense of equitable with - the other sorts of conduct that constitutes a presence being not conducive to the public good.

23. Before me the Respondent raises criticisms of the clarity of the Judge’s reasoning throughout the findings at paragraphs 15 and 16. It seems to me that there is considerable force in those criticisms. With the best will in the world, in particular at paragraph 16, the analysis lacks clarity. Paragraph 16 reads in part as follows:
“For the reasons set out in the letter of refusal and unchallenged by Ms Vatish the appellant would appear not to satisfy the requirements of the Immigration Rules because, according to the respondent, his exclusion from the United Kingdom was conducive to the public good because he used deception to gain entry to the United Kingdom – SLTR.1.6 of Appendix FM. As the appellant is of South African origin and not Zimbabwean if he was returned anywhere, it would have to be to South Africa and therefore there would be insurmountable obstacles in returning him there as there is no basis for his wife and children to be allowed to go and live in South Africa. However, bearing in mind the appellant’s offences were committed in 2000, again evidence that he entered the United Kingdom before 2003, i.e. some 16 years ago, I do not consider that he is a threat to the public and that the public interest is engaged.”

24. It is perhaps convenient to take in isolation for a moment the reference to the return to South Africa and there being, in the Judge’s finding, “no basis for his wife and children to be allowed to go and live in South Africa”. It is clear that there was no evidence before the First-tier Tribunal Judge with regard to the system of immigration control in South Africa. In particular there was nothing to suggest that a South African national could not be joined in South Africa by a British citizen wife or child. On the face of it, it would be surprising if there was a system of immigration control that prohibited the entry of a British citizen spouse and child of a South African national. The Judge has in any event reached a conclusion without any apparent evidential foundation. This is a matter raised expressly in the challenge by the Respondent, and in my judgment it constitutes a sound basis of challenge on this particular narrow point.

25. Be that as it may, the impression of an absence of clarity in the Judge’s reasoning is given when comparing what is said in the first part of paragraph 16 in respect of the apparent engagement of SLTR.1.6, and what is then said later on to the effect that the Judge does not consider the Appellant to be a threat to the public, compounded by the subsequent ambiguous reference to the public interest being engaged.

26. Ms Vatish has suggested during the course of submissions that she did not make any concession in respect of SLTR.1.6, and indeed it seems to me in substance that those passages of her submissions that I have cited above where she is addressing the nature of the Appellant’s criminal past, the absence of any other offending, and the absence of any risk to the public, were all submissions focused around the question of whether or not the Appellant’s presence in the United Kingdom was not conducive to the public good. Indeed it seems to me although there is a significant lack of clarity to the Judge’s reasoning in this regard that it is clear enough that he was in effect ‘feeling his way’ to a conclusion that indeed there was no element of the Appellant’s continuing presence in the UK being non-conducive to the public good. Nonetheless, I have great sympathy with the Secretary of State’s challenge that the Judge quite simply has not set that out with clarity.

27. I turn next to the position in respect of the children. I have already indicated that in the RFRL there does not seem to have been any proper consideration in respect of EX.1. The Judge in turn does not make any express finding with regard to the reasonableness of the children leaving the United Kingdom, but does seem to proceed on the assumption that as they are British they will remain. He says this at paragraph 15:
“All his children and his wife are British citizens so if he were removed they would not be obliged to go with him. However, there would be a clear disruption of the family and the issue would then be whether it would be proportionate to remove the appellant”.
In this context, and further to the observations above, the premise adopted by the Judge is consistent with the wholly sustainable notion that there is nothing in this case that points in the direction of it being reasonable for the 12 year old and 15 year old children to be expected to leave the United Kingdom.

28. Taking all of these matters in the round, it seems to me in substance that the Judge has reached a finding favourable to the Appellant on the issue of the length of his residence in the United Kingdom. It also seems to me that there is nothing really that could be said to suggest that the children’s circumstances did not engage the provisions of EX.1, subparagraph (a)(ii). It also seems to me that the Judge was in substance, albeit with serious infelicity of expression, reaching a conclusion that the Appellant’s presence in the United Kingdom could not be said to be not conducive to the public good - a matter in respect of which the burden of proof would in any event be on the Respondent. In those circumstances, in substance the Appellant meets the requirements of Appendix FM on the partner route, and also the requirements of private life by reference to 276ADE.

29. Fair criticism is also made of the Judge in that he does not seem to have descended to an analysis of section 117B of the 2002 Act. However, if it is the case that the Appellant in substance meets the requirements of the Rules it seems to me that the public interest considerations set out in section 117B are in substance subsumed by the satisfaction of the Rules - because the Rules are supposed to indicate where proportionality lies in the generality of cases.

30. Further to the foregoing, I acknowledge that the Respondent has appropriately sought to challenge the substance of the Judge’s findings and the clarity of his reasoning, and indeed has identified areas where the reasoning is deficient to an extent that it could be said to amount to an error of law. However, in all of the circumstances of this particular case in my judgement it is appropriate for me to decline to exercise the discretion inherent in section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 to set aside the decision, and instead I reach the conclusion that the decision of the First-tier Tribunal Judge should be allowed to stand. If it were otherwise and it fell to me to re-make the decision in this appeal I observe (as seemed to be agreed by the representatives) that this is a matter that could be determined on the basis of submissions; further, essentially for the reasons indicated above, I would reach the conclusion that the Appellant has demonstrated in substance that he meets the requirements of the Immigration Rules and that that in the overall circumstances of the case is sufficient to indicate the proportionality balance lies in his favour.

31. I recognise that some of the analysis I have set out above might be said to take on a flavour of re-making the decision in any event, or otherwise filling the very considerable gaps in the Judge’s decision. In the ordinary course of events I would be extremely slow and reluctant to adopt such an approach. However, I am satisfied that in substance the Judge has essayed a decision that finds considerably in the Appellant’s favour giving very considerable weight to the circumstances of the children. Bearing in mind the imperative of protecting the best interests of the children I consider it expedient that the matter be dealt with in this way. Accordingly, as I say, whilst I acknowledge that there are errors in the Judge’s decision, ultimately the overall conclusion is correct. The only qualification I make is that the appeal should be stated as having been allowed on human rights grounds - and not by reference to being not in accordance with the law and the Rules - because that is the foundation of the appeal pursuant to section 84(2).

Notice of Decision
32. The decision of the First-tier Tribunal contained no error of law sufficient to justify it being set aside.

33. The decision of the First-tier Tribunal stands, save that the decision is to be expressed as the appeal being allowed on human rights grounds only, pursuant to section 84(2) of the 2002 Act.

34. No anonymity direction is sought or made.

The above represents a corrected transcript of an ex tempore decision given at the conclusion of the hearing.

Signed: Date: 24 March 2017

Deputy Upper Tribunal Judge I A Lewis