Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18609/2015

THE IMMIGRATION ACTS

Heard at Manchester, Piccadilly Decision & Reasons Promulgated
On the 13th March 2017 On the 20th March 2017

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between:
MRS RIZWANA RIASAT
(Anonymity Direction not made)
Claimant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant in the Upper Tribunal

Representation:
For the Claimant: Miss G Patel (Counsel)
For the Secretary of State: Mrs Patterson (Senior Home Office Presenting Officer)
DECISION AND REASONS
1. This is the Secretary of State’s appeal against the decision of First-tier Tribunal Judge Bannerman promulgated on the 11th July 2016, in which he dismissed the Claimant’s appeal under the Immigration Rules, but allowed the appeal on Human Rights grounds under Article 8 outside of the Immigration Rules.
2. The Secretary of State has now sought to appeal against that decision and within the Grounds of Appeal it is argued that the Learned First-tier Tribunal Judge erred in law, in that although he noted at [32] that he was required to carry out a balancing exercise, it was said that he failed to do so and that in particular, he failed to have sufficient regard to the public interest as expressed in Section 117B of the Nationality, Immigration and Asylum Act 2002. It is said that at no stage within the determination is Section 117B mentioned, nor are its requirements considered. It is therefore said that the appeal should be allowed and the determination set aside.
3. Permission to appeal has been granted by First-tier Tribunal Judge Keane on the 3rd November 2016, in which he found it was arguable that the Learned First-tier Tribunal Judge had not properly carried out the balancing exercise and that he had not mentioned or applied the Article 8 public interest considerations with reference Section 117B of Part 5A of the Nationality, Immigration and Asylum Act 2002, before allowing the appeal on Article 8 grounds.
4. Within the Claimant’s Rule 24 Response dated the 14th November 2016, prepared by Miss Patel, the contents of which I have fully taken account of and which is a matter of record and is therefore not repeated in its entirety here, it is argued, in summary, that the First-tier Tribunal Judge made very clear findings which were open to him on the evidence before him. It is argued that the Judge clearly carried out a balancing exercise between paragraphs 30 and 35 of the decision and that he noted the Secretary of State’s position at paragraph 33 and the need for proper immigration control, but at paragraph 34 had gone on to give, it is argued, clear reasons and at paragraph 35 were what were said to be compelling reasons to outweigh the public interest in removal. It was argued that the Secretary of State may not agree with the Judge’s decision, but the Judge came to his conclusions on the evidence before him by applying the appropriate law. It is further argued that in any event, even if the Judge did err in law, the error is not material because Section 117B(6) applied and that the Claimant is not liable to deportation and has a genuine and subsisting parental relationship with her daughter Saiqa Noreen Anwar, a qualifying child who is a British citizen. It was argued that under the Secretary of State’s own guidance under Appendix FM 1.0 Family Life (as a Partner or Parent) and Private Life 10-year route (August 2015) at 11.2.3, that the Secretary of State’s policy is that “Where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case 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”. It is argued that had the case been considered under Section 117B(6) the result would have been that the Claimant’s case would have been allowed under Human Rights in any event and there is therefore no material error of law.
5. It was on that basis that the case came before me in the Upper Tribunal.
Oral Submissions
6. In her oral submissions on behalf of the Secretary of State, Mrs Patterson argued that nowhere within the decision if First-tier Tribunal Judge Bannerman had Section 117B of the Nationality, Immigration and Asylum Act 2002 been referred to, nor had the principles set out therein been considered. She argued that the Judge had had regard to Section 55 of the Borders, Citizenship and Immigration Act 2009, but no consideration of the Section 117B considerations. She argued that the Judge needed to do more to make clear as to why the decision was disproportionate to the legitimate public end sought to be achieved.
7. In her oral submissions on behalf of the Claimant, Miss Patel relied upon her Rule 24 Reply. She argued that the Judge had properly looked at the case. She conceded that Section 117B had not been mentioned but argued that the principles therein had been considered within the decision. She argued the Judge had properly carried out a balancing exercise between paragraphs 34 and 35. She further argued that the Claimant did have a British citizen child, such that Section 117B(6) would mean that it would not be reasonable for the Claimant to be removed in any event and that the decision would therefore have been the same irrespective and that therefore any error was not material. She handed up the Home Office guidance from Appendix FM 1.0 Family Life (as a Partner or Parent) and Private Life 10-year route (August 2015) in this regard. She argued the Judge clearly had regard to the public interest and referred me to paragraphs 13 and 14. She submitted that the Judge had considered why there were compelling circumstances in this case. She argued there was no material error.
8. In her submissions in reply Mrs Patterson argued that Section 117B was a matter of statute and the Tribunal’s Judges had to have regard to it. She argued that it cannot be said that the Judge’s findings would have been the same irrespective, and that therefore it was a material error and the decision of Judge Bannerman should be set aside and the case remitted back for the First-tier Tribunal for a re-hearing before a differently constituted Tribunal.
My Finding of Error of Law and Materiality
9. Pursuant to Section 117A of Part 5 of the Nationality, Immigration and Asylum Act 2002, as inserted by Section 19 of the Immigration Act 2014:
“Section 117A
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts –
(a) breaches a person’s right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard –
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), “the public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).”
10. I remind myself following the case of Dube (section 117A-D) [2015] UKUT 00090 (IAC) that Sections 117A-D are not an a la carte menu of considerations that the Judge can apply or not to apply and that Judges are duty bound to “have regard” to the specified considerations. I further remind myself following the Dube case that those provisions are expressed as being binding only on a “court or tribunal” and that in the interests of good administration and consistency of decision making in Article 8 cases the Secretary of State will have regard to those considerations, and she is not directly bound to do so, but that Judges are bound to have regard to the specified considerations.
11. I further remind myself following that case that it is not an error of law to fail to refer to Section 117A-117D considerations if the Judge has applied the test he or she was supposed to apply according to its terms and that what matters is substance rather than form.
12. Although the Learned First-tier Tribunal Judge has quite properly in this case taken account of the cases of R (on the application of Chen) v Secretary of State for the Home Department (Appendix FM – Chikwamba – temporary separation – proportionality) (IJR) [2015] UKUT 189 and Chikwamba v SSHD [2008] UKHL 40, and considered whether or not it was proportionate to require the Claimant to return to Pakistan to make a further application, and has made reference to Section 55 regarding the best interests of the children, sadly, nowhere within his decision, has he either specifically mentioned the public interest considerations within Section 117B, nor has he properly taken account of those considerations.
13. As was stated by the Upper Tribunal in Dube, the considerations listed in Section 117B are not a menu that Judges can pick and choose from. The public interests considerations applicable in all cases have to be considered. There is no reference to the fact that the maintenance of an effective immigration control is in the public interests and no consideration as to whether or not the Claimant was able to speak English, or whether or not she was financially independent.
14. Nor was there any reference or consideration in Judge Bannerman’s decision as to the little weight that should be given to a private life or a relationship formed with a qualifying partner at a time when a Claimant is in the UK unlawfully or that little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious. The Judge has therefore not only failed to mention Section 117B, sadly, he has failed to take account of the considerations therein.
15. As is stated within Section 117A, the court or tribunal is required in all cases to have regard to the considerations listed in Section 117B when considering whether or not the decision made under the Immigration Act breaches a person’s right to respect for private and family life under Article 8 and as a result would be unlawful under Section 6 of the Human Rights Act 1998. I do not accept the submission of Miss Patel, that the Judge had properly taken account of those considerations, as there is no reference to them in his consideration or proportionality.
16. Although Miss Patel on behalf of the Claimant sought to argue that any error was not material, in that the Claimant is the parent of a British citizen child, such that Section 117B(6) applied, and that it would be unreasonable to expect the child to leave the UK in such circumstances, Miss Patel, despite my specifically asking her, and despite she having been Counsel at the First-tier Tribunal hearing, was unable to confirm as to whether or not such argument had been put before the First-tier Tribunal. In that regard, I note that there is nothing within Judge Bannerman’s decision to indicate that the case was put on behalf of the Claimant on the basis of Section 117B(6) in respect of there being a British citizen child and an argument that it would be unreasonable to expect that child to leave the UK.
17. Although Miss Patel referred me to one page of the Home Office guidance on Appendix FM 1.0 Family Life (as a Partner or Parent) and Private Life 10-year route (August 2015), namely page 55 of that guidance, where part of paragraph 11.2.3 is referred to, when one looks at the entirety of that paragraph which continues in fact on the next page of the guidance, although the guidance does state that where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case must always be assessed on the basis it would be unreasonable to expect a British citizen child to leave the EU with that parent or primary carer, the guidance goes on to indicate that there still has to be satisfactory evidence of a genuine and subsisting parental relationship, and that it may be appropriate to refuse to grant leave where the conduct of a parent or primary carer gives rise to considerations of such weight as to justify separation if the child could otherwise stay with another parent or alternative primary carer in the UK or in the EU such as factors including criminality or a very poor immigration history.
18. Further, following the Court of Appeal case of R (on the application of MA (Pakistan)) and others v Upper Tribunal (Immigration and Asylum Chamber) and another [2016] EWCA Civ 705, it is clear that when considering Section 117B(6) all of the public interest considerations affecting the parents have to be considered including when determining whether or not it is reasonable to expect a British citizen child or child that has been in the UK more than 7 years, to leave the UK. The fact that there is a British citizen child is not a Trump card. On the findings made by First-tier Tribunal Judge Bannerman, given that he was not seemingly asked specifically to address this issue, I do not find that the decision of the Learned First-tier Tribunal Judge would have been the same, had he considered that issue, and I cannot state that the appeal would necessarily have been allowed on Article 8 grounds in any event without further evidence being heard and further fact finding on that issue.
19. In such circumstances, I do find that regrettably, the failure of the Learned First-tier Tribunal Judge to refer to and take into consideration the principles set out in Section 117B of the Nationality, Immigration and Asylum Act 2002, does amount to a material error of law.

20. In such circumstances the decision of First-tier Tribunal Judge Bannerman is set aside in its entirety and the case remitted back to the First-tier Tribunal Judge for a rehearing de novo before a differently constituted Tribunal.

Notice of Decision
The decision of First-tier Tribunal Judge Bannerman does contain a material error of law and is set aside;
The case is remitted back to the First-tier Tribunal for rehearing before any First-tier Tribunal Judge other than First-tier Tribunal Judge Bannerman;
I make no order in respect of anonymity, no such order having been sought before me.

Signed

Deputy Upper Tribunal Judge McGinty Dated 14th March 2017