Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18768/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 February 2017
On 24 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

Mr LWANGA OMONDI NYAMBARE
(NO ANONYMITY ORDER MADE)
Appellant
v

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr S. Jaisri, counsel instructed by the Legal Rights Partnership
For the Respondent: Mr T. Melvin, senior Home Office Presenting Officer

DECISION AND REASONS

1. This appeal came before me on 28 November 2016 for an error of law hearing. In a decision promulgated on 6 January 2017, I found an error of law and I append a copy of that decision. I adjourned the appeal for a resumed hearing before the Upper Tribunal, which took place on 20 February 2017.
Hearing

2. I heard evidence from the Appellant, who adopted his statement of 9.2.16 and his supplementary statement of 6.2.17 was also adopted. The Appellant was cross-examined by Mr Melvin, when he confirmed that he and his
wife currently live together in a 2 bedroom flat in Reading, which they are renting. He was not working because he is not allowed to work. The Appellant confirmed that his wife is working and that she is a mortgage adviser with the Royal Bank of Scotland. He said that she works full time and that she has just gone back to work after having been on maternity leave. The Appellant confirmed that he looks after the children. He said that they do not
have any immediate family in the area. He confirmed that if the appeal were to be allowed he intended to work, probably part time. He said that since he completed his degree in 2005 he has been involved with his Church and he helps out in activities and assists the local community. When asked how work would affect him looking after the children, he replied that one way would be to work a couple of hours when his wife is at home maybe at the weekend. It was a matter of paying childcare versus having extra income. When asked if he intended to support his children he replied “Yes, very much.” There was
no re-examination.

3. The Appellant’s wife, Ms Karanja was then called to give evidence and adopted her statements of 9.2.16 and 6.2.17. She was cross-examined by Mr Melvin, when she confirmed that she is currently working, as a mortgage adviser for Nat West. She confirmed that Nat West is part of the RBS. She was asked whether she had other business interests and she confirmed that she has two businesses: Berkshire Logs and an on-line server called EpostGuru , which sells servers and assists generally in hosting websites. She confirmed that she is the registered director of these companies. Ms Karanja further confirmed that she currently lives with her husband and that he cares for the children. She said that she works full time: 9 until 5, Monday to Friday. She said that there were no other family members in the area who could care for the twins. When asked how the Appellant cares for the children, she replied that every day he stays at home to look after the twins and that he feeds them and changes their diapers. She said that they wash the children together, taking one child each and that they also try to go to medical appointments together because they need to hold one child at a time. She said that her husband very much shows good parental responsibility for the children and that he bottle feeds one of their daughters because she does not want to breastfeed and that they take it in turns, otherwise they would be awake for the whole night. The witness confirmed that she was on maternity leave from May 2016 until February 2017. She said that there were some sleepless nights but she is getting used to it and getting back to work. She said that she misses the girls at work but it is good to be able to provide for them. There was no re-examination.

Submissions

4. On behalf of the Secretary of State, Mr Melvin submitted that the point was very narrow and that is whether the Appellant has a genuine parental relationship with his two British citizen children. He said that it was not his position to concede any of the points but he would say that he has no reason to doubt the credibility or genuineness of the Appellant and Sponsor who gave evidence before the Upper Tribunal and that if I found the requirements of the Rules were met it would seem that I could allow this appeal. He stated that the only point he would seek to make is that this was not an appropriate case for wasted costs, given that it was necessary for this Court to look at the issue of the genuineness of the relationship between the Appellant and his children, who were born since the last hearing before the First tier Tribunal Judge.

5. On behalf of the Appellant, Mr Jaisri submitted that it was necessary to conduct a balancing exercise of the family’s rights on the one hand, given that two children are British Citizens against the one negative element of the claim, which is the fact the Appellant is an overstayer, which needs to be balanced in the proportionality exercise, as set out at [14] of his skeleton argument. In respect of the issue of costs, he submitted that it was an obvious appeal to be conceded given the length of overstay cf. MA (Pakistan) [2016] EWCA Civ 705 and the Home Office guidance in respect of EX1.

Decision

6. In light of Mr Melvin’s helpful acceptance that the evidence of the Appellant and the Sponsor is credible, I find that that their evidence is genuine and credible. I have concluded that the appeal should be allowed, for the reasons set out below.

7. I find that the requirements of Appendix FM of the Immigration Rules are met, in that, whilst the Appellant has not shown that there are insurmountable obstacles to his wife relocating to Kenya, EX1 (a) applies in that (i) the applicant has a genuine and subsisting parental relationship with two children who (aa) are under the age of 18 years, (bb) are in the UK and (cc) are British Citizens and ii) it would not be reasonable to expect the children to leave the UK. It is clear from the wording of EX1 that it is drafted in the alternative and that if the insurmountable obstacles test is not met, a case can still quality under the rules under EX1(a) of Appendix FM. It was accepted by the Respondent in her refusal letter that the Appellant meets the suitability and eligibility requirements of the Rules. It was also essentially accepted by Mr Melvin that, given he had no reason to doubt the credibility of the witnesses, the Appellant has a genuine and subsisting relationship with his twin daughters. The remaining question is whether or not it would be reasonable to expect the Appellant’s children to leave the United Kingdom,

8. Section 117B(6) of the Nationality Immigration & Asylum Act 2002, which sets out the Respondent’s position on the public interest in Article 8 cases, provides inter alia:

“(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.”

9. In Treebhawon and Others (NIAA 2002 Part 5A - compelling circumstances test) [2017] UKUT 00013 (IAC) a Presidential panel of the Upper Tribunal held at [21] that where the conditions underlying section 117B(6) are met, the public interests identified in section 117B (1) – (3) do not apply. For the avoidance of doubt, the Appellant speaks English and is financially independent in that the family are maintained through his wife’s employment and income from her businesses. Further, I have had regard to MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705 per Elias LJ who held inter alia as follows:

“46. Moreover, in these cases there must be a very strong expectation that the child's best interests will be to remain in the UK with his parents as part of a family unit, and that must rank as a primary consideration in the proportionality assessment.”

10. Whilst the Appellant’s twin daughters are only 10 months of age, they are British citizens, a status which is accompanied by rights cf. ZH (Tanzania) [2011] HRLR 11, including the right to live within the EU cf. Sanade (2012) UKUT 00048 (IAC). If it is not reasonable for the children to be expected to live outside the EU then it cannot be reasonable to expect them to leave the United Kingdom for Kenya, a country outside the EU, in circumstances where their mother has been lawfully resident in the United Kingdom for more than 13 years and their father, whilst not lawfully resident, has lived outside his country of origin for more than 14 years. Whilst the Appellant’s father is in Kenya, he has re-married and has a new family. The Appellant’s mother died when he was 16 years of age and his wife has no family in Kenya.

11. Therefore, I find that it would not be reasonable for the Appellant’s twin daughters to leave the United Kingdom, with the effect that the appeal falls to be allowed under Appendix FM of the Immigration Rules.

12. In the alternative, I find that there are compelling circumstances justifying consideration of article 8 outside the Immigration Rules, given that the best interests of two British children are in issue. The question is whether in all the circumstances, removal of the Appellant to Kenya would constitute a disproportionate interference with his right to family life. I apply the five part test set out by Lord Bingham in Razgar [2004] UKHL 2007 at [17] viz (1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?

13. I find that the Appellant has established a family life with his wife and twin daughters in the United Kingdom; that his removal would constitute an interference with his right to family life so as to engage Article 8 of ECHR but it would be in accordance with the law. The question is whether his removal would be proportionate.

14. The Appellant has resided in the United Kingdom since September 2002. He undertook a Masters degree in Social Policy, which he completed in 2005 and has overstayed since that time. By that time, he had met his partner and they began cohabiting in January 2005. Ms Karanja has resided lawfully in the United Kingdom since October 2003, initially as a student and then as a Tier 1 Migrant until she was granted ILR in 2003 on the basis of 10 years lawful residence. I find given Ms Karanja’s lengthy lawful residence of in excess of 13 years and the fact she is gainfully employed, although there may not be insurmountable obstacles to her return, it would be unreasonable to expect her to relocate to Kenya.

15. On 6 May 2016, Ms Karanja gave birth to twin girls, who are British citizens by virtue of her settled status. She took maternity leave and returned to full time work shortly before the hearing. I find that the Appellant is the sole carer for his daughters during the week whilst his wife is at work. I have had regard to the Sponsor’s last three wage slips [at 25-27 of the supplementary bundle] all of which relate to her wages during maternity leave and her bank statements, which show variable payments from Berkshire Logs. I find that whilst, if the Appellant were to be returned to Kenya to make an application for entry clearance, it is reasonably likely that his wife could meet the financial requirements of Appendix FM, her income is not such that she could reasonably afford to pay for childcare in order for her to continue to work full time and thus her ability to meet the requirements of the Rules would be jeopardized. I have also had regard to the Supreme Court judgment in Agyarko [2017] UKSC 11 at [51] and the fact that, were the Appellant’s wife to continue working full time and no other issues have been taken by the Respondent in respect of the Appellant’s ability to meet the requirements of Appendix FM of the Rules upon an application for entry clearance, the judgment in Chikwamba [2008] UKHL 40 applies.

16. In light of my findings at [14]-[15 above as well as those in respect of EX1(a) of Appendix FM of the Rules that it would not be reasonable to expect the Appellant’s daughters to leave the United Kingdom, I allow the appeal on the basis that it would be a disproportionate interference with the Appellant’s family life for him to leave the United Kingdom.

17. The issue of wasted costs was raised by Mr Jaisri. I have had regard to the letter from the Appellant’s solicitors to the Presenting Officers Unit dated 7.2.17 at 28 of the supplementary bundle; rule 10(d) of the Tribunal Procedure (Upper Tribunal) Rules 2008, as amended and the Presidential decision in Cancino (costs – First-tier Tribunal – new powers) [2015] UKFTT 00059 (IAC) in particular [27]. I find that this is not the kind of clear case that would merit a wasted costs order. I consider that it was not unreasonable for the Respondent to defend her decision, in light of the history of the case; the fact that it was only possible for the Appellant to succeed following the birth of his daughters, which postdates the Respondent’s decision and given that the letter raising the issue was written less than 14 days prior the hearing date.

18. I do, however, make a fee award given my decision to allow the appeal.

19. The appeal is allowed both under the Immigration Rules (the application having been made on 14.12.14) and on human rights grounds.

Rebecca Chapman

Deputy Upper Tribunal Judge Chapman

23 March 2017