Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/18824/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 January 2017

On 06 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

SUMAREE NAK-IN
(ANONYMITY DIRECTION NOT made)

Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation

For the Appellant: Mr D. Balroop, Counsel instructed by Arkas Law
For the Respondent: Mr P. Nath, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Thailand born on 1 August 1983 who entered the UK as a student in May 2010. On 23 January 2015 she applied for leave to remain in the UK on the basis of her relationship with her partner and daughter, both of whom are British citizens.

2. On 1 May 2015 the application was refused. She appealed to the First-tier Tribunal ("FtT"), where her appeal was heard by FtT Judge Oxlade. In a decision promulgated on 11 July 2016, the judge dismissed the appeal. The appellant now appeals against that decision.

Decision of the First-tier Tribunal

3. The judge found, firstly, that the appellant did not meet the eligibility requirements of the Immigration Rules. He then considered the appeal outside the Rules under Article 8 ECHR.

4. In assessing whether removal of the appellant from the UK would be proportionate, the judge's starting point was to consider the best interests of her daughter, who was born on 15 December 2014. He made the following findings about her:
a. She is a British citizen;
b. She lives with the appellant and her father, who is a British citizen;
c. She is breast fed, although also eats solid food;
d. The appellant is her primary carer;
e. Her father spends considerable amounts of time with her when not working; and
f. If the appellant were removed to Thailand she would take her daughter with her but that would be a choice as the daughter could remain in the UK with her father, with whom she has a close relationship.

5. The appellant adduced a GP report about her daughter which stated that removing her from either parent would be damaging. The judge gave the report little weight on the basis that there was no explanation for the conclusion.

6. The judge found, at paragraph [44], that if the appellant were to leave the UK "she would choose to take her daughter with her to live in Thailand until she seeks entry clearance" and that whilst in Thailand she and her daughter would be able to live with the appellant's parents or could rent a property. He found that the appellant "could make an out of country application, pending which her daughter could stay with her without significant short or long term implications".

7. The judge then stated:

"The IDI [Immigration Directorate Instructions Family Migration] asks the decision maker to test whether the British child would be "forced" to leave the UK; I find that she would not be forced; it would be the mother's choice, the child could equally remain with her father with whom she is quite used to living and who shares parental responsibility and by his account is 'hands on'. Whist he may wish to continue to work and support the application from abroad, these are choices. I do not find the appellant's removal would force the child to leave the UK."

8. At paragraph [45] the judge concluded his analysis of the child's best interests by stating:
"I do not find that her best interests would not be served by travelling to Thailand with her mother, for a relatively short period, whilst entry clearance is obtained."

9. The judge then referred to Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"), stating:

"Nor is there a breach of Section 117B(6) caused by the appellant's removal, as whilst she has a genuine and subsisting relationship I do not find out [sic] that it would not be reasonable to expect the child to leave the UK with the mother for a relatively short period."

10. The judge highlighted that the appellant's relationship was entered into at a time when her status was precarious. He also found that the appellant and sponsor were aware of the visa limitations and that they had a "game plan" to find a way around the Immigration Rules.

11. The judge concluded that:

"a temporary interference with the appellant's, sponsor's and child's family and private life is proportionate to the need to maintain effective immigration control and that the appellant's removal would be neither a breach of the IDI, the best interests of the child, nor section 117B of the 2002 Act as to unreasonableness".

Grounds of appeal and submissions

12. Mr Balroop, in both his submissions and the grounds of appeal, argued that the judge made a material error of law in his approach to the question of whether it would be reasonable to expect the appellant's daughter to leave the UK. The judge found that it would be reasonable for her to leave the UK for a "short period". Relying on the Immigration Directorate Instructions Family Migration: Appendix FM Section 1.0b Family Life and Private Life: 10 year routes dated August 2015 ("the IDI") Mr Balroop argued that the respondents' policy as well as the case law does not draw a distinction between a British child leaving the UK for a short period or a long period and in either case it would not be reasonable to expect a child who is a British citizen to leave the UK.

13. The judge found that it would be the appellant's "choice" to take her daughter with her to Thailand. Mr Balroop argued that this misconstrues the reality where in fact there would not be a choice. The child would need to accompany her mother for several reasons including that the appellant is the primary carer, she breast feeds her daughter, and if the daughter were left with her father he would not be able to work as many hours with the consequence that he would not be able to meet the financial requirements to enable the appellant to return to the UK as his partner.

14. Mr Nath's response was that under Section 117B(6) of the 2002 Act having a child is not a trump card. The judge had looked at the relevant factors to determine what would be reasonable and reached a considered conclusion based on the particular factual matrix. In these circumstances, there was no basis to find an error of law.
Consideration

15. Section 117B(6) of the 2002 Act provides that:

(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.

16. There is no dispute in this appeal as to whether the appellant has a genuine and subsisting relationship with her daughter. Nor is it in question that the daughter, who is a British citizen, falls within the definition of a "qualifying child". The only issue under Section 117(B)(6), therefore, is the reasonableness of expecting the appellant's daughter leave the UK with her mother.

17. Factors relevant to the question of whether it would be reasonable for the appellant's daughter to leave the UK are wide ranging and encompass all aspects of the public interest pertaining to the appellant and her family. It is not solely a matter of the child's interests. See MA (Pakistan) & Ors [2016] EWCA Civ 705.

18. In the context of a British Child a highly relevant consideration is the respondent's own policy, as set out in the IDI.

19. The IDI states at section 11.2.3:

"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.
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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.

In such cases it will usually be appropriate to grant leave to the parent or primary carer, to enable them to remain in the UK with the child, provided that there is satisfactory evidence of a genuine and subsisting parental relationship.

It may, however, be appropriate to refuse to grant leave where the conduct of the 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.

The circumstances envisaged could cover amongst others:
- criminality falling below the thresholds set out in paragraph 398 of the Immigration Rules;
- a very poor immigration history, such as where the person has repeatedly and deliberately breached the Immigration Rules."

20. In my view, it is clear that it would be inconsistent with the IDI to remove the appellant from the UK. Firstly, removing her would mean that her daughter would also have to leave the UK. Even though the appellant and her partner have a choice about where the daughter lives (in that they could 'choose' for her to stay with her father in the UK) the reality, as accepted by the judge, is that the child would accompany her mother to Thailand. Accordingly, removing the appellant means that a British child would be expected to leave the EU.

21. Secondly, the IDI makes clear that if a child could remain in the UK with another parent, it is appropriate to refuse to grant leave only where "the conduct of the parent or primary carer gives rise to considerations of such weight as to justify separation". Examples of such conduct given in the IDI are criminality and "a very poor immigration history". In this case, there is no indication of either criminality or poor immigration history on the part of the appellant. On the contrary, the appellant has a good immigration history, having never been in the UK without leave to remain.

22. The judge found that removal of the appellant from the UK for a short period would not be contrary to the IDI. However, the IDI does not distinguish between long and short periods and a plain reading of the IDI leads inextricably to the conclusion that removing the appellant would be contrary to the guidance it contains concerning parents of British citizen children. The misinterpretation of the IDI by the FtT is a material error of law such that the decision will need to be remade.

23. In remaking the decision I have conducted a balancing exercise to assess the proportionality of the appellant's removal, having regard to the factors enumerated in Part 5A of the 2002 Act.

24. Weighing against the appellant is that (a) she does not meet the requirements of the Immigration Rules and the maintenance of immigration control is an important public interest; and (b) her private and family life was formed at a time when her immigration status was precarious.

25. However, on the other side of the scale is that:
a. It is in the best interests of the appellant's daughter to remain in the UK. At the hearing to remake the decision, the appellant submitted further evidence (without objection from Mr Nath) in the form of a letter dated 12 January 2017 from her daughter's GP. The letter described the daughter as having language delay and possible development problems/learning difficulties with possible autistic spectrum disorder. I accept, on the balance of probabilities, that the GP's description of his patient is accurate. Given the daughter's potential disabilities, I consider it to be firmly in her best interests to avoid the substantial disruption to her life that would result from either moving to Thailand or being separated from her mother.
b. The respondent's own policy under the IDI is to not remove people in the appellant's circumstances (see paragraphs [20] and [21] above).
c. The appellant's daughter is a British citizen who, on the balance of probabilities, would have to leave the UK if the appellant were removed.
d. The appellant has a good immigration history.
e. The appellant speaks English and has not been a financial burden on the state.

26. In the balancing exercise I attach particular weight to the fact that the consequence of removing the appellant is that very young British child who appears to have developmental problems will either be removed from her country or separated from her mother and that the respondent's own policy as expressed in the IDI does not favour removal of the appellant. In these circumstances, the balancing exercise yields the clear conclusion that the appellant's private and family life rights under Article 8 ECHR must prevail over the public interest.

Decision
A. The decision of the First-tier Tribunal contains a material error of law and is set aside.
B. I remake the decision by allowing the appellant's appeal.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 3 February 2017