Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19124/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22nd November 2016
On 23rd November 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR SANTOKH RAM
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr C Avery, Senior Home Office Presenting Officer
For the Respondent: Mr T Bramall (instructed by S & S Immigration Law)

DECISION AND REASONS
1. This is an appeal to the Upper Tribunal by the Secretary of State in relation to a decision of First-tier Tribunal Judge Hollingworth sitting at Nottingham on 18th April 2016.
2. For the purposes of continuity and clarity I will, in this decision, continue to refer to Mr Ram as the Appellant and the Secretary of State as the Respondent.
3. The Appellant is a citizen of India. He had applied for leave to remain in the UK on the basis of his private and family life. His application was refused in a decision dated 11th May 2015. In the refusal the Secretary of State noted that the Appellant had no children and so far as his relationship with his settled partner was concerned found that there were no insurmountable obstacles preventing family life with her continuing in India.
4. The Judge heard evidence from the Appellant and his British wife. The Appellant had come to the UK in 2001 on a false passport. When he married his wife it was only at that stage that he informed her he had no status in the UK. The Appellant's wife has a 12-year-old son from her previous marriage who, under the terms of a Family Court order lives with her former husband but with whom she has staying contact on alternate weekends.
5. After hearing both witnesses and submissions the Judge found that the Appellant and his wife were in a genuine and subsisting relationship and found it in the 12-year-old child's best interest to maintain contact with his mother. On that basis he found there to be insurmountable obstacles to family life continuing in India between the Appellant and his wife and found that they met the requirements of Ex.1 (b) and allowed the appeal.
6. The Secretary of State applied for permission to appeal arguing that the Judge had misapplied the provisions of Ex.1 as the child was not the son of the Appellant but of the sponsor and her former husband and that he lived with the former husband.
7. That ground is misconceived as that is not the basis upon which the Judge allowed the appeal. Reading the Decision and Reasons as a whole it is quite clear that in taking the best interests of the child into account it was in relation to his relationship with his mother if his mother were to relocate to India. The Judge did not allow the appeal on the base of Ex.1 (a) but Ex.1 (b).
8. The grounds also suggest that the Judge erred by deciding for himself where the best interests of the child lay. That is not an error as it is now trite law that the Tribunal, if it has sufficient evidence before it, is able to make that assessment and it is not necessary to remit the matter to the Secretary of State for section 55 to be considered. Furthermore, there were Family Court orders in this case and it has now been made clear by the case of Makhlouf [2016] UK SCE 59 that the Tribunal is entitled to rely on Family Court orders in determining where the best interests of children lie. The Family Court must treat the best interests of the child as the paramount consideration and if it has made an order it is because the terms of the order are in the child's best interests.
9. The grounds further go on to suggest that the Tribunal failed to have regard to the Appellant's immigration status and his method of entry to the UK. However, if the Appellant meets the requirements of the Immigration Rules, which he does in this case, that is irrelevant. He meets the requirements of R-LTR P.1.1 (a), (b) and (d). On the Judge's findings (not challenged by the Secretary of State) the Appellant was entitled to succeed in the appeal and the Decision and Reasons therefore contains no error of law.

Notice of Decision
The Secretary of State's appeal to the Upper Tribunal is dismissed.
No anonymity direction is made.

Signed Date 22nd November 2016

Upper Tribunal Judge Martin

The first-tier Tribunal did not consider it appropriate to make a fee award and I agree with the judges reasoning. I therefore make no fee award either.

Signed Date 22nd November 2016

Upper Tribunal Judge Martin