Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19651/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 23 February 2017
On 8 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

shariff eldeen halwany
(anonymity directioN NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr I Ali, Counsel, instructed by Brys Immigration Consultants
For the Respondent: Ms A Alboni, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Obhi (the judge), promulgated on 19 January 2016, in which he dismissed the Appellant’s appeal. That appeal was against the Respondent’s decision of 12 May 2015, refusing the Appellant’s human rights claim.
2. The Appellant is a citizen of the United States, born on 20 April 1981. He has at all material times been married to a British citizen with whom he has three children. They too are British.

The judge’s decision
3. The judge proceeded on the basis that the Appellant made his human rights claim (through an application for further leave to remain) on 9 May 2015. This was after the Appellant’s previous period of leave had expired, but less than twenty-eight days as an overstayer.
4. At paragraph 17 the judge states that there was no dispute as to the facts of the case. The marriage, paternity and the genuineness of the familial relationships were accepted. The Appellant had not lived together with his family until October 2014, when he last entered the United Kingdom.
5. In assessing the Article 8 claim the judge first looks at Appendix FM to the Immigration Rules. At paragraph 18 he concludes that the Appellant could not satisfy the partner route under Appendix FM because he had not made a prior application for entry clearance. In respect of EX.1, it is said that the Appellant could not rely on this provision because he was not the sole carer of the children. Any claim under paragraph 276ADE is rejected in paragraph 19. An assessment of Article 8 outside the context of the Rules is undertaken in paragraphs 20-24. Section 117B of the NIAA 2002 is cited. The judge goes on to consider a number of factors weighing against the Appellant. The appeal is duly dismissed.

The grounds of appeal and grant of permission
6. In essence, the grounds allege that the judge erred in his consideration of the Article 8 claim under Appendix FM and that he failed to attach appropriate weight to the children’s best interests. Permission to appeal was refused by the First-tier Tribunal but granted by Upper Tribunal Judge Rintoul on 11 August 2016. He states that the judge may have erred in concluding that a failure to make an entry clearance application was fatal to any reliance upon Appendix FM. A point on E-LTRP.2.1 and 2.2 of Appendix FM raised in the grounds is mentioned in passing as being a matter for the Upper Tribunal to consider at a hearing is necessary.

The hearing before me
7. At the outset of the hearing there was a discussion on the date on which the Appellant’s application was in fact made. The date of 9 May 2015 had, as mentioned previously, been assumed by the judge. However, the Respondent’s rule 24 response asserted that the application had actually been made in March 2015, at a time when the Appellant still had valid leave to remain. In support of this assertion, Ms Alboni produced a letter from the Respondent to the Appellant, dated 26 March 2015, acknowledging receipt of his application. This appeared to be consistent with the date stamp on the FLR(FP) application form. Mr Ali, having taken instructions on the point, accepted that this earlier date was likely to be correct.
8. In light of the above and on the agreement of the representatives that the application was in fact made in March 2015 and not 9 May 2015, I concluded that the judge had proceeded on a mistaken premise. At the time of his application, the Appellant had had valid leave granted for a period of six months (the leave began on 17 October 2014). Therefore, E-LTRP.2.1(b) applied and the Appellant could not have relied on EX.1 in any event. That the judge came to a similar conclusion for different (and arguably erroneous) reasons is immaterial.
9. In light of this Mr Ali moved on to ground 2 and the issue of the children. He submitted that outside the context of the Rules, the judge should have considered section 117B(6) and the issue of reasonableness. He failed to do so.
10. Ms Alboni accepted that the judge had materially erred in this respect.

Decision on error of law
11. In view of the way in which the focus of this appeal has shifted, there is a clear material error of law in the judge’s decision. Put simply, he failed to address the highly relevant (indeed probably the core) issue in the case, namely whether it was reasonable for the children to leave the United Kingdom. Despite referring to section 117B, the judge’s decision does not reflect any consideration in substance of the reasonableness question under section 117B(6).
12. There is a further, interconnected, error. The judge has failed to undertake any adequate best interests assessment.
13. The judge’s decision is set aside.

Disposal
14. Mr Ali initially suggested that the appeal should be remitted to the First-tier Tribunal for rehearing. Ms Alboni submitted that I should remake the decision on the evidence before me. She stated that the Respondent does not expect the children to leave the United Kingdom; it would be unreasonable for them to do so. However, she submitted that the Appellant could and should return to the United States and make an entry clearance application.
15. Mr Ali confirmed that the Appellant has been living with his family since October 2014. His three daughters are not aged nine, eight and four.

16. I concluded that I should remake the decision myself. The facts are not in dispute and there is no further evidence to be sought.

Remaking the decision
17. There is no dispute about the following core facts in this case:
a) The Appellant’s children are all British and they reside in the United Kingdom;
b) The Appellant has a genuine and subsisting parental relationship with his children
18. Section 117B(6) reads:

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.
19. Paragraph 17-21 of MA (Pakistan) [2016] EWCA Civ 705 makes it clear that section 117B(6) is a “self-contained” provision, satisfaction of which will result in a successful appeal for an appellant on Article 8 grounds.
20. In the case before me, Ms Alboni has expressly conceded that it would be unreasonable to expect the Appellant’s British children to leave the United Kingdom. That concession is, it seems to me, consistent with the Respondent’s own guidance on Appendix FM (Appendix FM, 10 year routes, 1.0b, August 2015, at paragraph 11.2.3). The concession is properly made and I do not go behind it.
21. In light of the concession, the outcome for the Appellant must be that he succeeds. The only issue under section 117B(6) was that is reasonableness, and it has been resolved in the Appellant’s favour by way of the Respondent’s stated position in this appeal. The possibility or otherwise of an entry clearance application from abroad is immaterial.
22. The appeal is allowed on Article 8 grounds.

Anonymity
23. I was not asked to make any direction and there is no other particular reason why I should.

Decision

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside the decision of the First-tier Tribunal.

I re-make the decision by allowing the appeal on human rights grounds (Article 8 ECHR).

Signed Date: 5 March 2017

H B Norton-Taylor
Deputy Judge of the Upper Tribunal

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make a whole fee award of £140.00. The Appellant has succeeded on the basis for which he applied to the Respondent. There has been no change in his circumstances between the application and the appeal before me.

Signed Date: 5 March 2017

Judge H B Norton-Taylor
Deputy Judge of the Upper Tribunal