Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20040/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 March 2017
On 27 March 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

MUHAMMAD RIZWAN SHAUKAT
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

DECISION AND REASONS

1. The appellant, Muhammad Rizwan Shaukat, was born on 19 April 1981 and is a male citizen of Pakistan. The appellant entered the United Kingdom as the partner of a person settled here and applied for further leave to remain on 27 March 2015. By a decision dated 14 May 2015, his application was refused and he appealed to the First-tier Tribunal (Judge Housego) which, in a decision promulgated on 16 August 2016, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. Granting permission, Designated Judge Garratt summarised the grounds as follows:
The grounds argue that the judge’s consideration of human rights issues outside the Rules is flawed. In summary, it is contended that the judge did not give adequate consideration to the impact on family life of a Family Court order granting the appellant contact and directing that his child should not be removed from the United Kingdom. The judge also arguably failed to determine the extent of family life between the appellant and his child, in circumstances where it is not known when the child and mother might go to Pakistan. Further, the judge did not apply the compelling circumstances test in SS (Congo) [2015] EWCA Civ 387.
3. Designated Judge Garratt considered that it was arguable that the judge had inadequately considered the extent of family life between the appellant and his child in respect of whom he has a contact order from the Family Court. At [31], the judge considered the mother’s immigration status to be precarious but did not refer to any evidence to support that conclusion.
4. I find that the appeal should be allowed. I have reached that decision for the following reasons. During the course of the hearing, it became apparent that neither the appellant nor Mr Walker, who appeared for the Secretary of State, was aware of the immigration status of the mother of the child in this case (M) who is now aged 4 years. The appellant is separated from the mother but he has the benefit of a final order made in proceedings under the Children Act 1989 at the East London Family Court and which is dated 23 July 2015. The order provides for the child to live with the mother but spend time with the father away from the mother’s home each Sunday between 2 – 6 p.m. In his decision, Judge Housego wrote at [31] “the child’s mother is not a citizen of the UK but of Pakistan as is the child. There is no information about her immigration status but I take it to be precarious as there was no evidence (or assertion) that it is other than on a Tier 4 basis”. During a brief adjournment, Mr Walker kindly offered to check the current immigration status of the mother. I am well aware that Judge Housego had no evidence on that point. I did, however, consider it helpful to the Tribunal to be given details of her immigration status. Mr Walker told me that the appellant’s former partner made an application for asylum to the Secretary of State in February 2017. She is awaiting an interview.
5. Mr Mustafa, who appears for the appellant, complained that the First-tier Judge had not carried out any proper assessment of the best interests of M as required by Section 55 of the Borders, Citizenship and Immigration Act 2009. Rather, at [40], the judge wrote “all are citizens of Pakistan and on the return of the mother and child to Pakistan the family life of the appellant can resume”. It is not clear to me what the judge means by that last sentence. The appellant is permanently separated from the mother of the child so, if all three were to return to Pakistan, then he would be required to obtain an order for contact in a Pakistan court if he is to enjoy any family life with his child. It is difficult to see how such a scenario might amount to the resumption of family life, as Judge Housego appears to have supposed. Further, whilst the appellant does not enjoy the benefit of Section 117B(6) of the 2002 Act (as amended) because M is not a qualifying child, the judge has not (as Judge Garratt pointed out) “determined the extent of family life between the appellant and his child”. The judge did not make any finding that contact is taking place in accordance with the Family Court order. Simply to assume that all three members of the family will return to Pakistan and enjoy family life there is, in my opinion, an inadequate analysis of the current circumstances of this family. The judge needed to deal in greater detail with the relationship between the appellant and the child and the relevance, as a factor in the Article 8 analysis, of the Family Court order. I consider that, in the light of what I have said above, the judge has erred such that the decision falls to be set aside. The appeal will be re-made in the First-tier Tribunal. By the date of the next First-tier Tribunal hearing, it is likely that a decision will have been taken on the asylum application of M’s mother. In any event, both parties will need to attend before the First-tier Tribunal with up-to-date evidence. In the case of the appellant, he will need to provide evidence to show whether he is complying with the contact order.
Notice of Decision
6. The decision of the First-tier Tribunal promulgated on 16 August 2016 is set aside. None of the findings of fact shall stand. The case is returned to the First-tier Tribunal (not Judge Housego) for that Tribunal to re-make the decision.
7. No anonymity direction is made.

Signed Date 20 March 2017

Upper Tribunal Judge Clive Lane