Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20820/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 8th February 2017
On 9th February 2017

Before

UPPER TRIBUNAL JUDGE COKER

Between

FS
(anonymity order made)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Ali, instructed by Zakk Associates and Solicitors
For the Respondent: Mr P Singh, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant/witnesses in this determination identified as FS or AY. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings
1. Although not specifically pleaded in the grounds seeking permission to appeal, FS was granted permission to appeal on the grounds that it was arguable that the First-tier Tribunal judge failed to take into account the best interest of the children when finding that there were no significant difficulties making it unreasonable for the SA (FS' partner) to return to Pakistan with him if they wished to pursue family life together. I suggested, and it was agreed, that I could imply such a challenge into the grounds relied upon. The First-tier Tribunal judge dismissed the appeal on asylum and humanitarian grounds; there was no appeal against that decision. The only issue in this appeal was whether the First-tier Tribunal gave adequate consideration to the evidence before him, placing adequate weight on the evidence and whether he reached lawful conclusions as to the best interests of the children.
2. The First-tier Tribunal judge summarised the evidence before him, both oral and documentary. FS has a number of convictions. He had applied for asylum in 2002, such claim being refused and his appeal dismissed in March 2003. He was found to be a totally incredible witness who had fabricated his whole claim. He did not leave the UK. On 16th March 2015 he made an application for leave to remain on the basis that he had a subsisting and genuine relationship with a British Citizen (SA)to whom he was married and that they had three children, all of whom are British Citizens. SA also made an asylum claim - not linked with his claim. It seems that she was not recognised as a refugee but she was eventually granted indefinite leave to remain in 2008 along with two children. A third child was born in 2009 and was a British Citizen at birth. The older two children are now and were at the date of application and decision British citizens.
3. The judge set out the evidence of the appellant and his wife. There were and had been, significant assertions made in their evidence, many of which did not reflect well on the couple. For example that they had been advised by their former solicitors not to claim asylum together and not to refer to each other in their respective claims; that AS was married to a man who lived in Pakistan and he was the father of the older two children; that the name of the father on the birth certificate of the two older children was either her name or a made up name or her parents gave them that name; that social services became involved with the result that the children became the subject of care orders because their neighbours were not good and would call the police when they had guests and complained about them; that in 2013 FS had informed the respondent that SA's husband was in Pakistan and he and SA had been living together for some two years. There were no copy documents obtained in connection with the care proceedings under the Family Protocol but it was accepted that social services became involved with the family in about 2011 and the children became subject to care orders on 1st August 2013. The care plan approved by the Court was for supervised contact to take place 6 times a year and that the children could speak to their parents every two weeks and on their birthdays, if they wished. The children's' address and the names of the foster carers was not disclosed to FS and/or SA.
4. Between July 2013 and March 2014 SA removed the children from the UK without the consent of the Court, the removal being financed by her parents.
5. There was no challenge to the record of evidence made by the First-tier Tribunal judge as it appeared in the decision the subject of appeal before me. The significant challenge was to the weight placed by the judge on elements of the evidence and thus the impact of this upon the decision to dismiss the appeal.
6. The judge received a letter written by the oldest child (date of birth March 1999). He placed very little weight upon the letter because he had no evidence how it had come to be written and there was no evidence whether social services were aware it had been written. The care order did not provide for letters or cards but for telephone contact and 6 supervised visits per year. Furthermore, the letter did not refer to how often the child saw his father, that he was living with foster carers and was not living with his mother and father. Ms Ali submitted that greater weight should have been placed upon the letter because it was known the child was the subject of a care order and it showed that the child would miss his father if his father were to be removed from the UK.
7. It was submitted that the judge failed to give due consideration to the explanation provided by the appellant and his wife as to why it had been said that the appellant was not the father of the older two children and that their mother's husband was in Pakistan.
8. It was submitted in the grounds and by Ms Ali that insufficient weight had been placed by the judge on the explanation given by FS and SA as to why they had said the two older children were not their children.
9. It was submitted that the finding by the judge that there were no very significant obstacles in establishing private and family life in Pakistan was in error because the judge had clearly ignored the appellant's claim that he and his wife would lose direct contact with their children if they returned to Pakistan.
10. It was submitted that the judge failed to give due weight to the efforts made by the appellant to gain custody of his children and failed to give significant weight to the fact that his British wife and his three British children were in the UK.
11. The weight to be given by a judge to elements of evidence and facts are matters for the judge. I asked Ms Ali to direct me to evidence that the children had in fact been visited by one or other or both of their parents in accordance with the Care Plan; I asked her to direct me to evidence that identified the role that one or either of the parents played in the upbringing of the children; I asked Ms Ali to direct me to evidence that it is in the best interests of the children that their father remains in the UK. Ms Ali was unable to identify any evidence of actual visits by one or other or both of the parents. She relied upon the fact that the careplan stipulated supervised visits. She relied upon a letter from social services dated 15 June 2016 which refers to the care plan for supervised contact and that the next arranged contact will take place during the summer holidays. She acknowledged that the letter from social services did not confirm that contact visits had in fact taken place or indeed that telephone calls took place on a two weekly basis.
12. Ms Ali relied on the witness statements of FS and SA and in particular the assertions that they have a genuine and subsisting parental relationship with their children. She was unable to direct me to anything in the papers that had been before the First-tier Tribunal judge that provided any information as to the length of any contact visits that had taken place, when they had taken place, who had been present, what had been talked about or how either of the parents exercised any role whatsoever in the upbringing of their children. Although the grounds relied upon refer to an asserted failure by the judge of failing to give weight to the efforts made by the appellant to gain custody his children there was no evidence whatsoever that any attempt has been made to vary the care order or to seek an amendment to the care plan. There was no evidence that either the appellant or his wife has made an application to the court for increased contact or indeed to find out where the children were living.
13. The weight placed by the judge upon the evidence that was before him was plainly a matter for him. He considered that evidence in the context of the findings by the judge in the appellant's asylum appeal and in the context of the couples admitted lies and the attempt to place the blame for those lies upon solicitors who they failed to identify. Assertions by the appellant's representatives that the children would suffer from the departure of their father, unsubstantiated by any documentary evidence worthy of any significant weight, despite the fact that social services and foster carers and presumably schools have been involved with these children for a number of years does not render the findings of the judge in any way unsustainable.
14. The decision the subject of the appeal before the First-tier Tribunal makes plain, as do the immigration rules that the appellant had to provide evidence that he was taking and intended to continue to take an active role in the child's upbringing. Despite this very clear reference in the decision letter the appellant failed to produce any such evidence to the hearing.
15. There was no evidence before the First-tier Tribunal as to enquiries made by the appellant to social services whether the children would be able to visit him in Pakistan or, if his wife travelled to Pakistan with him, whether there would be any financial assistance available to enable supervised visits in the UK to take place. There was no evidence from either the appellant's family or his wife's family as to any financial input they would or could make to facilitate visits. This is of potential importance given the financial assistance they had, given to SA previously.
16. Insofar as the assertion that the judge failed to give adequate consideration or any consideration to the best interests of the children this is simply incorrect. The judge makes the following findings:
68. I do not have the benefit of any evidence from social services, the foster carer or from the schools attended by the children of SA are to give guidance as to what is in their best interests. I have no report to show that ? the sessions are considered to be beneficial for the children and remain in their best interests ? there remains concern that the parents will take the children out of the country without the knowledge of children's services so that it is plainly considered to be in the best interests of the children to remain in the United Kingdom and subject to care orders?.
?
70. ? There is no evidence that the children are likely to be returned the care of the appellant or [SA] in the near or foreseeable future. Is
?
79. there are no significant difficulties making it unreasonable for [SA] to return with the appellant to Pakistan if they wish to pursue family life together.
?
81. ? the appellant has not discharged the burden of proof I'm shown that there would be insurmountable obstacles or very significant difficulties on return, all that return is unduly harsh for an unreasonable?
?
83. [they have supervised access and telephone contact] which is not sufficient to show that the appellant or [his wife] is taking, and intends to continue to take, an active role in the child's upbringing
?
89. ? [SA] and appellant can return to Pakistan separately if [SA] chooses not to travel, although it is reasonable for her to do so, altogether and therefore the appellants removal does not engage article 8 (family life). [SA] has not established family life with her children. They have been removed from her care and the evidence does not show parental responsibility. It follows that I find that the appellants removal does not engage article 8 on the basis of interference with family life that reaches the threshold of seriousness required before article 8 is engaged.
?
92. I find that the rights of the children have been reflected in the care orders and [SA] has provided evidence including evidence that she can return with the appellant to Pakistan ?
93. I have taken full account of the fact that the interests of the children are a paramount consideration. I find that there is insufficient evidence to show that the removal of the appellant will adversely affect their welfare or well-being ?
94. ? It is in the best interests of the children to remain in foster care in the United Kingdom and/or [SA] who are considered by social services to represent a risk to the children including a risk to their continued residence in the UK, so that unsupervised visits are not permitted.
17. Although the First-tier Tribunal judge found that the interests of the children are a paramount consideration and this is incorrect, this in fact could assist the appellant given that the judge will have placed more emphasis on the interests of the children than he was required to. The judge found that the level of engagement with the children was insufficient to meet the very low threshold to engage Article 8. He refers to the evidence not showing parental responsibility. The judge is, when the decision is read as a whole, clearly referring to the social and moral and emotional responsibility taken by these parents to their children rather than the legal concept of Parental Responsibility. In any event there is no evidence before the First-tier Tribunal that the appellant and his wife have attempted to exercise their legal Parental Responsibility for these children despite their assertion that they wish to be reunited as a family. In any event the judge went on to consider the relationship between the appellant and his children in considering the proportionality of his removal. It is to be remembered that his wife removed the children from the UK in July 2013 at which point, on some of his evidence, he had only been living with her for two years. Since July 2013 he has not lived with the children, he did not see them until March 2014 at most and since March 2014, on the basis of the evidence before the First-tier Tribunal judge it is doubtful that he has seen them since then in any event.
18. In conclusion, the grounds relied upon in this appeal including the implied ground that the judge failed to have adequate regard to the best interests of the children, are misconceived. The judge considered the evidence before him, attached appropriate weight to the elements of that evidence, and reached conclusions that were plainly open to him. If the appellant's wife chooses to leave the UK to live in Pakistan with the appellant that is a matter for her and a decision that she will take, taking account of the children. Her evidence was that she would travel to Pakistan. FS has never been lawfully in the UK and has committed crimes such that his continued presence is not conducive to the public good.
19. Whilst the removal of the appellant will disrupt the visits, if they take place at all, the judge was plainly aware of this. He reached findings, that the appellant's removal was not disproportionate, that were clearly sustainable given the level, extent and nature of the relationship the appellant has with the children, as evidenced before the judge.

Conclusions:
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside the decision.
The decision of the First-tier Tribunal judge stands.

Anonymity
The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008).

Date 9th February 2017

Upper Tribunal Judge Coker