Tribunal decisions

The decision

IAC-AH-LEM-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21220/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower Birmingham
Decision & Reasons Promulgated
On 27th January 2017
On 8th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

JRg
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K Sidhu of Bassi Solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction and Background
1. The Appellant appeals against a decision of Judge Somal of the First-tier Tribunal (the FTT) promulgated on 23rd November 2015.
2. The Appellant is a female Jamaican citizen born 14th October 1957. She entered the UK on 30th November 2000 as a visitor and subsequently overstayed. On 22nd April 2015 the Appellant applied for leave to remain on the basis of her private and family life.
3. This application was refused on 27th April 2015 and the Appellant subsequently appealed to the FTT pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). The appeal before the FTT was put on the basis that the Appellant could not satisfy any of the provisions of Appendix FM either as a partner or as a parent, but her appeal should be allowed in relation to her private life pursuant to paragraph 276ADE(1)(vi) and/or Article 8 of the 1950 European Convention on Human Rights outside the Immigration Rules, taking into account that the Appellant is in a relationship with a British citizen Tennyson Walker to whom I shall refer as the Appellant's partner. He has a 10-year-old daughter from his previous marriage.
4. The Appellant had married a British citizen in 2007 and explained that he had deserted her and she did not know his whereabouts.
5. The FTT found that the Appellant's relationship with her partner was not "the close and devoted relationship that has been made out." The FTT found that the Appellant had not proved that there would be very significant obstacles to her integration to Jamaica.
6. Article 8 outside the Immigration Rules was considered. The FTT considered the Appellant's relationship with her partner, and also considered the best interests of the partner's daughter. The FTT noted that any private and family life established by the Appellant was established when she knew that she did not have leave to remain in the UK.
7. The FTT dismissed the appeal.
8. The Appellant applied for permission to appeal to the Upper Tribunal contending the FTT had erred in law and permission was initially refused by FTT Judge Baker who found no arguable error of law disclosed in the grounds.
9. The application was renewed and permission to appeal on one ground was granted by Upper Tribunal Judge O'Connor. He found it arguable that the FTT erred in failing to address section 117B(6) of the 2002 Act as evidence had been given to the FTT that the Appellant and her partner's daughter enjoyed a very close relationship, and the daughter is a British citizen. The Appellant claimed to play an active parental role in her partner's daughter's life. The FTT had made no specific finding on this issue.
10. Following the grant of permission the Respondent lodged a response pursuant to rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 contending that the FTT had not erred in law and the ground of appeal was merely a disagreement with the FTT's decision. The Appellant's representatives lodged a response to the rule 24 reply making reference to R v SSHD IJR [2016] UKUT 00031 (IAC) which gave guidance on the meaning of "parental relationship."
11. Directions were issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FTT decision contained an error of law such that it should be set aside.
The Appellant's Oral Submissions
12. In summary Ms Sidhu pointed out that the FTT had in paragraph 6 had when setting out the Appellant's evidence made reference to the Appellant's claim to have a very close relationship with her partner's daughter, and playing an active parental role in her life. In paragraph 8 the Appellant was recorded as stating that she enjoyed a good relationship with her partner's daughter, who she regarded as the daughter she had never had, and that she intended to play an active part in her life.
13. it was submitted that the FTT erred in paragraph 18 by failing to give reasons for finding the relationship between the Appellant and her partner was not as close as had been made out, and the FTT had erred by failing to make a finding as to whether the Appellant was in a parental relationship with her partner's daughter. If the FTT had considered this, and made a finding that a parental relationship existed, then the FTT must have gone on to consider section 117B(6) of the 2002 Act.
The Respondent's Submissions
14. Mr Mills commented that it was unfortunate that the FTT had not made a specific finding on parental relationship, but it was clear from reading the decision, that the FTT had concluded that such a relationship did not exist between the Appellant and her partner's daughter.
15. Mr Mills pointed out that the Appellant and her partner did not cohabit. The FTT was entitled to find their relationship was not as close as they had made out, as both had given conflicting evidence about the progress or lack of progress of the Appellant's divorce.
16. Mr Mills submitted that the Appellant could not be regarded as a step-parent as she was not in a relationship akin to marriage with her partner.
17. The FTT had made clear findings in paragraph 24 as to the relationship between the Appellant's partner's daughter and her biological mother. I was also asked to note the absence of any evidence from the child to the FTT.
18. Mr Mills submitted that the FTT had concluded that no parental relationship existed and therefore did not need to consider section 117B(6) and had not materially erred in law.
The Appellant's Response
19. Ms Sidhu argued that the FTT had accepted that the Appellant and her partner were in a relationship, and the error was in not making a finding as to parental relationship, and if the FTT had any concerns about the lack of evidence from the child, these concerns should have been put to the Appellant.
20. At the conclusion of oral submissions I reserved my decision.
My Conclusions and Reasons
21. I find no material error of law in the FTT decision for the following reasons.
22. It is common ground that the FTT did not consider section 117B(6) but this would only be necessary if the FTT had considered that the Appellant had a genuine and subsisting parental relationship with her partner's child. Although there is no specific finding on this point, I am satisfied that the FTT considered this issue, and concluded that there was no such relationship. For ease of reference I set out the head note to R v SSHD;
1. It is not necessary for an individual to have "parental responsibility" in law for there to exist a parental relationship.
2. Whether a person who is not a biological parent is in a "parental relationship" with a child for the purposes of section 117B(6) of the Nationality, Immigration and Asylum Act 2002 depends on the individual circumstances and whether the role that individual plays establishes he or she has "stepped into the shoes" of a parent.
3. Applying that approach, apart from the situation of split families where relationships between parents have broken down and an actual or de facto step-parent exists, it will be unusual, but not impossible, for more than two individuals to have a "parental relationship" with a child. However, the relationships between a child and professional or voluntary carers or family friends are not "parental relationships".
23. The FTT made a clear finding in paragraph 24 about the relationship that the Appellant's partner's daughter enjoyed with her biological mother stating;
"She enjoys a full and loving relationship with her father and mother and spends the vast majority of her time with her mother and weekends with her father."
24. In the same paragraph the FTT found;
"The Appellant spends some time with R but there is little before me to shed light on the nature and extent of the relationship from R or her mother."
The FTT described R (the daughter of the Appellant's partner) as having an enduring relationship with her own mother.
25. I do not find that it could be said that the Appellant has "stepped into the shoes" of a parent in this case. The Appellant could not be regarded as a step-parent. She is not divorced from her husband. She does not live with her partner, and therefore is not in a relationship akin to marriage. The FTT was entitled to find that her claimed relationship with her partner was not as close as made out, noting the conflicting evidence that the couple had given regarding the Appellant's divorce.
26. The FTT was entitled to note at paragraph 24 the lack of any evidence regarding the relationship between R and the Appellant, from either R or her biological mother.
27. In conclusion, I am satisfied that the FTT did consider the nature of the relationship between the Appellant and R, and concluded that it was not a "parental relationship" and gave adequate reasons for reaching this conclusion.
Notice of Decision

The making of the decision of the FTT did not involve the making of a material error on a point of law. I do not set aside the decision and the appeal is dismissed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings. This order is made to protect the identity of the child referred to in this decision.

Signed Date 3rd February 2017

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The appeal is dismissed. There is no fee award.

Signed Date 3rd February 2017

Deputy Upper Tribunal Judge M A Hall