Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21552/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 January 2017
On 17 March 2017

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

JAA
(ANONYMITY DIRECTION made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr D Barloop, Counsel instructed by Greenland Lawyers
For the Respondent: Ms A Fijiwala, Senior Home Office Presenting Officer
DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 I make an order prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the respondent. Breach of this order can be punished as a contempt of court. I make this order because the appeal requires consideration of the rights of children who might be harmed by reason of details of their private lives being in the public domain.
2. The appellant is a national of Nigeria who was born in 1966. He appealed unsuccessfully to the First-tier Tribunal a decision of the respondent on 22 May 2015 refusing him further leave to remain. The First-tier Tribunal dismissed the appeal but permission to appeal was given because it was considered arguable that the judge had erred by making irrational findings about the nature of the relationship between the appellant and his British citizen children and or had erred in the application of Section 117B(6) of the Nationality, Immigration and Asylum Act 2002.
3. I begin by considering the reasons for the Secretary of State’s decision dated 27 May 2015.
4. There it is noted that the appellant had no valid leave to enter or remain in the United Kingdom and an application to remain on human rights grounds was refused on 6 October 2011. He applied again on 20 March 2015 for leave to remain relying particularly on Article 8 of the European Convention on Human Rights.
5. It was never the appellant’s case that he had a “partner” within the meaning of the Immigration Rules and the respondent, correctly if somewhat unnecessarily, refused the application on partnership grounds.
6. The respondent considered in more detail the possibility of the appellant satisfying the so called “parent route” under Appendix FM. The respondent found that the appellant was not “suitable” for leave to remain because he was not within the provisions of paragraph S-LTR.1.7 and that he had failed without reasonable excuse to provide “essential documents”.
7. Nevertheless the respondent went on to consider if the appellant satisfied the requirements of E-LTRPT.2.2-.4 and E-LTRPT.3.1, the so called “eligibility” requirements. The respondent decided that the appellant had not shown himself eligible because the evidence did not satisfy the respondent that the appellant was “taking, and intended to continue to take, an active role” in the upbringing of the children. It was never the appellant’s case that he had sole responsibility for the children or that they normally lived with him but he did contend that he had “direct access” to the children as agreed with the children’s mother.
8. I do not think it was ever the appellant’s case that he had lived in the United Kingdom for long enough to be entitled to remain for that reason or that there were exceptional circumstances that would justify a decision when the appellant did not appear to comply with the Rules.
9. When the case came before the First-tier Tribunal the judge noted difficulties in the appellant’s case. She noted that there was little independent evidence confirming his involvement in the children’s upbringing. There was a letter from “Michael Rene Immigration Services” asserting that the appellant sees the children regularly and occasionally collects them from school and attends parents’ meetings. This did not entirely chime with a letter from the appellant’s former partner dated 13 March 2015 which asserted that the appellant visited the children regularly and that they were “both responsible for the children” and that he “occasionally dropped off or picked up the children at school and attended parents’ meetings. The letter also said that the appellant collected the children at weekends. There was a supporting letter from the head teacher of the children’s school which said that the appellant “has also been known to collect the children on occasion from school at the end of the day”.
10. The children are both female. The eldest, who I identify as ATA, was born in January 2006 and so is about 11 years old and the younger one, who I identify as OAD, was born in July 2009 and so is now about 7½ years old. The judge found the supporting evidence from the school to be “clearly inconsistent” with the appellant’s own evidence and the evidence of the partner about the agreed involvement. It was the appellant’s oral evidence that he had “never missed a parents’ meeting”. That claim was not supported by the school. By the time the case came before a First-tier Tribunal Judge the appellant’s partner said that he no longer accommodated them at every weekend because it was “too busy for them”. The letter had referred to them staying with him at some weekends and the judge found this was inconsistent with her oral evidence. I regard this as inconsistent in the sense that different arrangement were said to exist it different times rather than in the sense that the versions were necessarily incompatible with the other.
11. The partner appellant’s, Ms B, said that she travelled regularly to Nigeria about twice a year and that the girls stayed with their aunt or their father when she was away.
12. The judge noted that there were two letters apparently on the headed paper from the medical practice identified the relevant medical practice and these letters referred to the appellant accompanying the girls to “numerous appointments” at the surgery. The letters were presented as original but the judge found them to be clearly photocopies and they were not signed by the medical practitioner but under the marking “PP”. The judge found it significant that these were not produced in the bundle but produced at the hearing and the judge found that she could not attach any weight to them.
13. The judge found that the evidence supported no more than there being “occasional contact” with the children.
14. The judge was not impressed with the appellant as a witness. She said that much of his evidence was “characterised by evasiveness” but she was satisfied that the appellant had been working with a false identity as a taxi driver. He had pleaded guilty to the relevant offence whilst awaiting sentence. At paragraph 25 of her decision the judge said:
“I go on to consider the appellant’s case by reference to Article 8 of the 1950 Convention. It is not disputed that the appellant is the father of the two girls who are British nationals and, as their biological father, he enjoys a family life with them for the purposes of Article 8 although the evidence shows that, in reality, his contact with them is no more than occasional. He has, of course, also established a private life whilst in the United Kingdom although I had noted that I have heard no evidence from any friends or from any community organisations, and as appears from paragraph 24 above, the appellant has been using a false identity to work illegally.”
15. The judge found that there was “no question of the children being required to move to Nigeria” and also found there was nothing to prevent them accompanying their mother to Nigeria on her regular visits in order to see their father if that is how they chose to organise their affairs. The judge reminded herself that Section 117B(5) of the 2002 Act provides that “little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious” and went on to dismiss the appeal.
16. The grounds very properly volunteer the information that the appellant had in fact been sent to prison for six months as a consequence of his unlawful working.
17. The grounds argue that the judge’s finding, which is criticised for being irrational, that he is the biological father of the children and enjoys a family life with them for the purposes of Article 8 should have led to a clear finding there was “a genuine and subsisting parent relationship” with the British children. This should have been considered with the requirements of Section 117B(6) of the 2002 Act.
18. The grounds then went on to criticise the findings of fact. There was said to be “no rational basis” for finding the letter from the school referring to his occasionally collecting one of the children to be inconsistent with the appellant’s evidence that he picked up the children from school once or twice a week.
19. Similarly it was irrational, it was said, to find the appellant’s claim that he had “never missed a parents’ evening” undermined by a letter from the school that made no reference to his attending parents’ evenings.
20. The grounds also complain that the judge should not have found the appellant’s partner’s evidence that it was “too busy for them now to stay there” inconsistent in a way that revealed dishonesty with other evidence that they had stayed there some weekends.
21. I consider the crucial findings of fact in the light of the conditions made to me.
22. I see no basis for criticising the decision of the First-tier Tribunal Judge to attach no weight to the letters purportedly from the medical practitioners. I am not concerned that the letters were marked “PP” rather than signed by a medical practitioner. Indeed being signed “PP” is precisely what I would expect from letters from medical practitioners that would not, to the practitioners, seem to be particularly important. However the judge also gave them no weight because they were photocopies. I do not see how it can be thought objectionable in itself for photocopies to be provided. Much depends on the quality of a copy. These copies are not particularly high quality because there is “dotting” in the left hand margin. Furthermore the crucial part of the letter, namely the letterhead, is clearly shaded behind. It could easily be that the letterhead was copied onto another page. Most importantly, and clearly of considerable importance to the First-tier Tribunal Judge, is the fact that these letters were not disclosed when they should have been but were produced on the morning of the hearing. The point of advanced disclosure is to give the Secretary of State, or whichever party is considering documents, an opportunity to give them proper consideration. Had these been letters served in time the Secretary of State could have been expected to have contacted the surgery and confirmed that the documents did indeed emanate from the surgery and were in fact what they purported to be. If they had been produced in time and the Secretary of State did not make those enquiries it might have been very hard to criticise the documents. However the converse applies. By being served late the Secretary of State was deprived of the opportunity of making those enquiries. It is clearly part of the judge’s reasons for attaching little or no weight to the letters that they were produced late. Far from being a matter of criticism, in my judgment, it is a decision that that the judge was absolutely entitled to take and quite possibly one that the judge should have taken given the importance of the documents, the visible shading and the failure to comply with directions.
23. Neither do I see any basis for criticising the finding that there is an inconsistency between oral evidence that the children are picked up once or twice a week and the letter from the school that the appellant “occasionally” collects one of the children from school. I accept that as a matter of extremely literal construction these can be reconciled but it makes no sense to me that a school would refer to one child being collected occasionally if it was the routine for the children to be picked up once or twice a week. Schools can be expected to know how children are taken to and from school. If in fact the appellant picked up the children once or twice a week the school could be expected to say so. If that is what is happening and the school does not know that might be a cause for some sharp enquiries by the appellant’s representatives to ask the school is not better informed. There is no evidence that that has happened here. The judge was clearly entitled to be unimpressed by this inconsistency which, is, I find an apt description of the different strands of evidence.
24. The judge was not right to regard it as an “inconsistency” when the evidence from the appellant and his partner was that the appellant attended parents’ evenings and there was no confirmation from the school. The versions of events are surprisingly different but not inconsistent and the strands of evidence should not have been described in that way.
25. I also find merit in the criticism that a change in circumstances should not be regarded as an inconsistency but I indicated when I outlined the evidence that it is not at all clear to me that the judge decided that she was being given different inconsistent versions of events. Rather she had simply noted that there had been a change of circumstances. She described the evidence as inconsistent because it was describing different things. It might have been better to have used the word “different” but I do not regard this finding as key to the findings of dishonesty.
26. Nevertheless I am satisfied that there has been an error here. The judge has not clearly addressed her mind to Section 117B(6) of the 2002 Act.
27. I am satisfied that there is a genuine and subsisting parental relationship with two qualifying children. This appears to be resisted by the Secretary of State but I do not understand the objection. The terms “genuine and subsisting parental relationship” are not defined in the Act and so must be given their ordinary meaning. Unless there has been a complete breakdown in relationships or the relationship never began it seems to me that a biological parent would always have a parental relationship with the child. Similarly a non-biological parent who has something like a parental role will have a parental relationship even if the role has changed throughout the child’s life or has significantly diminished. In the absence of guidance from higher courts it seems to me that the requirement for a “parental relationship” is likely to exist when there is a biological relationship or some credible evidence of some parental like involvement.
28. Such a definition does not necessarily assist an applicant. It is not sufficient that there is a parental relationship but it must be “genuine and subsisting”. It may be that this phrase is deliberately vague to allow for the many and various ways in which people express family life. Here there is no independent evidence of anything more than occasional contact. I do not accept that the appellant sees his children “once or twice a week as claimed in the letter from the child AMA who referred to the appellant visiting “once or twice a week”. There may have been occasions when he visited her frequently and that may be what she had in mind but in the absence of other evidence from an independent source I cannot properly attach much weight to her claim expressed in a letter from a child.
29. I have considered all of the evidence. I am satisfied that the appellant does see his children quite frequently but I am not satisfied that he is involved in their education or in decisions about their education. He may have attended some parents’ meetings but I find it surprising that there is not confirmation of this from the school if it is in fact the case and I do not accept the evidence in the papers that he was always present.
30. I do not accept the evidence that he takes the children to the medical practitioners. The evidence supporting that has been discounted by the First-tier Tribunal Judge, I find for entirely sensible reasons.
31. In short while I am satisfied there is a genuine and subsisting parental relationship with two qualifying children it is not the relationship of a father in a nuclear family or the relationship of a father who is particularly involved in their lives. They see each other. They know their father. They may well have fond feelings for him but in truth there is little evidence that he does very much for them. This is the nature of the “genuine and subsisting parental relationship” that exists here.
32. For the avoidance of doubt it is accepted that it would not be reasonable to expect the British children to leave the United Kingdom. I consider Section 117B(6). It applies because for the reasons given above sub-sections (a) and (b) apply and I note therefore that “the public interest does not require the person’s removal”. I do not take this to mean there is no public interest in removal. If that is what Parliament had intended then Parliament could have said in terms that a parent will not be removed when this applies. If that is what Parliament meant then it is an appeal that ought to be allowed.
33. I interpret it as meaning that where there is a genuine and subsisting parental relationship the Tribunal carrying out the Article 8 balancing exercise in accordance with the statute, has to consider that relationship and ask itself if the person should be removed even though it is not “required” in the strict and inflexible sense that would apply if this were a deportation appeal. In my judgment there is still a public interest in removal and the relationship is not sufficiently strong for removal to be avoided for the sake of the children in this case.
34. It follows therefore that I find the First-tier Tribunal did err in law. The First-tier Tribunal did not properly direct its mind to the requirements of paragraph 117B(6) and I set aside the decision of the First-tier Tribunal.
35. I see no reason for a further hearing. The necessary evidence is available. Irrational findings have been made. Where I disagree with the findings of the First-tier Tribunal I have shown this and I do accept that there is a genuine and subsisting parental relationship but not one which is sufficient to justify the appellant remaining even though this is not a case where the public interest strictly and unyieldingly requires his removal. It follows therefore that although I find the First-tier Tribunal erred and set aside its decision I substitute a decision dismissing the appellant’s appeal against the decision of the Secretary of State.
Notice of Decision
The appeal is allowed but only to the extent that I substitute the existing decision with a decision to dismiss the appeal against the Respondent’s decision but for different reasons.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 16 March 2017