Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23545/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 April 2017
On 26 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE R C CAMPBELL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

A
(ANONYMITY DIRECTION made)
Respondent
Representation:

For the Appellant: Mr J Parkinson (Senior Home Officer Presenting Officer)
For the Respondent: Ms E Daykin (Counsel)

DECISION AND REASONS

1. For the purposes of this decision the respondent, Mr A, will be described as the appellant, as he was before the First-tier Tribunal and the appellant, the Secretary of State, will where necessary be described as the respondent. The appellant’s appeal against a decision to refuse his human rights claim, in the context of refusal of an application for leave to remain, was allowed by First-tier Tribunal Judge Gaskell (“the judge”) in a decision promulgated on 13 September 2016. The appellant applied for leave as the parent of a British citizen child with whom he has a contact order arrangement in place, following an order made in the Central Family Court on 16 January 2015.

2. The judge found as a fact that the appellant has a parental relationship with his former partner’s daughter. The child was born in London on 22 January 2010 and both she and her mother are British citizens. At the time, it was believed that the appellant was the biological father of his daughter. DNA evidence obtained in 2015 showed otherwise. The judge found that the appellant’s relationship with the child had not changed since this discovery and, having heard evidence from the child’s mother, went on to find that the biological father has no contact with the child and plays no part in her life. In paragraph 12 of the decision, the judge found that the appellant is the only father the child has ever known. Having considered the Immigration Rules (“the rules”), and having also taken into account section 55 of the 2009 Act, the judge concluded that the requirements of the rules were met, even though the appellant does not fall within the definition of “parent” found in paragraph 6 of the rules. He made an assessment outside the rules and found that there was no public interest in the appellant’s removal from the United Kingdom and that it would not be reasonable to expect the child to leave the United Kingdom. He allowed the appeal under the rules and on human rights grounds.

3. In the Secretary of State’s grounds in support of the application, it was contended that the judge erred in relation to his assessment of the position under the rules. There is nothing in paragraph 6 or elsewhere indicating that the definitions are not intended to be exhaustive. In the alternative, the judge gave no adequate reasons for finding that the appellant is a parent. Similarly, the judge failed to give sufficient reasons for finding that the appellant’s removal would interfere with his family life with the child, to whom he is not related by blood and with whom he does not live. Permission to appeal was granted on 6 February 2017.

4. In a Rule 24 response prepared by Ms Daykin, who appeared for the appellant in the First-tier Tribunal, attention was drawn to the family court order, making formal the relationship between the appellant and the child. The judge’s finding that the relationship had not changed since the discovery that the appellant was not the biological father was key. The findings were based upon the evidence. The definition of “parent” in paragraph 6 of the rules was considered by the Upper Tribunal in RK (“section 117B(6); “parental relationship” IJR [2016] UKUT 00031 (IAC). The Upper Tribunal held in that case that the definition in paragraph 6 was not determinative of whether a person has a “parental relationship”. It offers a definition of a “parent” rather than what amounts to a “parental relationship”. The individuals listed in the definition do not amount to an exclusive list of those falling within the definition.

5. Paragraph R-LTRPT of the rules does not require an applicant to meet the definition of a parent in paragraph 6 as part of the eligibility criteria. The judge was entitled to conclude that R-LTRPT and EX.1 of the rules were satisfied. Even if the rules assessment was flawed, the correct conclusion followed from the application of section 117B(6) of the 2002 Act. On the facts as found by the judge, the appellant has always had a parental relationship with the child. His name appears on the birth certificate and he has a court order for contact as the father. Save for the fact that they are not related by blood, he is to all intents and purposes her father. The child is a qualified child for the purposes of the 2002 Act and lives with her British citizen mother. The conclusion that it would be unreasonable for the child to leave the United Kingdom is unimpeachable. The Secretary of State has not challenged the factual findings made by the judge and instead appears to challenge the reasoning.

Submissions on Error of Law

6. Mr Parkinson said that the appellant was not a parent for the purposes of the rules. This was so even though paragraph 6 did not contain an exhaustive list of those within scope. There was also no adequate finding in the decision that the appellant is the child’s parent. The evidence relied upon in support of the appellant’s case was not correct. He was named in the birth certificate but was not, in fact, the child’s father. It appeared that those at the child’s school believe that he is her parent although he is not. The arrangements described in the court order were also based on a presumption that the appellant is the father. There appeared to have been no attempt to correct these matters.

7. The contact order allowed eight hours’ contact on Saturdays, again on the basis that the appellant is the father. The key concept was that of a genuine parental relationship but the evidence did not show that this was established in the present case. The decision and reasoning were inadequate in relation to the conclusion that the decision under appeal interfered with family life when it was not clear what precisely that family life consisted of and taking into account the false premise.

8. Ms Daykin said that the Secretary of State had chosen not to provide a representative in the First-tier Tribunal or to challenge the evidence put forward. That was a matter for her. The Secretary of State appeared to have ignored the evidence and the findings made by the judge. The appellant’s application for leave was based on a relationship with the child, as the judge acknowledged. At paragraphs 4 to 10 of the decision the judge made clear findings of fact. The evidence before him included three witness statements, the first supporting the application for leave on the basis that the appellant was the biological father. The Secretary of State requested that a DNA test be taken before considering the application further and the two witness statements showed the dismay at the results of the DNA analysis. Importantly, nothing changed in the relationship between the appellant and the child.

9. So far as the rules are concerned, the Upper Tribunal found in RK that paragraph 6 is not exhaustive. The eligibility requirements for leave to remain as a parent contain no requirement, in Appendix FM, that a person falls within paragraph 6 of the rules. The judge correctly found that the requirements of the rules were met in R-LTRPT. The appellant was required also to meet EX.1 but the judge again made findings that it would not be reasonable for the child to leave. The judge also found that the appellant has a genuine and subsisting parental relationship.

10. In any event, even if the appellant could not meet the requirements of the rules by reason of his failure to fall within paragraph 6, section 117B(6) of the 2002 Act showed that the conclusion reached by the judge was correct. Again, the Secretary of State had made no challenge to the findings of fact. In a brief response, Mr Parkinson invited the Upper Tribunal to find that there was a lack of adequate reasoning. The evidence did not show that the appellant had stepped into the shoes of a parent. Indeed, he was not a parent.

Findings and conclusion on Error of Law

11. As Ms Daykin submitted, the Secretary of State made a choice not to provide a representative at the First-tier Tribunal hearing in August 2016. The decision shows that the judge weighed the evidence before him carefully and clear findings of fact appear at paragraphs 7 to 12. Importantly, it is readily apparent from those paragraphs that the judge found that the appellant and his former partner and indeed his former partner’s child all believed that the appellant was a biological parent until DNA evidence emerged in about May 2015. The discovery that he was not did not, however, change the relationship he had with the child. He and the child’s mother remained friends. As noted earlier, the judge found at paragraph 24 of the decision that it would not be reasonable to expect the child to leave the United Kingdom.

12. In RK the Upper Tribunal considered the definition of a “parent” in paragraph 6 of the rules. It was common ground between the parties in that case that the definition was not determinative of whether the applicant had a “parental relationship” with her grandchildren. In issue were section 117B(6) of the 2002 Act and section 55 of the 2009 Act, rather than a direct consideration of the rules in Appendix FM.

13. Dealing first with section 117B(6) of the 2002 Act, I accept Ms Daykin’s submission that in the light of the findings of fact made by the judge, his overall conclusion was open to him and is sustainable. In the light of the genuine, parental relationship he found, notwithstanding what emerged from the DNA evidence, and the finding that it would not be reasonable to expect the child to leave the United Kingdom, he applied the statute and found that there is no public interest in the appellant’s removal. The judge was entitled to allow the appeal on human rights grounds on this basis.

14. What about the rules? Taking into account the findings that the appellant is the only father the child has ever known and that he has had a developing relationship with the child since 2010, and taking into account the non-exclusive list of those falling within the meaning of a “parent”, he was entitled to conclude that the appellant met the requirements of R-LTRTP and EX.1. As is explained at paragraph 40 of RK, the non-exclusive list in paragraph 6 of the rules concerns, with one exception, situations where a non-biological parent is considered to be a “parent” where one or both biological parents are no longer involved with the child because they have died, the child has been adopted or there has been a genuine transfer of parental responsibility to the “new” parent because the original parent or parents are unable to care for the child. The judge’s found that the child’s biological father has no contact with her, plays no part in her life and that the appellant is the only father she has known. Notwithstanding the DNA evidence, the clear inference drawn was that the appellant has indeed stepped into the shoes of the biological parent. In these circumstances, it would be most surprising if a person in the appellant’s position did not fall within the meaning of a “parent”, for the purposes of paragraph 6 and R-LTRPT. A different phrase appears in EX.1, where what is required is a genuine and subsisting parental relationship but, again, the judge’s findings of fact show for this purpose that the appellant falls within scope.

15. If I am wrong in relation to the rules, and even if the judge did err in allowing the appeal on this basis, any error is plainly not material as he was entitled to allow the appeal on human rights grounds.

16. In summary, the decision does not contain a material error of law and shall stand.

Notice of Decision

The decision of the First-tier Tribunal shall stand.

Signed R C Campbell Date 25 April 2017

Deputy Upper Tribunal Judge R C Campbell

Anonymity

The anonymity direction made by the First-tier Tribunal Judge shall continue in force until or unless a court or Tribunal directs otherwise.

Signed R C Campbell Date 25 April 2017

Deputy Upper Tribunal Judge R C Campbell