Tribunal decisions

The decision

St

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23997/2015

THE IMMIGRATION ACTS

At Field House
On 15th March 2017
Decision & Reasons Promulgated
On 16th March 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

MR.A.O.H
(ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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 original Appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

Representation:
For the Appellant: Mr B. Halligan, Counsel instructed by Freemans Solicitors.
For the Respondent: Mr Parminder Singh, Presenting Officer.

DECISION AND REASONS
Introduction
1. The appellant has been given permission to appeal the decision of First-tier Judge Keane who dismissed his appeal in the decision promulgated on 3 October 2016.
2. He is a national of Somalia, born in October 1983. He had been living in Germany where he had refugee status. In August 2014 he said he married Ms SMA by proxy. He travelled from Germany to the Republic of Ireland and from there flew to the United Kingdom using German travel documents. He arrived in November 2014 and he and Ms SMA began living together.
3. He was arrested in March 2015 as it was believed he was an illegal immigrant. He then made application for leave to remain on the basis of his relationship with Ms SMA.
4. The respondent refused his application in June 2015. Regarding family life under the immigration rules, he did not succeed under the partner route. The respondent took the view that his marriage was not recognised as valid under UK law. In the absence of a valid marriage he had not been living with Ms SMA for at least two years before the date of the application in a relationship akin to marriage. As he had no dependent children the parent route was not open to him. Regarding private life under the rules at paragraph 276 ADE he had only been here a short time and there were no very significant obstacles to his reintegration into life in Somalia where he had lived the first 23 years of his life of the following three spent in Germany. No exceptional circumstances were identified in respect of his private or family life which would require the grant of leave outside the rules.
The First tier Tribunal
5. For the First-tier hearing statements were prepared from the appellant and Ms M.He said they met whilst Ms SMA was on holiday in Germany and the relationship began shortly after this. They entered into a proxy Islamic marriage in August 2013 with a certificate being issued by the Islamic Centre in London .He refers to their relationship and Ms SMA’s integration into the United Kingdom and the situation in Somalia.
6. At the hearing before First-tier Judge Kean the appellant's Counsel conceded that the application could not succeed under the immigration rules and the appeal was based on freestanding article 8 grounds. It was not in dispute that the appellant had been accepted as a refugee by the German authorities who had issued him with travel documents.
7. At hearing it was argued that Ms SMA could not leave the United Kingdom because she was caring for her late sister's daughter as well as her own children. Section 117 B of the Immigration Act 2014 was raised at the hearing as well a section 55 of the Borders, Citizenship and Immigration Act 2009 in respect of the children.
8. First-tier Judge Kean pointed out that it had been conceded by the appellant representative the appeal could not succeed under the rules. The judge also pointed out that no argument was advanced that they were lawfully married. There was no challenge to their relationship and subsisting and being genuine. There was also no reason to doubt Ms SMA had lived in the United Kingdom for 18 years and was responsible for her son and niece. It was also noted as undisputed that the appellant had been granted refugee status by the German authorities.
9. Having raised these factors the judge at paragraph 8 of the decision found no exceptional circumstances warranting the grant of leave outside the rules. The judge concluded the decision was proportionate to the rights of the appellant, Ms SMA and her two children and in respect of the appellant's private life. The judge did accept the existence of a family and private life from the evidence and that Ms SMA would face hardship as would her children in seeking to live outside the United Kingdom. The judge raised the possibility of family life continuing in Germany.
10. At paragraph 10 the judge pointed out that the appellant had entered the United Kingdom illegally, describing him as having a lamentable immigration history. The judge indicated that the parties affected were all aware of his lack of status. Given his status and the provisions of section 117 B the judge attached little weight to the relationship formed in the circumstance. The judge referred to a dearth of evidence about the sixteen-year-old niece of Ms SMA.
The Upper Tribunal
11. In seeking permission to appeal the appellant's representatives focused upon Ms SMA’s children and her niece, arguing judge did not deal adequately with them in relation to article 8.
12. Permission to appeal was granted on the basis it was arguable the judge failed to consider the quality of the relationship between the appellant and Ms SMA of hardship caused by the separation and the best interests of the children.
13. The respondent lodged a rule 24 response contending that the judge’s approach article 8 was in accordance with the jurisprudence including SS Congo and that there was very little evidence raised about the children in the appeal.
14. At hearing, MrHalligan submitted that the judge having found a genuine family relationship did not deal with the other family members. He said Ms SMA had two sons aged 22 and 16 as well as her niece, all of whom are British.
15. In response, Mr Singh submitted that the judge did deal with the relationship with Ms SMA at paragraphs 9 and 10 of the decision and acknowledged there would be some hardship caused by the separation. The judge had suggested the possibility of Germany as a country where the parties could be united. It was submitted it was open to the judge to conclude it was not disproportionate to remove the appellant bearing in mind there was no recognised marriage and the relationship was established when he was here illegally.
Consideration
16. The judge can only deal with the case that was presented. I note from the file there was little reference to the children. The application was made for leave as a partner. At 5.4 of the application there is reference to a brother-in-law and sister-in-law living in the household as well as Ms SMA’s sons, then aged 20, 16, and her niece. The covering letter from the appellant's representatives focuses upon the appellant relationship with Ms SMA. The letter was dated the 19 March 2015 with the appellant having arrived in November 2014. Consequently, the family unit had been together for a very short time. Nowhere in the letter is there a reference to the children.
17. The grounds of appeal focus upon the appellant’s relationship with Ms SMA and make no reference to the children. The statements prepared for the First-tier hearing make no specific reference to the children. In the appeal bundle there is a joint statement from Ms SMA’s siblings rather than her children. The appellant simply states he has been living with his wife and her family since he arrived. She makes no reference to the children in her statement.
18. Different Counsel appeared for the appellant at the First-tier tribunal. The record of proceedings is not typed. It indicates there was some reference to the children, with the appellant being asked if he had a fatherly relationship with them. A Mr AMA who would appear to be Ms SMA’s brother gave evidence briefly. Paragraph 4 of the decision refers to him confirming the joint letter from her siblings. In submissions there was reference to the children by the representatives as part of the submissions but the focus was upon Ms SMA. Paragraph 5 of the decision refers to the respondent's representative mentioning Ms SMA’s 16-year-old daughter (referred to as her son elsewhere) and section 55 and there is mention of the children by counsel for the appellant.
19. At paragraph 7 the judge acknowledged the existence of family life which included the children but concluded the decision was proportionate. The judge did acknowledge that they would be hardship caused by the separation and then factored in the section 117B considerations. It is true that the decision does not go into detail about the children and the niece. However this appears to be a reflection of the way the case was presented, with the judge commenting in particular on the dearth of evidence about the niece. A genuine relationship was found with the appellant's children. Regarding section117 B (6) (b) the judge had left open the possibility of a move to Germany. The judge heard from the parties and makes reference to the relevant issues arising. I find the conclusion was one open to the judge and no material error of law has been demonstrated.

Decision.
20. The decision of First-tier judge Keane dismissing the appellant's appeal shall stand. No material error of law has been established.

Deputy Upper Tribunal Judge Farrelly.