Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/24152/2015
IA/24154/2015
IA/24155/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On Monday 26 September 2016
On Tuesday 4 October 2016

Before

UPPER TRIBUNAL JUDGE SMITH

Between

(1) S A
(2) A M
(3) A A
(ANONYMITY DIRECTION made)
Appellants

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms J Bild, Solicitor, Camden Community Law Centre
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Although no anonymity order was made at any earlier stage of the proceedings, two of the Appellants in this case are minor children. Accordingly, it is appropriate that their details and those of their mother be protected. Unless and until a tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify the Appellants or any member of their family. This direction applies both to the Appellants and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION AND REASONS
Introduction
1. The Appellants appeal the Respondent's decisions dated 11 June 2015 refusing them leave to remain in the United Kingdom on the basis of their family and private life. Their appeals were dismissed under and outside the Immigration Rules by Designated First-tier Tribunal Judge Manuell in a decision promulgated on 10 December 2015.
2. Permission to appeal that decision was granted by Upper Tribunal Judge Gill on 10 June 2016 based on the factual developments in relation to the Appellants' immigration status and on the basis that Judge Manuell had arguably erred in finding that he was unable to take those factual developments into account as they were "new matters". The appeal came before Upper Tribunal Judge Canavan on 20 July 2016. She found there to be an error on a point of law on all grounds but in particular because the Judge had failed to consider the effect of removal of the family on the third Appellant whose father (and younger sibling) are in the UK. She therefore set aside the decision of Judge Manuell and directed a resumed hearing. The appeal came before me on the resumed hearing to re-make the decision.
Factual background
3. The First Appellant is a Moroccan national. The Second Appellant is the son of the First Appellant. His father is a Moroccan national who continues to reside in Morocco and from whom the First Appellant is divorced. He is also now registered as a British citizen, having lived in the UK for over ten years. He is aged fifteen years. He retains contact with his father in Morocco via Skype.
4. The First Appellant arrived in the UK on 25 January 2001 at which time she was pregnant with the Second Appellant. Her leave expired in June 2001. Thereafter she overstayed. The Second Appellant was born on 31 July 2001. An application made for indefinite leave to remain by the First and Second Appellants was refused in November 2005 and the appeal against that decision was dismissed in 2007.
5. The First Appellant married Mr AA on 16 November 2009. Mr AA is a Dutch national. They have two children, the Third Appellant born 24 October 2010 and another daughter born on 7 June 2015 who is not an Appellant in these proceedings. The relationship between the First Appellant and Mr AA has broken down. The Appellants were refused a permanent residence card as the family members of an EEA national on 16 June 2014. It appears that they may have appealed that decision but I have not been made aware of the outcome of any appeal on that basis. I am told that the First Appellant's youngest child who is not an Appellant in these proceedings is now registered as a Dutch citizen.
6. The Second Appellant's registration as a British citizen occurred after the hearing before Judge Manuell but prior to the grant of permission to appeal. His appeal therefore falls away by reason of section 104(4A) Nationality, Immigration and Asylum Act 2002. However, his position as a British citizen is highly relevant to the question whether the family can now be removed. Indeed, Judge Gill when granting permission suggested that the Respondent may wish to reconsider the position of the First and Third Appellants in light of that development. For ease of reference, I continue to refer to him as the Second Appellant hereafter even though, strictly, he is no longer an Appellant.
Submissions
7. Mr Bild relied predominantly on the position of the Second Appellant. He submitted that, as a British citizen, the First and Third Appellants' appeals fall to be allowed under the parent and child categories of the Rules. He accepted that the First and Third Appellant cannot meet certain requirements under the Rules such as the financial and English language criteria. However, he relied on EX.1. That does not require the First Appellant to meet those requirements.
8. Mr Bild further pointed to the Respondent's IDIs regarding the ten year route for leave which provides that "save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child." The IDIs go on to note that this reflects the ECJ judgment in Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09 (08 March 2011) ("Zambrano"). He points also to the Supreme Court case of ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 and to what was said in that case regarding the best interests of a British citizen child. He also relied on section 117B(6) Nationality, Immigration and Asylum Act 2002.
9. Mr Bild's subsidiary submission concerned the position of the Third Appellant and the First Appellant's other child who, if their mother was removed from the UK, would be required to leave with her. He submitted that this would be contrary to their EU Treaty rights applying both Zambrano and the principles from the ECJ cases of Ibrahim and Teixeira.
10. Mr Kotas relied in his short submissions on the Respondent's reasons for refusal letter. In response to a question from me, he confirmed that the Respondent did not argue that the British citizenship of the Second Appellant was a "new matter" which I could not take into account. The Respondent's Rule 24 submissions say only that this is a factor to be weighed in the consideration of Article 8 ECHR; it is not a trump card.
The Immigration Rules and Section 117B
Appendix FM
Section EX: Exceptions to certain eligibility requirements for leave to remain as a partner or parent
EX.1. This paragraph applies if
(a) (i) the applicant has a genuine and subsisting parental relationship with a child who-
(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;
(bb) is in the UK;
(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and
(ii) it would not be reasonable to expect the child to leave the UK; or ?
Family life as a child of a person with limited leave as a partner or parent
This route is for a child whose parent is applying for entry clearance or leave, or who has limited leave, as a partner or parent. For further provision on a child seeking to enter or remain in the UK for the purpose of their family life see Part 8 of these Rules.
...
Section R-LTRC: Requirements for leave to remain as a child
R-LTRC.1.1. The requirements to be met for leave to remain as a child are that-
(a) the applicant must be in the UK;
(b) the applicant must have made a valid application for leave to remain as a child; and either
(c) (i) the applicant must not fall for refusal under any of the grounds in Section S- LTR: Suitability-leave to remain; and
(ii) the applicant meets all of the requirements of Section E-LTRC: Eligibility for leave to remain as a child; or
(d) (i) the applicant must not fall for refusal under any of the grounds in Section S- LTR: Suitability-leave to remain; and
(ii) the applicant meets the requirements of paragraphs E-LTRC.1.2.-1.6.; and
(iii) a parent of the applicant has been or is at the same time being granted leave to remain under paragraph D-LTRP.1.2. or D-LTRPT.1.2. or indefinite leave to remain under this Appendix (except as an adult dependent relative).
Section E-LTRC: Eligibility for leave to remain as a child
E-LTRC.1.1. To qualify for limited leave to remain as a child all of the requirements of paragraphs E-LTRC.1.2. to 2.4. must be met (except where paragraph R-LTRC.1.1.(d)(ii) applies).
Relationship requirements
E-LTRC.1.2. The applicant must be under the age of 18 at the date of application or when first granted leave as a child under this route.
E-LTRC.1.3. The applicant must not be married or in a civil partnership.
E-LTRC.1.4. The applicant must not have formed an independent family unit.
E-LTRC.1.5. The applicant must not be leading an independent life.
E-LTRC.1.6. One of the applicant's parents (referred to in this section as the "applicant's parent") must be in the UK and have leave to enter or remain or indefinite leave to remain, or is at the same time being granted leave to remain or indefinite leave to remain, under this Appendix (except as an adult dependent relative), and
(a) the applicant's parent's partner under Appendix FM is also a parent of the applicant; or
(b) the applicant's parent has had and continues to have sole responsibility for the child's upbringing or the applicant normally lives with this parent and not their other parent; or
(c) there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care.
?
Section D-LTRC: Decision on application for leave to remain as a child
D-LTRC.1.1. If the applicant meets the requirements for leave to remain as a child the applicant will be granted leave to remain of a duration which will expire at the same time as the leave granted to the applicant's parent, and subject to a condition of no recourse to public funds. To qualify for indefinite leave to remain as a child of a person with indefinite leave to remain as a partner or parent, the applicant must meet the requirements of paragraph 298 of these rules.
D-LTRC.1.2. If the applicant does not meet the requirements for leave to remain as a child the application will be refused.
Family life as a parent of a child in the UK
Section R-LTRPT: Requirements for limited leave to remain as a parent
R-LTRPT.1.1. The requirements to be met for limited leave to remain as a parent are-
(a) the applicant and the child must be in the UK;
(b) the applicant must have made a valid application for limited or indefinite leave to remain as a parent or partner; and either
(c) (i) the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain; and
(ii) the applicant meets all of the requirements of Section ELTRPT: Eligibility for leave to remain as a parent, or
(d) (i) the applicant must not fall for refusal under S-LTR: Suitability leave to remain; and
(ii) the applicant meets the requirements of paragraphs E-LTRPT.2.2-2.4. and E-LTRPT.3.1-3.2.; and
(iii) paragraph EX.1. applies.
Section E-LTRPT: Eligibility for limited leave to remain as a parent
E-LTRPT.1.1. To qualify for limited leave to remain as a parent all of the requirements of paragraphs E-LTRPT.2.2. to 5.2. must be met.
Relationship requirements
E-LTRPT.2.2. The child of the applicant must be-
(a) under the age of 18 years at the date of application, or where the child has turned 18 years of age since the applicant was first granted entry clearance or leave to remain as a parent under this Appendix, must not have formed an independent family unit or be leading an independent life;
(b) living in the UK; and
(c) a British Citizen or settled in the UK; or
(d) has lived in the UK continuously for at least the 7 years immediately preceding the date of application and paragraph EX.1. applies.
E-LTRPT.2.3. Either-
(a) the applicant must have sole parental responsibility for the child or the child normally lives with the applicant and not their other parent (who is a British Citizen or settled in the UK); or
(b) the parent or carer with whom the child normally lives must be-
(i) a British Citizen in the UK or settled in the UK;
(ii) not the partner of the applicant (which here includes a person who has been in a relationship with the applicant for less than two years prior to the date of application); and
(iii) the applicant must not be eligible to apply for leave to remain as a partner under this Appendix.
E-LTRPT.2.4.
(a) The applicant must provide evidence that they have either-
(i) sole parental responsibility for the child, or that the child normally lives with them; or
(ii) direct access (in person) to the child, as agreed with the parent or carer with whom the child normally lives or as ordered by a court in the UK; and
(b) The applicant must provide evidence that they are taking, and intend to continue to take, an active role in the child's upbringing.
Immigration status requirement
E-LTRPT.3.1. The applicant must not be in the UK-
(a) as a visitor; or
(b) with valid leave granted for a period of 6 months or less, unless that leave was granted pending the outcome of family court or divorce proceedings;
E-LTRPT.3.2. The applicant must not be in the UK -
(a) on temporary admission or temporary release, unless:
(i) the Secretary of State is satisfied that the applicant arrived in the UK more than 6 months prior to the date of application; and
(ii) paragraph EX.1. applies; or
(b) in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX.1. applies.
?
Section D-LTRPT: Decision on application for limited leave to remain as a parent
?
D-LTRPT.1.2. If the applicant meets the requirements in paragraph R-LTRPT.1.1. (a), (b) and (d) for limited leave to remain as a parent they will be granted leave to remain for a period not exceeding 30 months and subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition, and they will be eligible to apply for settlement after a continuous period of at least 120 months with such leave, with limited leave as a parent under paragraph D-LTRPT.1.1., or in the UK with entry clearance as a parent under paragraph D-ECPT.1.1.
D-LTRPT.1.3. If the applicant does not meet the requirements for limited leave to remain as a parent the application will be refused.
Section 117
"117A Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts-
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard-
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), "the public interest question" means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).
117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English-
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to-
(a) a private life, or
(b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where-
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.
?
117DInterpretation of this Part
(1) In this Part-
"Article 8" means Article 8 of the European Convention on Human Rights;
"qualifying child" means a person who is under the age of 18 and who-
(a) is a British citizen or ? "
11. At the date of the Respondent's decision, the Second Appellant had been in the UK for seven years. However, the Respondent did not consider that it would be unreasonable to expect that child to return to Morocco as he is a Moroccan national, he did not have leave to remain in the UK and could avail himself of education there. The Respondent found that it was also reasonable for the other children to return there with the First Appellant. Other than the Second Appellant, though, none could satisfy the requirements of the Rules (and that remains the case). No point was taken in relation to suitability of any of the Appellants. The application on the basis of the First Appellant's private life was rejected on the basis that she had not been in the UK for twenty years and there were no very significant obstacles to her reintegration in Morocco. Whilst it was accepted that the Second Appellant was a child who had been in the UK for seven years, the point was repeated that it was not unreasonable to expect him to return to Morocco. The Third Appellant had not been in the UK for seven years at date of application. Having considered the children's best interests outside the Rules, the Respondent concluded that their best interests were served by remaining with their mother and that they would be returned to Morocco as a family unit.
Discussion and conclusions
12. The Respondent accepted in her decision that EX.1. is of relevance in this case. At the date of her decision, the Second Appellant had been in the UK for seven years. The refusal was on the basis that it would nonetheless be reasonable to expect him to return to Morocco. The position has now moved on, even since the First-tier Tribunal hearing of the appeal. The Second Appellant is no longer simply a child who has spent more than seven years in the UK; he is a British citizen. Moreover, the First Appellant is his sole carer; his father remains in Morocco and he only has intermittent contact with his father via Skype. There is no question therefore but that if the First Appellant were removed, the British citizen child would have to go with her.
13. In ZH (Tanzania), Lady Hale recognised that British citizenship is not a trump card. Nevertheless, the Supreme Court held that the nationality of a child was an issue of particular importance when it came to assessing the best interests of that child which are of a course a primary consideration. It was recognised by the Supreme Court that removal would interfere potentially very significantly with the rights of that child since it effectively deprives the child of any meaningful content to its right as a citizen. That position is now bolstered by the ECJ's judgment in Zambrano. The derivative right given effect to by that judgment is recognised domestically by the Immigration (European Economic Area) Regulations 2006. It is almost certainly the case that, if the First Appellant were to make an application relying on that derivative right now, she would succeed on the facts of this case. The Respondent's own IDIs recognise the importance of British citizenship of a child, no doubt in light of that case law and recognise that a decision maker should not take a decision to remove a parent where the effect of that would be to require a British citizen child to leave the UK.
14. Although Mr Bild prayed in aid also the position of, in particular, the youngest child of the First Appellant who is apparently now registered as a Dutch national, I need go no further than to consider these appeals in light of the position of the Second Appellant. Based on the case law and the Respondent's own IDIs, I am satisfied that it would not be reasonable to expect him to leave the UK.
15. The effect of that is that EX.1.1(a)(ii) of the Rules applies to the position of the First Appellant. She is unable to meet the financial or English language requirements of the Rules but she does not have to if EX.1. is satisfied. Although applying section 117B to the facts of the Appellants' cases for the most part does not avail them - the First Appellant does not speak English, has been here without leave for most of the period of her stay and is not financially independent - section 117B(6) provides that the public interest does not require removal where a person has a genuine and subsisting relationship with a qualifying child and it is not reasonable to expect the child to leave the UK. The Second Appellant meets that definition. I have explained why it is not reasonable for that child to leave the UK.
16. Since the First Appellant therefore meets the Rules (applying EX.1.) for leave to remain as a parent of the Second Appellant, the Third Appellant's appeal also falls to be allowed on the basis that her mother is being granted leave to remain as a parent (see R-LTRC.1.1(d) of the Rules).
DECISION
The appeal of the Second Appellant lapses as he is now a British citizen
The appeals of the First and Third Appellants are allowed under the Rules

Signed Date 30 September 2016

Upper Tribunal Judge Smith