Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/24914/2014

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On 27 February 2017
On 03 March 2017

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

KT
(ANONYMITY DIRECTION made)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms U R Sood, counsel instructed by 1ST Call Immigration Services
For the Respondent: Mr P Duffy, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This case came before the Upper Tribunal by way of an appeal against the decision of First-tier Tribunal Judge McWilliam, promulgated on 19 March 2015.
2. Permission to appeal was granted, and after considerable delay, an error of law subsequently found on the basis that Judge McWilliam had failed to address the matter of the refusal of the appellant's human rights claim pursuant to paragraph S-LTR.1.6. Her decision was set aside by Upper Tribunal Judge Rintoul on 23 January 2017, whose decision is annexed to this decision.
3. The matter came before me for a rehearing to re-make the decision, taking into account the evidence before the First-tier Tribunal along with any further evidence either party adduced.
Anonymity
4. A direction was made previously, and is maintained below.
Background
5. The appellant arrived in the United Kingdom on 2 February 2003. He applied for asylum in the identity of Juba Kaba, a citizen of Liberia. He is in fact a citizen of Gambia. That asylum claim was unsuccessful, as was the respondent's attempt to remove the appellant to Liberia on 4 July 2004. The appellant made a further unsuccessful claim for asylum upon his return to the United Kingdom on 9 July 2004.
6. The appellant's eldest child was born in August 2008. In January 2010, the appellant was sentenced to 8 months' imprisonment for possession of cannabis with intent to supply. His youngest child was born in May 2010. He married his partner during September 2010.
7. The appellant was refused leave to remain as a spouse on 5 July 2011 with no right of appeal. On 10 September 2013, following a judicial review application, the appellant was granted discretionary leave to remain until 10 March 2014 under Article 8, owing to his relationship with his wife and their two daughters.
8. On 10 March 2014, the appellant applied for further leave to remain in the United Kingdom owing to his continuing relationship with his children. By this stage, he had separated from his wife.
The Secretary of State's decision
9. According to the reasons for refusal letter dated 21 May 2014, the respondent was not satisfied that the grounds under which the appellant was previously granted discretionary leave still persisted. In considering the partner route, the respondent decided that the appellant's presence was not conducive to the public good, with reference to S-LTR.1.6, owing to his unspent conviction for the offence in question. In addition, the appellant failed to provide, when asked, evidence that he was in a genuine and subsisting relationship with his wife and therefore it was not accepted that he met the requirements of E-LTRP.1.7. Consequently, the appellant could not benefit from EX.1 of Appendix FM.
10. The Secretary of State also considered the parent route. Reference was made to the need to meet the suitability requirements. In addition, it was asserted that the appellant did not play an active role in his children's upbringing as required by E-LTRPT.2.4(b). EX.1 was considered, however it was said that the appellant failed to provide evidence to show that he had a genuine and subsisting parental relationship with them. Furthermore, it was said that the appellant could not show that he met the requirements of 276ADE(1) of the Rules or that he ought to be granted leave to remain on an exceptional basis.
The hearing
11. Both representatives advised me that they were present at the previous hearing of this matter when a number of concessions were made. Firstly, it was agreed that the appellant was not a foreign national criminal; that suitability was the sole issue under the Rules and that none of the factual findings of the First-tier Tribunal were in issue. Mr Duffy stated that in his view, the case turned on section 117B(6) of the Nationality, Immigration and Asylum Act 2002. In view of the agreement as to the facts of the case, no evidence was called and the appeal proceeded by way of fairly short submissions.
12. Ms Sood relied on her skeleton argument. With reference to the decision in issue, she argued that the respondent had provided no details of the appellant’s offence or whether serious harm was caused. She submitted that this was the appellant’s first and last offence, emphasising that the conviction was for intention to supply rather than actual supply. Ms Sood argued that the decision did not explain why this offence was considered to render the applicant’s presence in the United Kingdom undesirable. Furthermore, she contended that the appellant’s 8-month sentence rendered him worse off than a foreign criminal who came within paragraphs 398 and 399 of the Rules. Essentially, she argued that he met the requirements of the Rules.
13. Mr Duffy did not seek to rely upon his colleague’s skeleton argument. He submitted that the inclusion of minor offences in S-LTR.1.6. was part of hardening stance towards offenders owing to the public interest in the removal of criminals. He was unable to say why the appellant was granted DLR notwithstanding his conviction. Mr Duffy drew attention to the fact that the appellant has a genuine and subsisting relationship with his children and that he was lawfully present in the United Kingdom at the time of his application under Appendix FM. He argued that the appellant’s case could only be considered outside the Rules. As far as section 117B(6) was concerned, he accepted that the Home Office guidance stated that it was never reasonable to expect a British child to leave the United Kingdom. Therefore, the appellant’s separation from his children must be in contemplation. At this point he referred to R (on the application of Ekinci) v Secretary of State for the Home Department [2003] EWCA Civ 765; and argued that section 117B(6) was not engaged. In terms of the overall balancing exercise, he contended that the offending was sufficiently serious for the appellant’s separation from his children to be appropriate.
14. In reply, Ms Sood referred to the respondent’s discretion as to when to apply the suitability requirements. She reiterated that no evidence had been put forward by the respondent as to the appellant’s character, details of his conviction, sentencing remarks or probation reports. Furthermore, there had been no supplemental decision later addressing the current position. The respondent’s previous case was simply that the appellant’s children could leave the United Kingdom with him and the respondent’s current position had not been argued before. She urged me to remake the decision based on the previous judge’s properly made findings.
15. At the end of the hearing I reserved my decision.
Findings
16. The previous judge heard oral evidence from the appellant and his former wife. She was impressed by the latter’s evidence and found her to be a credible witness. The judge found the appellant’s evidence with regard to his relationship with his children to be credible and corroborated by his witness as well as the documentary evidence provided.
17. While considering the appellant’s oral evidence in the context of his conviction and immigration history, the previous judge concluded that he had a genuine and subsisting parental relationship with his daughters. She further found that the appellant played a historic role in caring for his children; had access rights to them; that he was taking and intends to continue to take an active role in their upbringing.
18. The previous judge made further findings of fact in relation to the appellant’s offending. She noted that there was no challenge to his evidence that he was in full-time employment and noted the absence of any evidence relied on by the respondent showing a risk of further offending.
19. The principal reason for the refusal of the application under the Rules was the respondent’s contention that the appellant could not meet the following of the following suitability requirement:
S-LTR.1.6. The presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions which do not fall within paragraphs S-LTR.1.3. to 1.5.), character, associations, or other reasons, make it undesirable to allow them to remain in the UK.
20. With reference to S-LTR.1.6, the decision letter simply states;
“It is noted that you have an unspent conviction for possession with intent to supply a class C controlled drug, Cannabis. For these reasons the Secretary of State considers that your presence in the UK is undesirable and you therefore fail to fulfil S-LTR1.6 of Appendix FM of the Immigration Rules.”
21. There is no further analysis by the respondent as to why the appellant’s presence is not conducive to the public good. While clearly, an offence involving intent to supply Class C drugs is serious and obviously relevant to the suitability requirements, that could not be said to be the beginning and end of the matter. In this instance, the respondent was well aware of the conviction prior to the application under Appendix FM being made in March 2014. According to the evidence before me, after being sentenced to 8 months’ imprisonment in 2010, the appellant was considered for deportation. Following judicial review proceedings being commenced, the appellant was granted DLR on 10 September 2013, on the basis of his family life with his children. Representations by the appellant’s representatives in support of his application state that it was understood that the appellant was not living with his former wife at the time of the grant of DLR. In view of the history surrounding the appellant’s conviction, something more than a bare reliance on that conviction was required. In addition to the respondent’s previous willingness to grant the appellant leave to remain notwithstanding his conviction, there is the fact that he had not offended prior to or since the offence in question. Close to seven years have now passed since that conviction. By the time of his hearing before Judge McWilliam in February 2015, the appellant had turned his life around; was engaged in full-time employment and was actively involved in his daughters’ lives. Furthermore, the respondent has adduced no evidence in support of the contention that the appellant’s presence is undesirable, such as the judge’s sentencing remarks; probation reports or any other material. I conclude that the respondent’s discretion ought to have been exercised in the appellant’s favour and that he did not fall foul of the suitability requirements.
22. With regard to the eligibility Rules for parents, it is apparent from the previous judge’s findings that the appellant met the requirements of E-LTRPT2.4 in that he had access rights to his children and provided evidence that he was taking and intends to continue to take an active role in their upbringing.
23. Lastly, under the Rules, the appellant benefits from the criteria set out at EX.1(a), in that the children are British citizens and he has provided evidence that he has a genuine and subsisting parental relationship with them.
24. As the appellant met the requirements of Appendix FM, under the parent route, his appeal is allowed under the Rules.
25. For completeness, I have considered the appellant’s circumstances under Article 8 ECHR, outside the Rules, in the event that I am wrong on the suitability point.
26. I have had regard to sections 117A-D of the 2002 Act. In particular, I have regard to the fact that the maintenance of an effective immigration control is in the public interest as well as to the fact that the appellant does not meet the definition of a foreign criminal owing to his sentence being below the 12 months’ threshold in section 117D(2)(c)(i).
27. Section 117B(6) of the 2002 Act states as follows;
(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.
28. It is undisputed that the best interests of the children affected in this case is for them to remain in the United Kingdom, continuing to live with their mother and continuing to enjoy frequent face-to-face contact with the appellant. They are aged 6 and 8, they have lived in the United Kingdom since birth and both are attending primary school. They are British by birth and have never left the United Kingdom, let alone visited Gambia where the appellant is from. They are of mixed ethnicity, in that their mother is of Caucasian ethnicity and their father, African. Other than their father, they have no connection with Gambia. Their parents are divorced and there is no prospect of their mother taking them to live in or even visit Gambia.
29. On the last point, I note the previous judge’s finding that the mother of the children is supported by welfare benefits and that even if she was willing to take the children to Gambia, the funds to do so are unlikely to be available. Removal of the appellant from the United Kingdom is likely to lead to a severance in the family life between the appellant and his children as well as being detrimental to their understanding of their African ancestry. The suitability requirements could well preclude the appellant being able to successfully seek entry to the United Kingdom in order to seek access to his children under the Rules.
30. Mr Duffy conceded that the appellant was not liable to deportation, that he met the first limb of the aforementioned section and that his department’s guidance indicated that it was never reasonable to expect British citizen children to leave the United Kingdom. His submission was that the appellant should simply be removed and potentially face permanent separation from his children.
31. Following MA (Pakistan) [2016] EWCA Civ 705, in deciding whether it is reasonable to expect a qualifying child to leave the United Kingdom, I am bound by the following conclusion of Elias, LJ at [45]
“In my judgment, if the court should have regard to the conduct of the applicant and any other matters relevant to the public interest when applying the "unduly harsh" concept under section 117C(5), so should it when considering the question of reasonableness under section 117B(6). …I will analyse the appeals on the basis that the Secretary of State's submission on this point is correct and that the only significance of section 117B(6) is that where the seven year rule is satisfied, it is a factor of some weight leaning in favour of leave to remain being granted.”
32. While the children in this case qualify on the basis of their British citizenship, it is relevant to note that at the time of the hearing before me, they are aged 6 and 8 and have lived in the United Kingdom since birth. The fact that the elder child has been here for more than seven years must be given significant weight when carrying out the proportionality exercise, in addition to her nationality. The respondent’s guidance the Immigration Directorate Instructions published in August 2015 and thus after the decision in this case, states that once the seven years' residence is established, there needs to be "strong reasons" for refusing leave.
33. In those circumstances the Court in MA (Pakistan), found:
“After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK. That may be less so when the children are very young because the focus of their lives will be on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child's best interests will be to remain in the UK with his parents as part of a family unit, and that must rank as a primary consideration in the proportionality assessment.”
34. The fact that it is in the best interest of the appellant’s children that the appellant remains in the United Kingdom does not mean that he must be granted leave to remain. As said in MA (Pakistan) at [49]:
“However, the fact that the child has been in the UK for seven years would need to be given significant weight in the proportionality exercise for two related reasons: first, because of its relevance to determining the nature and strength of the child's best interests; and second, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary.”
35. In his case, I have taken account of the significant weight to be given to the need to maintain immigration control; the fact that the appellant has a poor immigration history of falsely claiming to hold another nationality and continuing to reside in the United Kingdom unlawfully following the failure of his asylum claims, prior to being granted DLR. Then there is the matter of his criminal conviction. All these matters are relevant to the balancing exercise in this case. Also relevant is the fact that at the time the appellant sought to remain under Appendix FM, he had been granted a short period of DLR. Furthermore, his offending was isolated, there is no evidence of a propensity to reoffend and he has supported himself by lawful employment rather than offending since his release from custody in 2010. While the appellant’s past conduct is to be deprecated, I conclude that it does not amount to powerful reasons which indicate that leave should not be granted in view of his genuine involvement in the lives of his children.
36. The removal of the appellant from the United Kingdom in these circumstances would not be a proportionate outcome.

Notice of Decision
The appeal is allowed under the Immigration Rules and on human rights grounds (Article8).
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 him or any member of their 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.

Signed Date 14 January 2022

Upper Tribunal Judge Kamara

TO THE RESPONDENT
FEE AWARD
As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make a whole fee award of any fee which has been paid or may be payable for the following reason. The appeal was allowed on the basis of the case put to the Secretary of State.

Signed Date: 14 January 2022

Upper Tribunal Judge Kamara