Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/25000/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 January 2017
On 24 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

THE Secretary of State FOR THE HOME DEPARTMENT
Appellant
and

MR MICHAEL CLOTTEY MARTEY
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant: Mr S Walker, Senior Home Office Presenting Officer
For the Respondent: Mr E Akohene, Afrifa and Partners Solicitors

DECISION AND REASONS

Background
1. The appellant in this case is the Secretary of State and the respondent is Mr Martey. However for the purposes of this decision I refer to the parties as they were before the First-tier Tribunal where Mr Martey was the appellant. Mr Martey is a citizen of Ghana born on 21 November 1973. He appealed to the First-tier Tribunal against the decision of the respondent dated 27 July 2015 to refuse to grant him leave to remain in the UK on human rights grounds. In a decision promulgated on 26 July 2016 Judge of the First-tier Tribunal Callow allowed the appellant's appeal under Article 8 of the ECHR.
2. The Secretary of State appeals with permission on the grounds that the judge, at paragraph 15 of the determination, followed the case of Treebhawon and Others (Section 117B(6)) [2015] UKUT 674 which detailed that Sections 117B(1) to (3) do not apply to this appellant and the fact that his private life in the UK has been established at a time when he had no leave to reside qualifies for little weight to be attributed. The respondent relied on the Court of Appeal decisions in MA (Pakistan) EWCA Civ 705 [2016] and Rhuppiah EWCA Civ 803 [2016] where the immigration status of the appellant has been found to be an important factor in considering the reasonableness test. The Secretary of State further submitted that the judge was required to consider the appeal through the prism of the Immigration Rules and then identify what compelling circumstances are which warrant consideration outside of the Rules and that he erred in not doing so.
3. Mr Walker on behalf of the Secretary of State, although he relied on the Secretary of State's grounds did not do so with any force, indicating that it was difficult for him to argue given the age of the children. Mr Walker also conceded that the judge had, at paragraph [15] of the decision and reasons, taken into consideration that the appellant had been unlawfully, contrary to the assertion in the Secretary of State's grounds.
4. As I indicated at the hearing, I am satisfied that the decision of the First-tier Tribunal Judge was one that was open to him and shall stand. In relation to the failure of the First-tier Immigration Judge to consider the Immigration Rules and then identify what the compelling circumstances were, it was not disputed that the appellant could not meet the Immigration Rules under Appendix FM. The judge, at [10] of the decision and reasons, set out the facts in the case and it was not disputed that the parties were all in genuine and subsisting relationships and that the children were British citizens aged 13 and 11 at that time who had lived all their lives in the UK. The judge found that "the findings of fact are such that the appeal falls for consideration under Article 8 outside the Rules". The fact that the judge did not use the terminology or expressly discuss the relevant case law including SS (Congo) & Ors [2015] EWCA Civ 387 is not a material error. Indeed, Mr Walker conceded that it would have been a material error for the judge not to consider Article 8 outside of the Immigration Rules given the children in this case.
5. At paragraph [3] of the decision and reasons the judge noted that the appeal was only on Article 8 outside the Immigration Rules and at paragraph [6] had summarised the respondent's refusal in relation to the appellant not meeting the requirements for a grant of leave to remain as a partner under Appendix FM of the Rules and that in relation to private life he failed to meet the requirements of paragraph 276ADE(1)(iii) to (vi) of the Immigration Rules. It was clear therefore that the judge did have in mind the relevant test. No material error is disclosed, which although not expressly conceded, was essentially not disputed by Mr Walker.
6. In relation to the remaining grounds, that the judge did not properly apply the Court of Appeal jurisprudence in MA (Pakistan) and Rhuppiah, inter alia, that the immigration status of the appellant is an important factor in considering the reasonableness test, again I am not satisfied that the judge fell into any material error. As set out at paragraph 114 of MA (Pakistan) Lady Justice King confirmed that "the application of the reasonableness test requires the judge to have regard to the wider public interests, and they require consideration of the immigration history and status of the parents". Judges must therefore consider the immigration status of the parents. There was no error in applying Treebhawon and Others. The judge considered the appellant's status including setting out at [15] that the appellant has been in the UK for the most part unlawfully. The judge made a number of significant findings including, as set out at [14], that the children have lived all their lives in the UK which have:
"been totally informed by UK culture, values, pastimes, living standards, language and the current education system. School reports show that they are both making progress. Their integration in UK society and culture is complete. Beyond the mere fact that they were of Ghanaian nationality their connection with this country is non-existent. Their best interests will be served by remaining in the UK. As to family life, there are obvious bonds of affection, respect and dependency between them, the appellant and their mother".
The judge also correctly directed himself in relation to whether it would be 'reasonable' to expect the children to leave the UK, including reminding himself of the presidential guidance in PD and Others [2016] UKUT 108 (IAC):
"The longer the child has resided in the UK, the more the balance will begin to swing in terms of it being unreasonable to expect the child to leave the UK and strong reasons will be required in order to refuse a case with continuous UK residence of more than seven years".
7. I am satisfied however that the appellant's immigration history was a factor in his consideration of the reasonableness test, including finding as he did that the appellant, despite being in the UK since 1999, has been here "for the most part unlawfully." As held in MA (Pakistan):
"The fact that the parents are overstayers and have no right to remain in their own right can thereafter be weighed in the proportionality balance against allowing the child to remain, but that is after recognition that the child's seven years of residence is a significant factor pointing the other way".
8. As not materially disputed by Mr Walker in any substantive way, the decision of the First-tier Tribunal was one that was plainly open to the judge and must stand.

Notice of Decision

The decision of the First-tier Tribunal does not disclose an error of law and is maintained. The appeal of the Secretary of State is dismissed.

No anonymity direction was sought or is made.

Signed Date

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

No fee award application was sought or is made.

Signed Date

Deputy Upper Tribunal Judge Hutchinson