Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26281/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9th September 2016
On 23rd September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between

Muhammad Junaid Majeed
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Harris, Counsel, instructed by M & K Solicitors
For the Respondent: Ms A Fijiwala, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is the Appellant's appeal against the decision of First-tier Tribunal Judge Lodge promulgated on 29th February 2016 in which Judge Lodge dismissed the Appellant's appeal against the Respondent's decision to refuse him leave to remain in the United Kingdom based on his family life for the purposes of Article 8.
2. The First-tier Tribunal Judge in his decision noted that the Appellant had a partner, Mrs Sabir, in the UK and although satisfied at paragraph 27 that that they were living together and have been for some time in fact, he found at paragraph 28, that if that were the only factor in the appeal he would not have been able to find that it would be unreasonable to expect her to return with the Appellant to Pakistan, as she had entered into a relationship with him at a time when his presence in the UK was either unlawful or precarious and she had entered into their relationship with her eyes wide open.
3. However, the Judge went on to find that the real issue in the case was the fact that the couple had British Citizen children, who were then at that stage a little over 4 years old, 3 years old and 2 years old. The children were combination of one who was the appellant's biological child, one who he had previously thought was his biological child and one step child. The eldest had just at that stage started primary school education. The only issue was proportionality.
4. The judge in his decision considered in paragraph 31 that the children were young and had not developed social and educational ties, but went on in paragraph 32 to note that they were British citizens with British passports and that they were entitled to the benefits, social, cultural and educational, of British citizenship and that further they were entitled to grow up in the country in which they were citizens. He found that he was satisfied that it was in their best interests to remain in the United Kingdom and he was satisfied that removal of the Appellant would be a disproportionate interference with the right to family life. He also found that it would be unreasonable to expect the children to follow their stepfather to Pakistan.
5. The First-tier Tribunal Judge then went on at paragraph 33 to consider the question as to whether it would be proportionate to expect the Appellant to make an application for entry clearance from abroad and the judge went on between paragraphs 33 to 36 to find that it would not be unreasonable or disproportionate to expect the Appellant to temporarily be parted from his family and to return to Pakistan to make an application for entry clearance and on that basis, although he found that it would be a disproportionate interference with the right to family life and it would be unreasonable to expect the children to follow their father and stepfather to Pakistan that the Appellant's human rights were not breached as a result of the decision made by the Respondent and he therefore dismissed the appeal on human rights grounds.
6. The Appellant has now sought to appeal against that decision for the reasons set out in full within the Grounds of Appeal. That is a matter of record and is therefore not repeated in full here, especially given the concessions that have now been made by Ms Fijiwala on behalf of the Secretary of State.
7. In summary, within the Grounds of Appeal it is argued that the judge failed to consider Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 as amended and that the judge also erred in that despite his findings at paragraph 32 of the determination regarding what would be the best interests of the children in that it would not be reasonable to expect the children to leave the UK, to then find that the appeal should be dismissed and that the Appellant could be returned to Pakistan to make an entry clearance application from there.
8. I have heard from Mr Harris, Counsel for the Appellant, and from Ms Fijiwala, Senior Home Office Presenting Officer, for the Respondent. Ms Fijiwala accepts today that the decision of the First-tier Tribunal did contain errors of law and she accepted that Section 117B was not considered at all by the judge and further accepted that the judge was wrong to consider that the Appellant should have returned back to Pakistan to make an application for entry clearance from Pakistan as that, she concedes, was not envisaged by Section 117B(6).
9. In that regard she quite properly conceded that there were material errors in the decision and argued that the case should be remitted back to the First-tier Tribunal for rehearing. Mr Harris on behalf of the Appellant asked that I take the findings of the First-tier Tribunal Judge at paragraph 32 of the decision and apply those findings that it would be unreasonable to expect the children to follow their father and stepfather to Pakistan to the actual facts of the case and to decide the case on that basis rather than remitting it back.
My Finding on Error of Law Materiality
10. When one looks at the decision of First-tier Tribunal Judge Lodge, he has not made any reference as he is required to do when considering the appeal on the basis of Article 8 outside of the Immigration Rules to the provisions of Part 5 of the Nationality, Immigration and Asylum Act 2002 as amended by the Immigration Act 2014. He has failed specifically in respect of this case to mention the provisions of Section 117B(6), which deals with the position of British citizens and whether or not it was reasonable to expect them to return in this case to Pakistan and whether it was reasonable to expect them to leave the UK for the purposes of Section 117B(6).
11. Given the concession quite properly made by Ms Fijiwala I do accept and find as a fact that the judge has materially erred in that regard in failing to consider the mandatory requirement of Section 117B and in particular in this case the provisions of Section 117B(6).
12. I also agree with Ms Fijiwala that the judge also erred in law, having made his findings at paragraph 32, to go on to consider whether or not the Appellant should be expected to make an application for entry clearance from abroad. This is a case in which it was not being sought to be argued that there were no insurmountable obstacles to family life or private life continuing abroad but that it would be disproportionate to require the Appellant to make an application for entry clearance from abroad such as in the case of R (on the application of Chen) v Secretary of State for the Home Department (Appendix FM - Chikwamba) [2015] UKUT 00180.
13. This is a case where in fact the question that should have been considered by the judge was a consideration as to whether or not it was reasonable to expect the children to leave under Section 117B(6) and Ms Fijiwala quite properly concedes obviously that it was wrong in those circumstances for the judge to go on to consider whether or not an application should have been made from abroad.
14. If the requirements of Section 117B(6) were met then, as stated by Lord Justice Elias in the case of MA (Pakistan) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705, then Article 8 is breached.
15. Lord Justice Elias in the case of MA (Pakistan) & Ors when considering that particular Section considered the issue as to whether or not Section 117B(6) was purely child-centred or whether the consideration as to whether it was reasonable to expect the child to leave the UK involved a consideration of the wider public interest factors applicable in the case.
16. Although Judge Elias made it clear that he thought himself that it should be a consideration of the best interests of the child, he felt constrained by the previous Court of Appeal decision in MM (Uganda) and that that he ought not to depart from the previous decision and that a consideration under Section 117B(6) therefore had to consider the wider public interest criteria in considering whether or not it would be reasonable to expect a child to leave.
17. When one looks at the wording of the judgment by Judge Lodge at paragraph 32 he has clearly considered that the children were British citizens with British passports, entitled to grow up in the country in which they were citizens and found that it was in their best interests for them to remain in the UK. He then goes on to state simply: "I am therefore satisfied that removal of the Appellant would be a disproportionate interference with the right to family life and it would be unreasonable to expect the children to follow their father/stepfather to Pakistan."
18. It is unclear from that paragraph as to whether or not he has actually then taken into account the wider public interest considerations, as required by the Court of Appeal in the case of MA (Pakistan). He appears from his wording simply to have looked at what is in the best interests of the children and there is no reference to wider public interest criteria such as the immigration history of the appellant.
19. In those circumstances I do not consider that it is a case in which I can safely adopt the findings of the First-Tier Tribunal Judge as being an full and proper analysis of the wider public interest considerations applicable under Section 117B(6). Therefore, I consider that his analysis and findings in respect of the whole case should be set aside and reconsidered by a different First-Tier Tribunal, given the amount of fact-finding that that will require. I find that the case should be remitted back to the First-tier Tribunal for rehearing before any judge other than First-tier Tribunal Judge Lodge.
Notice of Decision
The decision of First-tier Tribunal Judge Lodge does contain material errors of law and is set aside. I remit the case back to the First-tier Tribunal for rehearing to be heard before any First-tier Tribunal Judge other than First-tier Tribunal Judge Lodge.
I make no order in respect of anonymity, no such order having been sought before me.

Signed Dated 21st September 2016

R F McGinty
Deputy Upper Tribunal Judge McGinty