Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26781/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 12th December 2016
On 17th January 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

Mr. KWME OWUSU
(NO ANONYITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

An Anonymity Direction is NOT made. There has been no request and there is no apparent need.

Representation:
For the Appellant: Himself.
For the Respondent: Mrs Aboni, Home Office Presenting Officer.

DECISION AND REASONS
Introduction
1. Although it is the respondent who is appealing in these proceedings I will continue to refer to the parties as in the First-tier Tribunal.
2. The appellant is a national of Ghana, born on 17 February 1983. He came to the United Kingdom in July 2000 on a six months visit Visa and then overstayed. He began a relationship with Mrs Naomi Achiaa who is also from Ghana. On 23 December 2011 she gave birth to their daughter C and, on 3 June 2013, to their son,O. His partner has an older child P from her marriage, born on 28 November 2004. Her marriage was dissolved by divorce on 7 December 2010.
3. He made application for leave to remain on the 5th February 2015 on the basis of his family life.
4. His application was refused on 9 July 2015 and a notice for his removal was issued at the same time. The respondent had considered the application under the immigration rules. It was not accepted that he and Mrs Naomi Achiaa were in a genuine and subsisting relationship akin to marriage. This been in existence for at least two years prior to the date of the application. It was not accepted that Ms Naomi Achiaa was a British citizen or settled in the United Kingdom. Regarding their children, the appellant could not succeed under the parent route in the immigration rules because the children were not British nationals nor had they lived in the United Kingdom seven years. Furthermore, the appellant did not have sole responsibility for their care. Regarding his private life the respondent took the view that he could reintegrate into life in Ghana. No exceptional circumstances were identified to justify allowing the appeal on free-standing article 8 basis. It was accepted that the appellant had a close relationship with Mrs Achiaa's child P but this was not felt enough to justify the grant of a period of leave.
The First -tier Tribunal
5. His appeal was heard on 29 March 2016 before Judge of the First-tier Tribunal Wedderspoon and Designated Judge Baird. The appellant, like now, was unrepresented. The appeal was allowed on human rights grounds. The appellant's oral evidence was that he began his relationship with Mrs Naomi Achiaa in 2004 and they lived together in London and later in Liverpool. Mrs Naomi Achiaa gave evidence and said that she acquired British citizenship on 21 February 2010.
6. The tribunal referred to the relevant immigration rules in relation to family life and private life. Reference was also made to section 117 B of the Nationality, Immigration and Asylum Act 2002. The tribunal also referred to the decision of SS v Congo [2015] EWCA Civ 387.
7. The tribunal accepted the evidence of the appellant and Mrs Naomi Achiaa that they had been cohabiting for more than two years and found that the relationship was genuine and subsisting. It was accepted that Mrs Naomi Achiaa is a British national as are all of the children. The financial requirements under appendix FM were not met.
8. Regarding paragraph 276 ADE the tribunal concluded that although the appellant had been away from Ghana for a number of years he would be able to integrate back into life there.
9. The tribunal found the existence of a family and private life within the meaning of article 8. It was accepted the appellant had a close bond with P and that she had been educated here since 2009 and would find difficulty in settling in Ghana. It was felt to remove the appellant would have a detrimental effect on the rest of the family and would in effect be requiring the whole family, consisting of four British citizens, to move to Ghana.
The Upper Tribunal.
10. Permission to appeal was sought by the respondent on the basis that although the decision referred to SS v Congo [2015] EWCA Civ 387 the tribunal did not adequately consider whether the rules provided for adequate consideration of the article 8 issues involved. It was contended that the tribunal should have had regard to the provisions of EX1. It was argued that the tribunal had treated the best interests of the children as a`trump card'rather than a primary consideration and did not properly follow EV Philippines and others v SSHD [2014] 874 that the best interests of the children should be considered in light of the position of their parents.
11. Permission to appeal was granted on the basis argued.
12. At hearing, the presenting officer contended that the approach to article 8 was flawed and undue weight was given to the position of the children. Furthermore it was contended there was no proper consideration of paragraph 276 ADE. It was accepted that the relationships were genuine.
13. The appellant advised me that his partner acquired a permanent right of residence. He said that her husband had acquired French nationality and she came here as his family member under Treaty Provisions. A copy of her residence card is in the papers. Her former husband has been living in France for the past four years and has no contact with his daughter. His partner works part-time. His partner's child had been bullied at school and the family had involve social services. To this effect he provided me with a letter dated 8 December 2016.
Consideration
14. The tribunal's decision is poorly structured. The refusal under the partner route of appendix FM appears to be on the basis the financial requirements are not met. There is no explanation for the conclusion that Mrs Naomi Achiaa and the three children are British citizens though this was not disputed before me. There is no clear consideration of EX1.
15. Paragraph 276 ADE is referred to at paragraph 31 in the context of a free-standing assessment rather than the immigration rules. Notwithstanding the lack of sequence the decision does indicate that the appellant would not benefit from 276ADE(1)(vi).
16. The appeal has been allowed of free-standing article 8 basis,primarily because of the situation of the appellant's partner and the three children. Reference is made to section 117 B(4) and (5) and the weight to be attached to the relationships. This would indicate the tribunal was conscious of this provision when carrying out a free-standing article 8 assessment but the tribunal could have been clearer.
17. In SS v Congo [2015] EWCA Civ 387 the Court of Appeal at paragraph 43 warned tribunals not to attach undue weight to the concept of the rules being a complete code. Paragraph 44 referred to the proper approach being to identify the relevant rule. If this was satisfied that would be the end of the matter. There can be a reasonable case for going beyond the rules and the interests of a child can reduce the margin of appreciation afforded to the respondent. The decision of EV Philippines and others v SSHD [2014] 874 however highlights that the maintenance of immigration control can outweigh the child's best interests.
18. The First-tier Tribunal decision would have benefited from a structured sequential approach. It is clear that the tribunal were influenced by the evidence of the appellant and his partner. The history given and the ongoing nature of the relationship between the appellant, his partner and all the children of the family was accepted.
19. The tribunal found the paragraph 276 ADE was not met.
20. The appellant could not meet all of the requirements of appendix FM. The tribunal should have clearly dealt with EX1. Impliedly, the tribunal took the view the exceptions did not assist the appellant otherwise the appeal should have been allowed under the rules.
21. The considerations in a free-standing article 8 assessment are wider than EX1.Although the decision emphasises the interests of the children, particularly the eldest child, the decision does convey the impression that the entire family dynamics were considered. The issue is not the clarity of analysis by the tribunal but whether there has been a material error of law by the tribunal in reaching its decision. Whilst I do find shortcomings in the structure of the decision I have looked at the decision in its entirety and the facts found. It is my conclusion the tribunal was entitled, having refused the appeal under the immigration rules, to go on to consider a free-standing article 8 assessment and to allow the appeal on that basis.

Decision
The decision of the First-tier Tribunal allowing the appeal on human rights grounds does not materially err in law and shall stand.

Deputy Judge of the Upper Tribunal Farrelly