Tribunal decisions

The decision

IAC-AH-CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27272/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 February 2017
On 28 February 2017

Before

DUPTY UPPER TRIBUNAL JUDGE MONSON

Between

MS ANTOINETTE SOPHIA DOUGLAS
(anonymity direction NOT MADE)
Appellant
and

Secretary of state for the home department
Respondent

Representation:
For the Appellant: Mr D Balroop, Counsel instructed by Greenland Lawyers LLP
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, who is an overstayer, appeals against the decision of the First-tier Tribunal (Judge Timothy Thorne sitting at Taylor House on 1 July 2016) dismissing her appeal against the decision of the Secretary of State to refuse to grant her leave to remain on family or private life grounds. The First-tier Tribunal did not make an anonymity direction in the appellant’s favour, and I do not consider that such a direction is required for these proceedings in the Upper Tribunal.
The Reasons for Granting Permission to Appeal
2. On 16 December 2016 Upper Tribunal Judge Martin, sitting as a Judge of the First-tier Tribunal, granted the appellant permission to appeal for following reasons:
“It is arguable that the Judge erred when considering EX.1 in failing to deal with the claim that the appellant’s partner had a subsisting relationship with a child in the UK.
The other grounds have little merit.”
Relevant Background
3. The appellant is a national of Jamaica, whose date of birth is 3 March 1974. She arrived in the UK on 29 August 1999 to visit family members. She was granted temporary leave to enter until 14 September 1999. She never returned for an interview as requested, and she overstayed.
4. On 16 February 2011 the appellant’s legal representatives submitted an application on her behalf for leave to remain on Article 8 grounds. The appellant relied on family life which she had established with her son, grandchild, brother, sister and partner. She also stated that she was the primary carer of her son’s child who had been born on 8 November 2004.
5. On 3 June 2011 she was interviewed in relation to her immigration status. She said that she was in a relationship with Phillip Morrison. However, she did not live with him.
6. In a letter dated 6 March 2015 Greenland Lawyers advised the Home Office that the appellant had been involved with a new partner by the name of John Robinson (“JR”), for four years.
7. On 16 July 2015 the Secretary of State gave her reasons for refusing the appellant’s human rights application. It was not accepted that she was residing with JR as she claimed. Alternatively, there were not very significant obstacles to her reintegration into Jamaica, if she were required to leave the United Kingdom. She stated that she had a relationship with JR and that she was involved in the life of her son and grandson. Nothing had been submitted to show that these issues presented significant obstacles to her returning to Jamaica. Furthermore, it was noted that when she was interviewed on 3 June 2011, she had said she had a sister living in Kingston, Jamaica; and so she would be able to approach her for support while she readjusted to life in Jamaica.
The Hearing Before, and the Decision of, the First-tier Tribunal
8. The Judge received oral evidence from, among others, the appellant and JR. He adopted as his evidence in chief a witness statement in which he said he had been born in Jamaica in 1971. He had been living in the United Kingdom since 1989, and he was now a British citizen. He had been with the appellant for over four years. They first met in early 2011, and they had been living together since March 2011.
9. He had always played a parental role in the life of his daughter, Zoe, who was born on 4 July 2004. He had not however been registered as her father on the birth certificate. Following a paternity test, he had also discovered that he was not her biological father. Nonetheless, as he had already developed a close bond, and he had become a father-figure in her life, he continued to play an active, parental role in her life and upbringing. He had regular contact with her. The child spent most weekends with him. His family life was now wholly based in the UK. In addition to the appellant and the child, he also had a sister, nephews, nieces, grand-nieces, grand-nephews and cousins all present and settled here.
10. JR was asked about his relationship with Zoe in his oral evidence. He indicated that Zoe’s mother was Zoe’s primary carer. On the topic of contact, he said: “I see her every weekend.”
11. The appellant gave evidence before JR. At paragraph 8 of her witness statement, she gave a list of people with whom she enjoyed family life in the UK. This list did not include Zoe.
12. At paragraph 20 of her witness statement, she said that it would be “difficult” for her partner to relocate to Jamaica with her, as he wished to continue a parental role in his daughter’s life.
13. In his subsequent decision, the Judge found that the appellant had genuine and durable relationship with JR, but that nonetheless she could not succeed under the Rules because of her immigration history and status. At paragraph [46] he set out EX.2 which provides as follows:
For the purposes of paragraph EX.1(b), “insurmountable obstacles” means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.
14. At paragraph [47], the Judge found that the appellant had not established that there were insurmountable obstacles to family life with JR continuing outside the UK:
“This is because (as outlined below in relation to Article 8 ECHR outside the Rules) I am satisfied that it is proportionate to remove the appellant and she and JR can continue their family life together in Jamaica. I have not repeated this analysis here as to do so would be unnecessary duplication.
15. At paragraph [77], the Judge said that in considering proportionality in the context of the specific facts of this case, he had taken into account the following matters:
“(i) There is a legitimate interest in maintaining effective immigration control and the economic well-being of the UK…
(v) JR knew of A’s immigration status when he began his family life with her.
(vi) A & JR and the rest of her family in the UK had never had a legitimate expectation that A could make the UK her home.
(vii) The appellant has not proved, on the balance of probabilities, that she and JR would not have access to adequate medical treatment in Jamaica or that A & JR would be unable to find employment. They both speak English, which is widely spoken in Jamaica. JR has savings and both have knowledge of life in Jamaica.
(viii) The appellant has not proved on the balance of probabilities that she and JR would not be able to find suitable accommodation in Jamaica.
(ix) A & JR have not proved on the balance of probabilities that they are unable to enjoy a private and family life in Jamaica.
(x) A & JR have not proved on the balance of probabilities that they cannot continue their relations with family or friends in the UK by means of telecommunication and or periodic visits.
(xi) For reasons given above, I conclude that removing A would not interfere with the best interests of her grandchildren in the UK.
(xii) All her children and siblings are adults. There is no adequate evidence to establish that her relationship with these adults is of an unusually close nature or involves an unusual level of dependency. I note that WD is partially-sighted and has mobility problems, but although I accept that A visits him, it has not been established that he is reliant on her care.”
16. The Judge went on to say, in paragraph [78], that his conclusion was that the human rights of the appellant and her family and friends in the UK were outweighed by the public interest in her removal.
The Hearing in the Upper Tribunal
17. At the hearing before me to determine whether an error of law was made out, Mr Balroop developed the arguments advanced by him in the application for permission to appeal. He referred me to R (on the application of RK) -v- Secretary of State for the Home Department (S 117B 6; parental relationship) IJR [2016] UKUT 0031 (IAC) in support of his argument that the Judge had not given adequate reasons for finding that there were not insurmountable obstacles to JR accompanying the appellant to Jamaica, given his genuine and subsisting parental relationship with Zoe. The Judge had made no reference to Zoe’s and JR’s predicament when assessing EX.1(b) at paragraph [47] of his decision.
18. He submitted that the Judge’s other error arose in an assessment of Article 8 outside the Rules. In the light of MK (Duty to give reasons) Pakistan [2013] UKUT 641, the Judge had not provided reasons for finding that the appellant did not have a parental relationship with her eldest grandchild. Her evidence, and that of the supporting witnesses, confirmed that the appellant still saw her eldest grandchild frequently and maintained a parental relationship with him. The oral evidence was not challenged (as there was no Presenting Officer) and the Judge did not make a finding that the oral evidence was implausible. So, it was irrational and unlawful for the Judge to make a finding about the appellant’s relationship with her eldest grandchild which ran contrary to the evidence.
Discussion
19. The focus in EX.1(b) is on the ability of a couple to continue their family life “together” outside the UK. On the evidence, Zoe was not part of the couple’s family life together. The Judge found, at paragraph [64], that JR had a family life in the UK with his daughter, Zoe. He did not find that the appellant had established family life with Zoe, and it is not suggested that he erred in law in not doing so. The appellant did not claim to have established family life with Zoe.
20. JR’s relationship with Zoe was a potential obstacle to him settling in Jamaica on a permanent basis, but the appellant did not portray this obstacle as entailing “very serious hardship” for JR. She merely characterised it as a difficulty.
21. It is not the case that the Judge failed to take into account JR’s relationship with his daughter Zoe when assessing whether the requirements of EX.1(b) were made out. He accepted that JR enjoyed family life with Zoe. He cross-referred at paragraph [47] to his findings on proportionality at paragraph [77]. It was open to the Judge to find, as he did at paragraph [77](x) that JR could continue his relationship with his family members in the UK, including Zoe, by means of modern forms of communication and/or periodic visits. He was not bound to find that the JR’s relationship with Zoe constituted an insurmountable obstacle to JR carrying on family life with the Appellant in Jamaica. He was not bound to find that the disruption of contact with Zoe would entail very serious hardship for JR.
22. Because there was no Presenting Officer present at the hearing to cross-examine the witnesses, Mr Balroop submits that the Judge was bound to take at face value what each witness said, unless it was implausible. This is not the case. The Judge was free to read between the lines. Firstly, JR was not Zoe’s primary carer, and he did not claim to be. Secondly, no evidence was adduced on the question of whether Zoe’s biological father did or did not play a role in her life; or as to whether Zoe did or did not have another stepfather as a result of her mother having a new partner. Thirdly, although he claimed in his witness statement to be actively involved in Zoe’s upbringing, JR did not condescend to any detail on this topic. He did not, for example, claim to be making any financial contribution to Zoe’s upkeep. He also did not produce any documents relating to Zoe, such as her birth certificate or school reports, or any other documents which a stepfather might reasonably be expected to have in his possession in circumstances where he was taking an active role in the child’s upbringing.
23. Accordingly, I find that ground 1 is not made out. The Judge has not erred in law in his assessment under EX.1(b). Given the nature and extent of the evidence given on the topic of JR’s relationship with Zoe, the Judge’s conclusion on EX.1(b) is adequately reasoned.
24. Ground 2 does not stand up to scrutiny. The thrust of the evidence given both by the appellant and her son “SM” was that the appellant had exercised parental responsibility in the past for her grandson, TM”. The child had been born on 29 January 2008 to underage parents. However, the quasi-parental relationship had ceased once TM’s mother, “SA”, had taken over the day to day care and responsibility of looking after TM. Again, the Judge was free to read between the lines and to exercise his own judgment on the matter.
25. The cessation of a parental relationship is borne out by the Judge’s summary of SM’s evidence at paragraph [30] of his decision:
I next heard evidence from SM who adopted his witness statement and explained that he had become father to TM when TM was only 15 years of age, and TM’s mother SA had been unable to look after TM for a period. Therefore, A had taken over parental responsibility for TM for a number of years. Now (my emphasis) TM lived with SA, but came to visit A very often…
26. In her witness statement, the appellant said that she continued to have regular contact with TM, and often had primary care of him on weekends. At paragraph 16, she said that she ensured that her son and Sharanee (the child’s mother) continued to “co-parent” the child together.
27. Paragraph 11.2 of the IDIs sets out the factors which a decision-maker must consider in order to determine whether there is a genuine, subsisting parental relationship:
“Does the applicant have a parental relationship with a child?
What is the relationship - biological, adopted, step-child, legal guardian?
Are they the child’s de facto primary carer?
Is the applicant willing and able to look after the child?
Are they physically able to care for the child?
Unless there were very exceptional circumstances, we would generally expect that only two people could be in a parental relationship with a child (my emphasis)”
28. The child’s parents are now old enough to take on the responsibility of parenting the child, and the appellant’s evidence was that she encouraged them to “co-parent” TM. In the circumstances, it was not perverse of the Judge to find that the appellant did not have a parental relationship with TM, as distinct from a grand-parental relationship with him. In RK UTJ Grubb held as follows at paragraph [44]:
“It is unlikely, in my judgment, that a person will be able to establish they have taken on the role of a parent when the biological parents continue to be involved in the child’s life as the child’s parents …”
29. Accordingly, there was no error of law in the Judge not treating section 117B(6) as being engaged.
Notice of Decision
The decision of the First-tier Tribunal did not contain an error of law, and accordingly the decision stands.
This appeal to the Upper Tribunal is dismissed.
I make no anonymity direction.

Signed Date February 2017

Judge Monson
Deputy Upper Tribunal Judge