Tribunal decisions

The decision

IAC-FH-WYL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27823/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
Oral Determination given following hearing

On 16 February 2017
On 13 March 2017

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

MR SHAZIR BOSTAN
(ANONYMITY DIRECTION not made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr T Islam, Solicitor, Citylink Solicitors
For the Respondent: Ms A Brocklesby-Weller, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant in this case is a national of Pakistan, born on 25 July 1983. He arrived in the UK on 16 May 2011 as a Tier 4 Migrant with valid entry clearance until 14 April 2013. A further extension was granted until 25 January 2016. However, his leave was curtailed on 5 March 2014 until 4 May 2014 on the basis that he had submitted a false English language certificate which was something which he disputed. Prior to the expiry of his leave he submitted a fresh application to be allowed to remain. The basis of this application was that his leave should not have been curtailed because he had not exercised fraud. The respondent refused this application in a decision made on 16 July 2015 and the appellant appealed against this decision. His appeal was heard by a panel sitting at Birmingham on 22 June 2016.
2. Twenty days before the hearing of this appeal, on 2 June 2016, the couple had a daughter. Because the child’s mother was a settled migrant (she had indefinite leave to remain) the child is a British citizen. Accordingly the panel was obliged to take this factor into account when considering whether or not the appellant should be entitled to remain under Article 8. The decision being appealed was the respondent’s decision refusing to vary his leave to remain in the United Kingdom and to remove him by way of directions under Section 47 of the Immigration, Asylum and Nationality Act 2006.
3. In the course of the hearing the Tribunal considered whether or not the respondent had established (following the guidance given by this Tribunal in the very well-known case of Qadir) that the TOEIC certificate had been procured by dishonesty. Although the Tribunal had some doubts regarding the appellant’s evidence that he had chosen the test centre in Barking because it was near where he lived and so on it was nonetheless not satisfied having considered the evidence that the respondent had established in the light of the appellant’s explanation that the appellant had obtained the TOEIC certificate fraudulently (see paragraph 22 of the decision). Although having listened to the appellant when answering a question this Tribunal asked him directly at this hearing it is apparent that the appellant’s English is, to say the least, poor, nonetheless this aspect of the decision has not been challenged by the respondent in that there was neither a cross appeal and nor was there a Rule 24 statement challenging the finding that the TOEIC certificate had not been obtained fraudulently. Ms Brocklesby-Weller very fairly accepts that in these circumstances there is no proper basis upon which this finding can be challenged and accordingly this Tribunal must proceed on the basis that the finding that the appellant has not obtained his TOEIC certificate fraudulently is retained.
4. Following the decision of the panel of the First-tier Tribunal the appellant now appeals against the decision permission having been granted by Upper Tribunal Judge Plimmer on 10 January 2017. Her reasons for granting permission were set out as follows:
“1. It is arguable, as contended in the grounds of appeal, that the First-tier Tribunal has failed to consider the reasonableness of expecting a qualifying child to leave the UK in the context of the respondent’s policy as set out in the IDI on Family Migration and the acceptance on the part of the respondent’s counsel in MA (Pakistan) v SSHD [2016] EWCA Civ 705 that it will be relatively rare for it to be reasonable for a British citizen child to be expected to leave the UK.”
5. The relevant finding is at paragraphs 31 and 32 of the panel’s decision as follows:
“31. Looking outside the Rules, though it is a moot point whether that is necessary, we have regard to the mandatory requirements of 117A and 117B [of the Nationality, Immigration and Asylum Act 2002]. We note that the appellant’s wife indicated in oral evidence that she was not working and it is clear from the evidence that the Appellant cannot meet the financial requirements and, not being financially independent, is likely accordingly to be a burden on public funds; 117B(3).
32. We have regard to 117B(5) and the fact that the appellant and his wife embarked upon their relationship, married and had a child in the full knowledge that the appellant’s immigration status was precarious and accordingly we can attach little weight to their relationship. The same must be said, in this context, with regard to any private life that the appellant has established.”
6. The panel then went on to find at paragraph 33 that “Overall we are satisfied that having regards to the maintenance of effective immigration control the decision to refuse the appellant leave to remain is proportionate”.
7. The difficulty with this decision (as Ms Brocklesby-Weller very fairly accepted) is that nowhere in the decision is there any reference to what is provided within Section 117B(6) of the 2002 Act, which is as follows:
“117B Article 8: public interest considerations applicable in all cases
…
(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.”
8. Although there is a passing reference to paragraphs EX.1 of Appendix FM to the Immigration Rules, and it is said, at paragraph 28 that “The issue is whether it would be reasonable to expect her [the appellant’s child] to leave the UK” and that “In this context we have regard to the child’s best interests”, the relevant part of paragraph EX.1, which mirrors what is set out within Section 117B(6) is not set out.
9. There is no reference either to the guidance given by the respondent in her Immigration Directorate Instruction on Family Migration, which was then current with regard to the policy which would be adopted in circumstances such as this. Under paragraph 11.2.3 “Will it be unreasonable to expect a British citizen child to leave the UK?”, it is said as follows:
“In such cases it would usually be appropriate to grant leave to the parental primary carer, to enable them to remain in the UK with the child, provided that there is satisfactory evidence of a genuine and subsisting parental relationship. It may, however, be appropriate to refuse to grant leave where the conduct of the parent or primary carer gives rise to considerations of such weight as to justify separation, if the child would otherwise stay with another parent or alternative primary carer in the UK or in the EU. [This is with regard to the Zambrano principle]. The circumstances envisaged could cover amongst others:
Criminality falling below the threshold set out in paragraph 398 of the Immigration Rules;
A very poor immigration history, such as where the person has repeatedly and deliberately breaks the Immigration Rules ….”.
10. Given the finding that the respondent had not established that this appellant had obtained his English language test certificate by fraud (which was the reason why his leave was originally curtailed) the circumstances envisaged within the guidance clearly do not apply, and Ms Brocklesby-Weller did not suggest that they did.
11. The decision in this case was given some four days before the decision of the Court of Appeal in MA (Pakistan) and Others v SSHD [2016] EWCA Civ 705 in which it was stated in terms at paragraph 35 that it had been accepted on behalf of the respondent in ZH (Tanzania) in the House of Lords that “It will be relatively rare for it to be reasonable to expect a child who is a British citizen to leave the UK”.
12. It is in my judgment clear that the panel was obliged to consider properly whether or not (in accordance with both paragraph EX.1 of Appendix FM to the Immigration Rules and also Section 117B(6) of the 2002 Act) it would be reasonable to expect the appellant’s child to leave the UK. Whether or not it would be reasonable would depend to some extent (because this is a proportionality exercise) on the reasons why this appellant was being removed, but the panel of the Tribunal should have had in mind the guidance contained in the IDIs to the effect that unless there was criminal conduct or a very poor immigration history on the part of a parent it would not normally be considered reasonable to expect a British citizen child to leave the United Kingdom. What the panel stated, at paragraph 32, was merely that having regard to paragraph 117B(5) (which is that little weight should be given to a private life established by a person at a time when the person’s immigration history is precarious) “The fact [was] that the appellant and his wife embarked upon a relationship, married and had a child in the full knowledge that the appellant’s immigration status was precarious and accordingly we can attach little weight to their relationship”. The panel continued by saying that “The same must be said, in this context with regard to any private life that the appellant has established”.
13. With regard to the child, this was dealt with perfunctorily at paragraphs 28 and 29 in as follows:
“28. With regard to EX.1(a) the Appellant is the father of a child born 2 June 2016. She is a British citizen. The issue is whether it would be reasonable to expect her to leave the UK. In this context we have regard to the child’s best interests. Following ZH (Tanzania), however, the mere fact that she is a British citizen cannot be regarded as a “trump card”. We must have regard to the level of the child’s integration in the United Kingdom. Manifestly at her tender age she has not embarked upon exercising the rights of UK citizenship. We cannot find that what amounts to the substantive removal of her rights to citizenship is disproportionate as at her age she has not accessed any of the benefits of living in the UK.
29. Furthermore, at her age and having regard to the fact that her parents up until recently lived in Pakistan there is nothing to suggest she will not be able with their support to adapt to life in that country.”
14. Then, at paragraph 30 it is merely stated that “With regard to Sec. 55 it is clearly in the child’s interests to remain part of the family unit even if that means returning to Pakistan”.
15. Ms Brocklesby-Weller very properly does not suggest that this is an adequate consideration of whether or not it would be reasonable for the child to leave. While it might be the case that the child has not yet accessed the benefits of living in the UK she is nonetheless undoubtedly entitled as a British citizen to access those benefits which will include healthcare and education and so on and the question of whether or not it is reasonable to deprive her of the benefits to which she is entitled is a question that has to be determined properly and not on the basis that she cannot miss what she has not so far had.
16. In these circumstances, regard also must be had to the IDIs which express the respondent’s policy and clearly no regard was had to that.
17. It follows that the panel’s failure to have regard to these matters was an error of law and in the circumstances of this case this error was clearly material because it cannot be said that had the panel had regard as it should to these matters the decision had to be the same.
18. Accordingly, the decision will have to be re-made. As it is accepted that the decision of the panel that the respondent had not established that the appellant had exercised fraud in obtaining his English language certificate must stand, it is appropriate that the decision is re-made in the Upper Tribunal having regard to that finding. I invited Ms Brocklesby-Weller to state whether she wish to advance any argument as to why I should not now re-make the decision by allowing the appellant’s appeal to which she responded that she would be in difficulties given the IDIs referred to above and also in light of the judgment given by the Court of Appeal in MA (Pakistan) to which I have referred. In these circumstances, as the appellant cannot now be regarded as somebody who has exercised criminality and he does not have a poor immigration history (let alone a “very poor immigration history” such as is contemplated in the IDIs) realistically there is no proper basis upon which it can be found that it would be reasonable for his British citizen child to leave the UK. Accordingly, I have to have in mind that Parliament has decreed within section 117B(6) that the public interest does not require this appellant’s removal (when considering whether or not he should be permitted to remain under Article 8) where it would not be reasonable to expect his child to leave the United Kingdom. As it cannot in my judgment properly now be argued in light of the IDIs and the decision of the Court of Appeal in MA (Pakistan) that it would be reasonable to require the child to leave the United Kingdom it follows that there is no basis upon which it can be said that the public interest requires the appellant’s removal. In those circumstances any interference with his Article 8 rights which must be occasioned by requiring him to leave the UK cannot be proportionate and his appeal must accordingly be allowed and I so find.

Notice of Decision

I set aside the decision of the panel of the First-tier Tribunal in which the appellant’s appeal had been dismissed and re-make that decision as follows.

The appellant’s appeal is allowed.

No anonymity direction is made.

Signed:

Upper Tribunal Judge Craig Dated: 9 March 2017