Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28204/2014

THE IMMIGRATION ACTS

Heard at Newport
Determination & Reasons Promulgated
On 16 August 2016
On 31 August 2016

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

YOLANDA TESORO
Respondent

Representation:
For the Appellant: Mr I Richards, Home Office Presenting Officer
For the Respondent: Mr L Magsino of Stanford Law Associates

DETERMINATION AND REASONS
1. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal (Judge Y J Jones) allowing the appeal of Yolanda Tesoro (hereafter "the claimant") against a decision of the Secretary of State taken on 26 June 2014 to refuse her further leave to remain as an overseas domestic worker under para 159D of the Immigration Rules (HC 395 as amended).
Background
2. The claimant is a citizen of the Philippines who was born on 25 January 1978. She was granted leave to enter the UK as an overseas domestic worker on 18 January 2014 with leave valid until 28 May 2014. The claimant made an in time application for an extension of that leave under para 159D of the Rules. On 26 June 2014, the Secretary of State refused to extend her leave on that basis.
3. The claimant appealed to the First-tier Tribunal.
The Appeal to the First-tier Tribunal
4. Before Judge Jones, the claimant accepted that she could not succeed under the overseas domestic worker rule, namely para 159D or on any other basis under the Rules. Instead, the claimant relied upon Art 8 and, in particular, her relationship with her partner, Eleazar Orpilla who is a British citizen and was born on 17 April 1974. In addition, at the time of the hearing, the claimant was pregnant with her partner's child. It was accepted at the hearing that when born, their child would be a British citizen.
5. In her determination, Judge Jones - and this is not disputed - correctly approached her decision in accordance with the established case law when considering a claim under Art 8 outside the Rules. She accepted that the claimant enjoyed family life with her partner in the UK since the end of March 2014. Judge Jones accepted that Art 8.1 was engaged if the claimant were removed.
6. Judge Jones went on to consider whether the claimant's removal would be proportionate taking into account the required factors set out in s.117B of the Nationality, Immigration and Asylum Act 2002. At para 38, she accepted that the claimant was a fluent English speaker (s.117B(2)). At para 39 she accepted that the claimant was financially independent (s.117B(3)).
7. At paras 40-41, Judge Jones considered the application of s.117B(6) dealing with the public interest where a person has a genuine and subsisting parental relationship with a qualifying child. In that paragraph, the Judge took into account that, although not yet born, by the time the claimant would be removed her baby would be born and there would be a "genuine and subsisting parental relationship" with that child. Judge Jones said this:
"41. Section 117B(6) states that the public interest does not require a person's removal where the person has a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect the child to leave the United Kingdom. At the present time it must be said that the appellant does not have such a relationship as her baby has not been born. However, bearing in mind that the appellant would not be removed if her appeal failed until after she has given birth because of the imminence of her due date I am able to find that by the time she is removed she will have a genuine and subsisting parental relationship with a qualifying child as defined in Section 117D. It has not been disputed that the child when born will be a British citizen."
8. At paras 42-45, the judge considered the relevant circumstances of the claimant and found that it would be in the best interests of the claimant's child (once born) that the claimant be allowed to remain in the UK and that taking all matters into account the public interest was outweighed by the claimant's circumstances. Judge Jones said this:
"42. I find in the appellant's favour that although there is no independent evidence of her marriage in the Philippines there is no reason not to accept her evidence in respect of her marriage and a 13 year old child in the Philippines. Divorce is not permitted in the Philippines and it is recorded that she is likely to meet with hostility upon return. I find on the balance of probabilities that neither she nor her child would be accepted by the local community if returned to the Philippines. This is a matter which has not been challenged by the respondent.
43. Balancing the public interest against the particular circumstances and indeed the respective family life of her partner and child, I find that the appellant's situation is a non-standard and particular feature not recognised by the Rules and it would be unduly harsh if she were to be removed to the Philippines in consequence of the respondent's decision. The proportionality balance favours the appellant.
44. I find that the public interest of proper immigration control does not outweigh the claimed rights of the appellant in this case. In the particular circumstances of this case I find that the removal of the appellant in consequence of the respondent's decision would involve a disproportionate breach of her Article 8 rights.
45. Section 55 of the Borders, Citizenship and Immigration Act 2009 requires that I consider the best interests of the child. Although the appellant's baby is not yet born, its birth is imminent and I find it is in the best interests of that child who will be a British citizen that the appellant, its mother, be allowed to remain in the UK."
9. As a consequence, Judge Jones allowed the claimant's appeal under Art 8.
The Appeal to the Upper Tribunal
10. The Secretary of State sought permission on a single issue namely that the judge had been wrong to take into account the position of the claimant's child as if she were born when at the date of the hearing the child was still in utero.
11. On 21 January 2016, the First-tier Tribunal (Judge V P McDade) granted the Secretary of State permission on that ground.
12. Thus, the appeal came before me.
13. On behalf of the Secretary of State, Mr Richards submitted that the narrow issue in the appeal was whether the judge had been correct to consider the claimant's circumstances on the basis that her unborn child had in fact been born rather than the circumstances in existence at the date of the hearing. He submitted that in doing so the Judge had erred I law and the decision should be set aside. However, he conceded that in re-making the decision the claimant's appeal should be allowed because there was no challenge to Judge Jones' reasoning leading to her finding that, if the child were born, the claimant's removal would breach Art 8. The claimant's child (a daughter) was now born and, indeed, attended the hearing with the claimant and her partner.
14. On behalf of the claimant, Mr Magsino briefly submitted that there was no error of law but that in any event the appeal should be allowed.
Discussion
15. In my judgment, Judge Jones was wrong to consider the claimant's circumstances on the basis that her daughter had been born when, at the date of hearing before Judge Jones, her child was in utero. The claimant's Art 8 claim had to be determined on the facts as they appertained at the date of the appeal hearing. Whilst a judge may well, in certain circumstances, be able to take into account foreseeable future events such as, for example, an individual's prospects of future employment, the focus remains upon the facts at the date of the hearing. Here, the claimant's child was not born and therefore the impact upon her (and the claimant) by the claimant's removal at the date of hearing was not a matter which the judge could properly take into account.
16. That was an error of law and, as a consequence, her decision to allow the appeal under Art 8 cannot stand and is set aside.
17. As I have already indicated, however, Mr Richards accepted on behalf of the Secretary of State that, given the claimant's child was now born and none of Judge Jones' findings made on the premise that the child was born have been challenged, the proper disposal of the appeal was to allow it under Art 8 of the ECHR.
18. The Judge clearly set out of the claimant's circumstances including the adverse impact upon her and her child if she returned to the Philippines. Given Mr Richards' concession and the absence of any challenge to Judge Jones' findings (including those under s.117B) premised on the birth of the claimant's daughter, I re-make the decision allowing the claimant's appeal under Art 8 on the basis that her removal to the Philippines would be a disproportionate interference with her private and family life protected by Art 8.
Decision
19. For the above reasons, the First-tier Tribunal's decision to allow the claimant's appeal under Art 8 involved the making of an error of law and is set aside.
20. I re-make the decision allowing the claimant's appeal under Art 8.

Signed

A Grubb
Judge of the Upper Tribunal

TO THE RESPONDENT
FEE AWARD

Judge Jones made no fee award as the matters raised by the claimant in her appeal were not known to the Secretary of State at the date of her decision. I agree with that conclusion and reasoning and no fee award is made.

Signed

A Grubb
Judge of the Upper Tribunal
Date 31st August 2016