Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28330/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Tribunal
Decision & Reasons Promulgated
On 16 February 2017
On 27 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SYMES

Between

AMANDEEP KAUR
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Rashid (counsel for SKR Legal Solicitors)
For the Respondent: Mrs R Pettersen (Presenting Officer)

DECISION AND REASONS
1. This is the appeal of Amandeep Kaur against the decision of the First-tier Tribunal of 15 December 2015 dismissing her appeal against the refusal of her human rights claim on 30 July 2015.
2. The Appellant arrived in the UK on 28 November 2010 as a Tier 4 student and was granted leave to enter until 25 February 2013, which was extended until 30 August 2014; she then made an in-time application for leave as the spouse of a British citizen, Minesh Kantilal Karsanji (born 11 March 1968). They married on 22 January 2015 and had a daughter, Ravneet, born 10 June 2015. That application was refused as, following a marriage interview of 2 July 2015, it was considered that there were material discrepancies in the answers of the Appellant and Sponsor which, considered with the significant disparity in their ages and the speed the marriage was contracted, led to the conclusion that the relationship was a sham.
3. The Appellant lodged an appeal against that decision and was granted permission to appeal by the First-tier Tribunal on 30 June 2016 on the basis that there was no express reference to section 117B(6) of the Nationality Immigration and Asylum Act 2002.
4. The First-tier Tribunal heard oral evidence. It accepted that the couple cohabited with their daughter Ravneet and that it was plausible that they had not discussed their relationship with their families because of issues to which the hostility between their castes gave rise. Having regard to these and other factors, including the fact the couple had a daughter together, it concluded that their relationship was a genuine and subsisting one.
5. Considering the case under the Immigration Rules, the First-tier Tribunal concluded that there were no insurmountable obstacles to the couple relocating to India, given that the Appellant had lived there for most of her life and that her husband was of Indian heritage, spoke Gujarati and Hindi, and had family connections there; and that it would not be unreasonable for them to temporarily separate, having regard to Ravneet's best interests, bearing in mind that these pointed in favour of living with both parents, in order for an entry clearance application to be made to secure the Appellant's return to the UK. Contact could be maintained by modern communication methods and the Appellant's husband would be able to provide the necessary care for Ravneet during the Appellant's absence.
6. Grounds of appeal contended that
a. The question of temporary separation should not have been considered under the Rules as part of the assessment of the reasonableness of Ravneet's relocation to India;
b. The finding that the father could care for Ravneet during the mother's absence failed to take account of his working commitments and the lack of family support that was inevitable bearing in mind the inter-caste hostility that had led to ostracism from their families;
c. The finding that temporary separation of mother from child ignored the evidence which was that Ravneet would necessarily accompany her back to India, which would amount to the de facto expulsion of an EU citizen child from its country of nationality;
d. There was no consideration of the appeal against the benchmark of the public interest set out in section 117B(6) of the Nationality Immigration and Asylum Act 2002.
7. The First-tier Tribunal granted permission to appeal on 30 June 2016, in particular because there was no express reference to section 117B(6).
8. A Rule 24 response argued that the First-tier Tribunal had directed itself appropriately.
Findings and reasons
9. Before me the parties were in agreement that the decision challenged was flawed for a failure to consider the case outside the Rules with reference to the appropriate public policy considerations as set out in section 117B of the 2002 Act. Having reviewed the case with care, I accept that this is an appropriate outcome and, the matter proceeding essentially by consent, I accordingly give my reasons with appropriate brevity.
10. This is an appeal where statutory considerations identified by Parliament as central to the assessment of Article 8 rights were overlooked. There is one paragraph which considers the necessity for consideration of the issues outside the Rules, concluding that no compelling reason for such enquiry was established. That threshold exercise is in fact unnecessary and usually unhelpful, as indicated more than once by the higher courts in recent times. It is clear, however, that in an appeal where the best interests of a young infant is in play, some consideration beyond the parameters of the Rules is likely to be necessary, all the more so when the parties to the relationship are estranged from their own families, removing the case from the run-of-the-mill scenario where family support might be presumed to be available.
11. Although the advocates before me were content to settle the appeal by reference to the decision outside the Rules alone, the grounds of appeal and the Home Office response to them remain before me for adjudication, so I need to consider whether the decision under the Rules was a lawful one. I do not consider that it was, because
a. The reliance on the possibility of a short-term return abroad to apply for entry clearance, which was central to the thinking of the First-tier Tribunal, is not a consideration posited by the Immigration Rules, as shown by the headnote to Chen (IJR) [2015] UKUT 189 (IAC) at (i);
b. The evidence that the Sponsor works and so would find it difficult to care for the baby in the mother's absence (and without family support) was overlooked.
12. I accordingly consider that remittal to the First-tier Tribunal is appropriate for all relevant considerations to be considered afresh.

Judge Symes
Deputy Judge of the Upper Tribunal
Signed: Date: 21 February 2017