Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28841/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2nd March 2017
On 14th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

donnette jennifer jackson
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr B Adekoya of Atlantic Solicitors
For the Respondent: Ms A Fijiwala, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant a national of Jamaica appealed to the First-tier Tribunal against a decision of the Secretary of State dated 7th August 2015 to refuse her application for leave to remain on the basis of her private and family life in the UK. First-tier Tribunal Judge Wilsher dismissed the appeal and the Appellant know appeals with permission to this Tribunal.
2. The background to this appeal involved a lengthy immigration history. In summary, the Appellant entered the UK as a visitor on 11th September 2001 and was subsequently granted leave to remain as a student until 31st January 2003. Her subsequent application for leave to remain as a student was refused with no right of appeal as was an application for leave to remain as an unmarried partner. She sought judicial review of that decision but that was refused. On 13th January 2009 the Appellant’s child Dondre Cardoso was born in the UK. The Appellant married the father of the child Nuno Cardoso on 6th February 2009. Her application for an EEA residence card was granted but subsequently revoked after the EEA national Sponsor left the UK. Her appeal against that decision was dismissed and a subsequent appeal to the Upper Tribunal resulted in the Secretary of State reconsidering the application. The Appellant was issued with an EEA residence card until 23rd January 2016 but it too was subsequently revoked on 20th December 2013 as the EEA national Sponsor left the UK in May 2011. An appeal against that decision was allowed by the First-tier Tribunal and permission to appeal to the Upper Tribunal was granted and that resulted in the Secretary of State reconsidering the application but a subsequent appeal against a refusal of that application was dismissed and the appeal became appeal rights exhausted on 20th February 2013. The Appellant again applied for an EEA residence card which was refused and the appeal against that refusal was dismissed and she applied again on 7th January 2015 for an EEA residence card.
3. The decision the subject of this appeal considered the Appellant’s application under Appendix FM as a partner and as a parent but concluded that it would not be unreasonable to expect the Appellant’s child to leave the UK along with the Appellant. The Secretary of State considered the application under paragraph 276ADE and decided that the Appellant failed to satisfy the requirements of paragraph 276ADE(1)(vi) and that the Appellant’s son did not meet the requirements of paragraph 276ADE(1)(iv) because at that stage he had not been in the UK for seven years. The Respondent also considered whether there were exceptional circumstances to lead to a grant of leave to remain in relation to Article 8 and concluded that there were not.
4. In the First-tier Tribunal the judge considered the Appellant’s immigration history in some detail concluding that it is plain that the Appellant has a poor immigration history [9]. The judge concluded that the Appellant could not succeed on her appeal on the basis of her private life and that she had not established that there would be significant obstacles to her reintegration in Jamaica. The judge went on to consider the appeal in terms of family life noting that the Appellant could not obtain leave to remain as a parent because her husband is no longer settled in the UK.
5. Although he did not explicitly say so it appears that the judge then considered the matter under Article 8 because of his consideration of Section 117B of the 2002 Act [11]. The judge acknowledged that he attached “strong weight” to the fact that the child has now completed seven years in the UK and went on to consider the child’s best interests concluding that it would be in the child’s best interests to stay in the UK. The judge noted that the child is at primary school and doing well and the level of education provided in the UK and his life prospects are inevitably higher they would be in Jamaica.
6. The judge then went on to consider whether it is reasonable to expect the child to return to Jamaica with his mother. At paragraph 12 the judge considered the fact that the Appellant’s child speaks English, is in good health and has every prospect of being reintegrated in Jamaican society because he is still young, he has not been growing up in the UK during the crucial period in which a character is formed and friendships and ties deepen and there would be no severe disruption to his private life by returning to Jamaica. The judge noted that the child will have had childhood friends and have some relatives in the UK but that there is no evidence of particularly strong ties with any of these people. The judge attached considerable weight to the fact that the child has completed seven years in the UK from birth but said that there were no other features of this case that are of note.
7. At paragraph 13 the judge set out that he set the mother’s poor immigration history against the findings in relation to the child. The judge took into account the fact the mother has been relying on social services for support whilst making repeated applications and appeals in relation to the Home Office decisions. He noted that the mother’s period of residence in the UK was entirely precarious from the outset and that her claim as a parent of the child is undermined by her immigration history. The judge noted therefore that “although it would be in his best interests to stay, I have concluded that it would not be unreasonable for him to be required to leave because of his mother’s poor immigration history” [13]. The judge went on to say “[the Appellant] cannot meet Section 117B because Dondre is not a qualifying child as it would not be unreasonable to require him to leave the UK given her poor history and the more modest effect upon his private life”. The judge went on to dismiss the Appellant’s appeal and said that the child could be removed as her dependant.
8. The grounds complain that the First-tier Tribunal Judge erred in his consideration of Section 117B by concluding that the Appellant’s child is not a qualified child despite the fact that the child was born in the UK and has lived all his life here. It is contended that the error is compounded by the fact that the First-tier Tribunal Judge was of the opinion that the child’s best interests were served by remaining in the UK and that the assessment of the reasonableness test is therefore flawed.
9. Permission to appeal was granted on the basis that it is arguable that the Tribunal conflated the issue as to whether the child was a ‘qualifying child’ with the entirely separate question as to whether it is reasonable for him to leave the UK and that the reasoning was circular.
10. At the hearing before me Mr Adekoya submitted that the judge considered the reasonableness of leaving the UK in relation to the mother and not in relation to the child. He submitted that is inconsistent that the judge found that it is in the child’s best interest to remain in the UK but went on to conclude that it is not unreasonable to the child to leave the UK because of the mother’s status and immigration history. He said it can be in the best interests of the child to be in the UK but not unreasonable for the child to leave the UK. He submitted that the judge erred in basing the consideration of the reasonableness of the child returning to Jamaica purely on the Appellant’s immigration history.
11. Ms Fijiwala relied on the decision in MA (Pakistan) [2016] EWCA Civ 705 at paragraphs 45, 47, 100 to 101, 49 and 46. She submitted that the court rejected the narrow reasonableness test based on the best interests conclusion submitting that the reasonableness test includes all factors including the mother’s immigration history. She submitted that the judge in this case clearly followed MA (Pakistan). She accepted that in paragraph 45 of MA (Pakistan) seven years’ residence is a factor of some weight in favour of leave to remain being granted but submitted that paragraphs 100 to 101 of MA (Pakistan) makes clear that the parents’ immigration history is relevant.
12. She relied on paragraph 49 of MA (Pakistan) where the court said that the fact that a child has been in the UK for seven years would need to be given significant weight in the proportionality exercise because of its relevance in determining the nature and strength of the child’s best interests and because it establishes the starting point that leave should be granted unless there are powerful reasons to the contrary. She submitted that the judge did this at paragraph 11 of the decision where he noted that strong weight should be attached to the child’s seven years’ residence and assessed the child’s best interests looking at the child’s specific circumstances including the fact that the child is at primary school and doing well and comparing the education system in the UK with that in Jamaica. She referred to paragraph 12 where the judge attaches weight again to the fact that the child has been in he UK for seven years but that the judge was correct in assessing the quality of ties in the UK.
13. She referred to paragraph 46 of MA (Pakistan) which acknowledges that the ties developed in the UK may be less where the children are very young because the focus of their lives will be on their families but the disruption becomes more serious as they get older. She submitted that the judge did take this into account at paragraph 12 noting that the child speaks English, is in good heath and has every prospect of being integrated in Jamaican society and that he had not grown up in the UK during a crucial period in which a character is formed because he is still young.
14. Ms Fijiwala accepted that it was unfortunate that the judge stated at paragraph 13 that the Appellant’s child is not a qualifying child in relation to Section 117B given that he had already considered all relevant issues before that but that the judge was entitled to take into account the factors and had carried out a proper balancing exercise.
15. In response to Mr Adekoya he submitted that in accordance with MA (Pakistan) that leave should be granted unless there are powerful reasons to the contrary and there were no such reasons here. He relied on ZH (Tanzania) and submitted that the child could not be punished for the fault of the parent.

Error of Law
16. I have considered the judge’s decision in the context of MA (Pakistan). The judge’s task in this case was to consider the Immigration Rules applicable and freestanding Article 8 if appropriate. Although the judge does not set out the case the decision in this way I accept that the judge addressed all of the relevant questions to be answered for any part of that assessment. The judge considered paragraph 276ADE at paragraph 11 deciding that the Appellant had not established that she met the requirements of paragraph 276ADE as at the time of the application the child had not reached seven years’ residence. He too could not succeed under paragraph 276ADE.
17. In terms of Appendix FM the judge noted that at paragraph 12 that the Appellant could not stay on the basis of being a parent because her husband is no longer settled in the UK and there appears to have been no evidence before the judge that the Appellant could qualify as a partner as her husband had left the UK.
18. Therefore it is clear that the remainder of the decision is an assessment under freestanding Article 8 and in particular Section 117B(1)(vi) which states 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.”
19. It is clear that the Appellant and the child would be removed from the UK together and there is no evidence before the judge of any other strong family life in the UK therefore any assessment under Article 8 would have addressed the Appellant’s private life and that of the child. In so doing the judge considered the circumstances of the child at paragraph 12 including the fact that he speaks English, is in good health, has every prospect of being integrated into Jamaican society and crucially the child’s age and ties developed and noting that there is no evidence of any particularly strong ties with anyone in the UK and that there were no other features of the case of note.
20. It is therefore clear that, although at paragraph 13 the judge takes account of the weight of the mother’s immigration history, this is not the only factor considered by the judge who considered all of the factors at paragraph 12. In any event Ms Fijiwala is right in terms of her submission about MA (Pakistan) that the factors to be taken into account are the wider factors including the parents’ immigration history.
21. I agree that it is unfortunate that the judge said at paragraph 117B that the child is not a qualifying child failing to appreciate that 117B(6) is a two-stage process. So in fact the first question is whether the child is a qualifying child and the second question is whether or not it would be reasonable to expect the child to leave the UK. So although the judge misstated the issue at paragraph 13 I conclude that this is not material in light of paragraphs 12 and the other assessments at paragraph 13 and the reasons given already as to why it would not be unreasonable to require the child to leave the UK.
22. In these circumstances I am satisfied that there is no material error in the judge’s decision and that the judge was entitled to reach the conclusions he did based on the evidence before him.

Notice of Decision
There is no material error in the First-tier Tribunal Judge’s decision. The First-tier Tribunal Judge’s decision shall stand.
No anonymity direction is made.

Signed Date: 13 March 2017
Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD
As the appeal is dismissed there is no fee award.

Signed Date: 13 March 2017
Deputy Upper Tribunal Judge Grimes