Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29449/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13th February 2017
On 21st February 2017

Before

Upper Tribunal Judge Chalkley

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

U Y
(ANONYMITY DIRECTION made)
Respondent

Representation:
For the Appellant: Mr L Tarlow, a Senior Home Office Presenting Officer
For the Respondent: Mr B Hawkin of Counsel, instructed by Kinas, Solicitors

DECISION AND REASONS

1. In this appeal the Secretary of State is the appellant and to avoid confusion, I shall refer to her as being "the claimant".

2. The respondent was born on 11th March 1985 and is a male citizen of Turkey. On 12th August 2015, a decision was made to refuse the respondent's application for leave to remain in the United Kingdom, on the grounds that his removal would place the United Kingdom in breach with his obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms. At the same time the claimant notified the respondent that he was liable for removal under Section 10 of the Immigration and Asylum Act 1999.

3. The application by the respondent was refused by the claimant because:-

(1) The respondent failed to provide any objective evidence to show that he is in a genuine and subsisting relationship with a partner in the United Kingdom who is a British citizen or who has settled status in the United Kingdom.

(2) While it was accepted that the respondent has a son, who was born in the United Kingdom, who is a British citizen and aged under 18 years, taking into account all the available evidence it was not accepted that the respondent had provided sufficient evidence to demonstrate that he continues to take an active role in his child's upbringing. It was believed to be in the best interests of the child that he should remain with his mother who, on the available evidence, cared for the child entirely on her own. It had been directed by Chelmsford Family Court that it was in the best interests of the respondent's child for the respondent to have indirect contact with his son only which could be maintained from Turkey.

(3) The respondent's application on the basis of family life as a parent was therefore refused.

(4) It was not accepted that the respondent could meet the requirements of Appendix FM and although he had access rights to his son, it is indirect contact which can be maintained from Turkey.

(5) The appellant was not satisfied that the respondent had demonstrated that there would be any significant obstacles to his reintegration into Turkey, since he had spent his formative years there and many years of his adult life. He failed to meet the requirements of paragraph 276ADE(1)(vi).

(6) There being no exceptional circumstances outside the Rules which could lead to the grant of leave the application, was refused. The claimant noted that the respondent suffers from diabetes which is diet-controlled and originally arrived in the United Kingdom on a temporary basis as a student. Leave was extended and then later curtailed due to his non-attendance. His applications under the European Association Agreement were refused. The respondent re-entered the United Kingdom as the spouse of a British citizen, but his leave was subsequently curtailed. Any ties in the United Kingdom were developed whilst he was here on a temporary basis, or when his immigration status was precarious. The appellant concluded that there were no exceptional circumstances or circumstances which would render the respondent's removal from the United Kingdom as unjustifiably harsh.

4. The respondent appealed to the First-tier Tribunal and his appeal was heard by First-tier Tribunal Judge Monaghan at Hatton Cross on 21st July 2016. The judge noted that in February 2014, the respondent first instructed a solicitor concerning proceedings in respect of his son. Following the issue of an application there was a first hearing on 28th August 2014, which was adjourned to a fact-finding hearing which took place on 16th October, 2014. Chelmsford Family Court determined that the most serious allegation of domestic abuse related to an incident in March 2013 where the respondent's wife (and mother of his child) was threatened and insulted. While the respondent was subsequently arrested and released without charge the Chelmsford Family Court found, on the balance of probabilities, that the incident took place and that it was the respondent who carried out the assault. It found that on 14th December 2012 the respondent entered the property, was angry when his son was in a cot in the parents' bedroom, dragged the cot onto the landing saying, "get that bastard child out of my bedroom", or words to that effect. The family court believed the account of the child's mother, despite the respondent's denials. The mother had also alleged direct and indirect communications by text, telephone call or Facebook entries which might amount to harassment by sheer volume, as well as direct threats of violence and/or that their son would be taken to Turkey. The family court believed that the respondent instigated these communications by passing on the mother's telephone number to others. They also believe that the mother had received threats from others that the child would be taken to Turkey.

5. The First-tier Tribunal Judge noted that the respondent had only spent one night at the family home on 22nd November 2012, on his return from Turkey. They found that proceedings for a Child Arrangement Order were issued and designed to delay the immigration process. They believe that the respondent would have had ample opportunity to seek contact with his son or a relationship with the mother, well in advance of March 2014. This finding was made in the light of the evidence that the mother had reported to the Home Office with details of their marriage towards the end of 2013 and, as a result, the respondent's leave was curtailed.

6. On 29th January 2015, the family court made a Child Arrangement Order and a prohibited steps order in respect of the respondent's child. A residence order was made in respect of the mother and she was directed to provide photographs of the child twice a year, together with an email setting out how he is progressing and developing. By agreement, it was ordered that the respondent would have indirect contact consisting of the reading of the contents of or the giving of cards/letters/small gifts every two months to be sent by the respondent to the maternal grandmother and the giving of photographs to him twice a year. Requests for indirect contact by telephone calls were refused, because they were considered to be impractical, given the child's age and the risks to the child and his mother were believed to be too high. It was thought that the child may inadvertently disclose information regarding his home or educational establishment and even with a conference call on speaker phone, inappropriate communication by the father may take place.

7. Evidence was provided from the respondent, in the form of a solicitors' letter and a letter from his general medical practitioner, that he had sought referral to a domestic abuse programme about a week after the court order was made on 29th January, 2015.

8. The judge noted that the appellant had subsequently commenced the domestic abuse programme, having undergone an assessment and that the course was due to conclude on 16th August 2016. She noted that according to an interim report of 18th May 2016, the respondent had attended fourteen sessions and missed none. On 2nd September 2015, the respondent instructed a firm of solicitors to seek a variation of the order of 29th January 2015, and to apply for supervised contact. On 21st April 2016, the respondent attended a mediation meeting in connection with that application and on 31st May 2016, he prepared a witness statement in respect of that application. On the first hearing of the application on 17th June 2016, the proceedings were adjourned and the matter set down for a full hearing on 18th August, 2016. The judge bore in mind RS (immigration/family court liaison: outcome) [2013] UKUT 82 and JA (meaning of "access rights") India [2015] UKUT 225.

9. Having reminded herself of the guidance in RS, she found that the outcome of the ongoing family proceedings for direct supervised contact were likely to be material to the respondent's ongoing immigration status. At paragraph 47 she said:-

"If the family court finds that it is not in [the child's] best interests for there to be any form of direct contact then clearly such indirect contact can be continued from Turkey. If on the other hand they find that supervised contact is appropriate then this must be in the United Kingdom and strengthens the respondent's claim under Article 8. I can find no compelling reason to exclude the respondent irrespective of the outcome of the family proceedings or the best interests of [the child]."

At paragraph 49 of her determination she allowed the respondent's appeal,

"to that limited extent only and I direct that the respondent should grant a period of discretionary leave as per the decision in MS (Ivory Coast) [2007] EWCA Civ 133."

10. Dissatisfied with the decision, the claimant sought and obtained permission to appeal to the Upper Tribunal. The first two challenges are effectively the same and are that the judge failed to recognise that the order of the family court dated 29th January 2015, was a final order. It is an order which remains in place until the child is 18 years of age, or until such time as it is varried. The family proceedings were finally resolved and the mere fact that the respondent has sought to vary the terms does not automatically mean that the proceedings thereby become unresolved again. The third challenge suggests that given the complete prohibition on direct contact it is unclear how the decision to remove the respondent could be an interference of such gravity to engage Article 8 or, whether there is even Article 8 family life between the respondent and his son at all. The judge fails to explain why the respondent could not return to Turkey and apply for entry clearance should the outcome of any future proceedings fall in his favour. Finally the judge failed to take account of the fact that Schedule 9 of the Immigration Act 2014 repealed Section 87(1) of the 2002 Act and the judge had no jurisdiction to make the direction she did to the Secretary of State.

11. At the hearing before me, Mr Hawkin explained that the family case had been heard again in August last year, since the hearing before the First-tier Tribunal Judge but it was adjourned again until May, 2017 for a full hearing. Mr Hawkin agreed to endeavour to take instructions on why the matter had been adjourned. He told me that on 19th August 2016, directions were given by the Chelmsford Family Court and when the case was listed for hearing again on 4th November, the respondent indicated he wished to call evidence and so the matter was adjourned. It appears that neither the respondent nor the child's mother were represented.

12. I heard submissions from Mr Tarlow. He told me that he relied on the grounds and emphasised that the order of the Chelmsford Family Court of 29th January 2015 was a final order. He submitted that there are no outstanding family proceedings relating to the child of the respondent, although he has since made an application for variation which he is entitled to do. However, there is no reason why he could not give instructions to solicitors from Turkey. The variation application was made on 2nd September 2015, despite the fact that the final order was only made on 29th January, 2015. Mr Hawkin responded at some length, submitting that the judge had properly directed himself. He accepted that the judge was not entitled to make the direction he did but, Mr Hawkin said, while this does amount to an error of law it is not a material error. The judge clearly considered and dismissed the suggestion that the respondent has sought to vary the order, in order to promote the relationship between himself and his son, rather than to delay or frustrate his removal. The judge makes that clear finding at paragraph 48 of the determination.

13. I allowed the brief adjournment to enable Mr Hawkin to take instructions from his instructing solicitors. Following a twenty minute adjournment, Mr Hawkin told me that he could provide no further information in respect of the family court proceedings. He asked me to find that there was no material error of law in the determination and to allow the respondent's appeal to the extent that it remained for the Secretary of State to grant a period of leave. The judge very clearly did consider the respondent's motivation. Insofar as the decision in RS is concerned, Mr Hawkin submitted that the variation proceedings were family proceedings and they were outstanding. As a result, the judge had not erred by allowing the respondent's appeal. He drew my attention to the head-note:-

"1. Where a claimant appeals against a decision to deport or remove and there are outstanding family proceedings relating to a child of the claimant, the judge of the Immigration and Asylum Chamber should first consider:

i) Is the outcome of the contemplated family proceedings likely to be material to the immigration decision?

ii) Are there compelling public interest reasons to exclude the claimant from the United Kingdom irrespective of the outcome of the family proceedings or the best interest of the child?
iii) In the case of contact proceedings initiated by an appellant in an immigration appeal, is there any reason to believe that the family proceedings have been instituted to delay or frustrate removal and not to promote the child's welfare?

2. In assessing the above questions, the judge will normally want to consider: the degree of the claimant's previous interest in and contact with the child, the timing of contact proceedings and the commitment with which they have been progressed, when a decision is likely to be reached, what materials (if any) are already available or can be made available to identify pointers to where the child's welfare lies?

3. Having considered these matters the judge will then have to decide:

i) Does the claimant have at least an Article 8 right to remain until the conclusion of the family proceedings?

ii) If so, should the appeal be allowed to a limited extent and a discretionary leave be directed as per the decision on MS (Ivory Coast) [2007] EWCA Civ 133?

iii) Alternatively, is it more appropriate for a short period of an adjournment to be granted to enable the core decision to be made in the family proceedings?

iv) Is it likely that the family court would be assisted by a view on the present state of knowledge of whether the appellant would be allowed to remain in the event that the outcome of the family proceedings is the maintenance of family contact between him or her and a child resident here?"

14. I reserved my decision.

15. The Chelmsford Family Court found, in January 2015, that the respondent's issue of proceedings for a Child Arrangement Order were designed to delay the immigration process. They believe that the respondent would have had ample opportunity to seek contact with his son or a relationship with the mother well in advance of March 2014. The First-tier Tribunal Judge was entitled to find on the evidence before him that the respondent had sought to vary the order, in order to promote the relationship between himself and his child further, rather than to delay or frustrate his removal. Since the hearing before the First-tier Tribunal in July 2016, there appear to have been two further hearings in the Chelmsford Family Court in respect of an application for variation which was originally made in September 2015. It now appears that a final order will be made at a hearing in May 2017.

16. I was not been made aware of any change in the relationship between the respondent, his child and his child's mother. Had the respondent and the child's mother become reconciled I would have expected to have been told. A residence order was made in January 2015, in favour of the mother and at that time a prohibited steps order was made.

17. I am only too well aware that I must not pre-empt what the family court might do at the hearing in May and I shall not do so.

18. I believe that the order of the Chelmsford Family Court of 29th January 2015, was a final order. At that stage, the proceedings in question ceased. The court order remains in force until the child is 18 years of age, or until the court order is varied. The respondent applied for a variation some eight months after the final order was made. The variation application will not be disposed of until May 2017, some twenty months after the application was made.

19. I believe that the judge has materially erred in law in the determination. I believe that the judge was wrong in finding that it would be disproportionate for the appellant to leave the United Kingdom until the conclusion of his variation application. A final order has been made by the family court. He can make variation applications at any time up to the child's 18th birthday but, with respect, such applications can be made from Turkey. Should he be successful on any of his applications then he can of course apply for leave to enter the United Kingdom for the purpose of a visit. If a Family Court felt that such visits were in the best interests of the appellant's child, then when considering the appellant's application for a visit visa, the claimant would have to take that into account. I do not accept that a negative result of such visa applications is a forgone conclusion.

20. The making of a direction by the judge was an error of law. I can quite understand why he made it, of course, because he was influenced by what the Tribunal had said in RS. Nonetheless, it was not a material error since it had no bearing on the outcome of the appeal. I set aside the judge's decision and substitute it with mine. I find that there is nothing about the respondent or his circumstances which could properly lead the Secretary of State to grant him a period of leave outside the Immigration Rules.

21. I do not believe it is necessary for me to consider the respondent's Article 8 rights outside the Rules, but were it necessary for me to do so I would have found that the respondent's removal would not be a disproportionate interference with the appellant's family life or private life given that it has the legitimate aims of being in pursuit of the economic wellbeing of the country and for the prevention of crime. I believe there to be no good reason at all why the respondent should not continue with his existing indirect contact from Turkey and why he should not pursue his variation application from Turkey also. It is not only possible, but also comparatively common for evidence to be given in court proceedings from the United Kingdom via video link from abroad.

Summary

22. I find that the judge did materially err in law in his determination and I substitute my decision for his. The respondent's appeal is dismissed.

Notice of Decision

The appeal by the respondent is dismissed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the respondent is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the respondent and to the claimant. Failure to comply with this direction could lead to contempt of court proceedings.

Richard Chalkley
A Judge of the Upper Tribunal.

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Richard Chalkley
A Judge of the Upper Tribunal.