Tribunal decisions

The decision

IAC-AH-CJ-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29639/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 2nd February 2017
On 9th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

mr LN
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R O’Ryan (Counsel)
For the Respondent: Mr A McVeety (Home Office Presenting Officer)

DECISION AND REASONS
1. The Appellant is a citizen of Senegal born on 14th February 1985. The Appellant entered the United Kingdom using a stolen passport with a stamped work visa enclosed on 25th September 2007. Thereafter the Appellant had an extensive immigration history as set out at paragraph 5 of the Secretary of State’s Notice of Refusal. The last application was made on 25th February 2015. That was met with a removal notice dated July 2015 and the Appellant was given the option to submit any additional grounds. These were made by his legal representatives on 24th July 2015 based on his family and private life. Those grounds were refused by Notice of Refusal dated 14th August 2015.
2. The Appellant lodged Grounds of Appeal and the appeal came before Designated Judge of the First-tier Tribunal McClure sitting at Manchester on 29th July 2016. In a decision and reasons promulgated on 31st August 2016 the Appellant’s appeal was dismissed on asylum, humanitarian protection, and Articles 2 and 3 and 8 of the European Convention of Human Rights. The First-tier Tribunal Judge made an anonymity direction.
3. On 14th September 2016 Grounds of Appeal were lodged to the Upper Tribunal. It was noted (and I take due note of) that in the Appellant’s application of 6th August 2015 the Appellant had sought leave to remain on the basis of his relationship to KH, a British national, whom he married in July 2015, and his role as stepfather to KH’s daughter RH (born on 21st November 2007), aged 8 at date of hearing. The basis of the Appellant’s claim was summarised at paragraph 65 of the First-tier Tribunal Judge’s decision; with reference to Section EX of Appendix FM of the Immigration Rules, it was argued that the Appellant had a subsisting parental relationship with RH, who was British, and it would not be reasonable to expect RH to leave the UK. The judge also referred to Section 117B(6) NIAA 2002.
4. The First-tier Tribunal Judge made findings which included:–
(i) there was evidence that the Appellant plays some active role in RH’s life;
(ii) RH has a bond with the Appellant; and
(iii) the Appellant has day-to-day involvement in taking the child to school and otherwise interplay with RH.
5. Against that historical background it was contended in the Grounds of Appeal:–
(1) that the First-tier Tribunal Judge had misdirected himself in law as to what constitutes a genuine and subsisting parental relationship;
(2) that the judge had failed to apply Section 55 Borders, Citizenship and Immigration Act 2009;
(3) that the judge had made no clear finding as to whether the Appellant was in a genuine or subsisting parental relationship with RH or alternatively, if he finds that he is not, he has not given adequate reasons for such a finding;
(4) that the purported alternative finding to be found at paragraphs 93 to 95 of the decision contained a misdirection in law.
6. On 25th November 2016 Resident First-tier Tribunal Judge Zucker granted permission to appeal. Whilst finding all grounds were arguable the principal ground was:
“That the judge had misdirected himself in considering whether the Appellant had “parental responsibility” (see paragraph 73), as opposed “to a genuine and subsisting parental relationship”. The ground is arguable and the Upper Tribunal is likely to be assisted in its considerations by reference to the guidance R (On the application of RK) v Secretary of State for the Home Department (Section 117B(6); “parental relationship”) IJR [2016] UKUT 00031 (IAC).”
7. On 30th November 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24. The Rule 24 response submitted that the Judge of the First-tier Tribunal directed himself appropriately. The Secretary of State points out that at paragraph 55 of the decision the judge refers to the correct Rule of “genuine and subsisting parental relationship” with the child and submits that although the judge refers to parental responsibility that the findings of fact made by the judge in respect of the relationship between the Appellant and the child is not undermined and thus is not material to the outcome of the decision. Further, the Rule 24 response contends that the findings from paragraphs 72 to 83 were open to the judge and carefully considered the best interests of the child and found that the child could continue to live with her mum and be supported by the natural father (paragraph 82). They conclude by contending that the grounds have no merit and merely disagree with the adverse outcome of the appeal and that the judge considered all the evidence that was available to him and came to a conclusion open to him based on that evidence and the Rules, based on the balance of probability and does not disclose any error.
8. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by his instructed Counsel Mr O’Ryan. Mr O’Ryan is familiar with this matter. He is the author of the Grounds of Appeal. The Secretary of State appears by her Home Office Presenting Officer Mr McVeety.
Case Law
9. I am asked to bear in mind the decision of Upper Tribunal Judge in the case of R (On the application of RK) v Secretary of State for the Home Department (Section 117B(6); “parental relationship”) IJR [2016] UKUT 00031 (IAC). That case is authority for the following:–
“1. It is not necessary for an individual to have ‘parental responsibility’ in law for there to exist a parental relationship.
2. Whether a person who is not a biological parent is in a ‘parental relationship’ with a child for the purposes of s.117B(6) of the Nationality, Immigration and Asylum Act 2002 depends on the individual circumstances and whether the role that individual plays establishes he or she has ‘stepped into the shoes’ of a parent.
3. Applying that approach, apart from the situation of split families where relationships between parents have broken down and an actual or de facto step-parent exists, it will be unusual, but not impossible, for more than 2 individuals to have a ‘parental relationship’ with a child. However, the relationships between a child and professional or voluntary carers or family friends are not ‘parental relationships’.”

Submissions/Discussion
10. Mr O’Ryan takes me to his first Ground of Appeal. He starts by reminding me of the abovementioned authority submitting that the judge has failed to direct himself appropriately in law on the issue of the parental relationship and that the clear distinction made by the Upper Tribunal in RK as to “parental responsibility” and “parental relationship” makes it all the more imperative for the judge to demonstrate that he appreciates the difference between the two concepts. He submits that the judge has failed to do this and consequently errs in law. Further, because this is a “split family” the judge should have appreciated (as set out in paragraph 3 of the headnote of RK) that there would be nothing unusual about three people having a parental relationship with RH (assuming for the purpose of this argument, that the child’s father retains such a relationship).
11. He submits that at paragraphs 73, 75, 78 and 82 the judge purports to consider whether the Appellant has “parental responsibility” for RH and that the relevant consideration under EX1 and Section 117B(6) NIAA 2002 was whether the Appellant has “a genuine and subsisting parental relationship” with RH. He reminds me that parental responsibility is a specifically defined, and different, concept within the Children Act 1989 and was not directly relevant in this appeal. He asked me to give due consideration to the abovementioned paragraphs. Further Mr O’Ryan contends that in purporting to determine whether the Appellant has parental responsibility the judge further misdirects himself at paragraphs 78 and 80 by appearing to exclude the existence of parental responsibility/relationship unless it arises out of necessity, which was found not to exist in the present case. Thus he contends the judge misdirects himself in law. He indicates that looking at the headnote of RK what has to be considered is whether or not the Appellant has a genuine parental relationship with a qualifying child and the direction that the judge gave himself was confused pointing out that the Appellant is not a family friend, he is married to RH’s mother and therefore there should not be anything unreasonable in the Appellant having a relationship with RH.
12. Turning to the other grounds he points out that the judge has failed to take into account the relevant evidence, in particular RH’s own statement (at page A9 of the bundle at paragraph 77), and that the judge does not expand why the child was encouraged to give supporting evidence. He submits that paragraph 77 of the decision is without proper reasoning and that the letter provided by RH is quite compelling. He acknowledges that the letter is written by an 8-year-old but states that if that letter is read properly it could easily be construed as being prepared by an 8-year-old and that the judge has failed to take proper account of that evidence. In the light of these purported errors Mr O’Ryan contends that the judge comes to no clear finding as to whether the Appellant is in a genuine or subsisting parental relationship with RH or indeed in the alternative, if he did, that he has not given adequate reasons for such findings given his confused directions in law. He asked me to give due consideration to paragraph 91 of the decision.
13. As far as the final ground is concerned, namely the purported alternative finding to be made at paragraphs 93 to 95 that if the Appellant does have a genuine family life when determining the proportionality of the Respondent’s decision Mr O’Ryan states that the judge has asked himself the wrong questions. He submits if there is a genuine and subsisting relationship with RH, and it not being reasonable for RH to leave the UK (and he emphasises the judge makes no findings that it would be reasonable) then Section 117B(6) of the NIAA 2002 provides a final answer to the public interest question on the Appellant’s removal and that there is no ambiguity. He does acknowledge however that other factors can be considered and that it is necessary for immigration history to be looked at but that that alone does not make the judge’s reasoning sound. He asked me to set aside the decision and to direct that the appeal be reheard.
14. Mr McVeety concedes that the submission made with regard to paragraph 1 is legally correct but that that does not affect what the judge goes on to find, i.e. whilst it is conceded (and I note and agree with this) that there is an error of law in the judge’s analysis, that error is, it is put to me by Mr McVeety, not material to the outcome of the judge’s decision. He points out that the key word is “genuine”. He emphasises that at length the judge found that the Appellant was not genuine and that the Grounds of Appeal do not challenge the relationship that the Appellant had with his spouse, namely the finding by the judge that that relationship was not genuine. He submits that there must inevitably therefore be an overlap with the relationship the Appellant has with his non-biological child.
15. He takes me to paragraphs 86 to 90 of the decision and the findings made therein at paragraphs 87 to 90 and he also draws my attention to paragraphs 17, 21 and 23 of the history of this matter. He points out that these issues are ones that the judge has raised and that they overlap and that they lead to the judge making a finding that he believes the Appellant is not in a genuine relationship. He points out that it might be genuine so far as the child is concerned but not from the Appellant’s perspective and that the judge has made clear findings based on the Appellant’s previous immigration history and he submits that those are findings that the judge was entitled to make. He asked me to find that there are no material errors of law in the decision and to dismiss the appeal.
The Law
16. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
17. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge’s factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge’s assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
18. I accept the contentions supported by both advocates that the judge has erred in law in his assessment between “parental responsibility” and “parental relationship” and I accept that clear guidance is given on this by the Upper Tribunal in R (On the application of RK). The question arises as to whether or not this is a material error of law. I find that it is not. The reason behind such finding turns on whether or not the judge found the Appellant was in a genuine relationship. It is clear that the judge’s findings set out in some detail at paragraphs 87 to 90 make it clear that the judge not only found that the Appellant was not in a genuine relationship but he has given his reasons setting out why the Appellant was, in his view, cynically manipulating the whole matter in the hope that he would be granted leave on the basis of his relationship with CJE and when it was clear that that was not the basis on which it was going to happen he moved onto another relationship. He has little doubt that KH and her child are committed to the relationship with the Appellant but makes findings at paragraph 91 that he is not satisfied the Appellant is committed to the relationship and sets out his reasons. Those are findings that he was entitled to make.
19. That finding impinges on the main thrust of Mr O’Ryan’s submissions and whilst I acknowledge there are misdirections in law and that the judge may have been asking the wrong questions, his findings are ones that he was entitled to make bearing in mind his conclusions on the genuineness of the relationship.
20. Further I note the point that the judge makes with regard to the alternative finding at paragraphs 93 to 95. I do not disagree with the submission made by Mr O’Ryan and his reliance on Treebhawon & Others (Section 117B(6)) [2015] UKUT 674 (IAC) but that authority only provides assistance to the arguments of the Appellant’s legal representatives if there is a finding that there is a genuine and subsisting relationship. The judge has given clear reasons why he finds that that is not the case. In such circumstances I conclude that there are no material errors of law disclosed in the decision of the First-tier Tribunal Judge and the Appellant’s appeal is dismissed and the decision of the First-tier Tribunal Judge is maintained.

Notice of Decision

The decision of the First-tier Tribunal Judge discloses no material errors of law and the decision of the First-tier Tribunal is maintained and the Appellant’s appeal is dismissed.

Anonymity

The First-tier Tribunal Judge made an anonymity direction. No application is made to vary that order and that anonymity direction remains in place.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris