Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/29788/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 March 2016 & 30 June 2016
On 05 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

Secretary of State for the Home Department
Appellant
and

ATO
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Ms S Isherwood, Home Office Presenting Officer
Mr S Walker, Home Office Presenting Officer (30 June 2016)
For the Respondent: Mr J Khalid of Counsel

DECISION AND REASONS

1. This is an appeal by the respondent against a decision of the First-tier Tribunal (Judge Jessica Pacey) allowing an appeal by the applicant against the respondent's decision dated 2 July 2014 to curtail his discretionary leave to remain. In this decision I will refer to the parties as they were before the First-tier Tribunal, the applicant as the appellant and the Secretary of State as the respondent.

Background

2. The appellant is a citizen of Nigeria born on 24 December 1987. He arrived in the UK, aged 12, as a visitor, and has remained since then. On 5 September 2011 he was granted discretionary leave to remain as the spouse of VN and they have a son (I) born on 22 January 2010. On 2 June 2014 the respondent decided to curtail the appellant's discretionary leave as he had ceased to meet the requirements of a concession under which leave to remain was granted. The circumstances justifying the grant of leave to remain outside the Immigration Rules no longer applied in the light of information that the marriage was no longer subsisting and the parties no longer lived together.

3. The appellant appealed against this decision and the hearing initially set for 18 November 2014 was adjourned to provide full details of the Family Court proceedings which were pending in relation to his son.

4. Those proceedings were concluded by an order made in the Family Court on 9 and 10 February 2015. The live applications before the court concerned the appellant's application for an order for direct contact with I and his mother's application to change I's surname. The Court ordered that their son should live with his mother and that he should not spend any time with the respondent in terms of face-to-face contact but his father should write letters and cards and send any gifts that he wished to send, such contact not being on set days but on average once a month. Arrangements were made for the communications to be sent through the paternal grandparents' home. In recitals to the order at (c), the Family Court recorded the following:

"(c) And upon the Court indicating to the Respondent father that in the event an application for direct contact is to be made by him, the Court would hope and expect to see progress with regards to: his understanding surrounding the impact of domestic violence/abuse upon the victim of the same as well as clarification to the father's immigration status and ability to remain in this country."

The Hearing before the First-tier Tribunal

5. At the hearing before the judge the appellant said that his discretionary leave was not given on the basis of his marriage to VN to whom he was not legally married but because he had grown up in the UK for fourteen years. He also set out in his witness statement that his partner would be violent towards him and he described the deterioration in their relationship during 2010 and 2011. They broke up two months after the grant of his limited leave to remain. He had spent time with his son but his wife had refused to allow him to take him to Nigeria to visit his paternal family at the end of 2011. He explained how he had not initially been able to obtain legal representation for the family proceedings. He had taken a parenting course beginning in October 2013, taking three modules out of nine, but could not complete it because he had been made homeless after losing his job. He had not received the curtailment letter and he wanted to be a role model in I's life.

6. In a further witness statement the appellant said that he had attended the DVPP programme and received a good report. The agreement had been that once he had done this, face-to-face contact should start but CAFCASS had refused recommending that he attended a further programme called the "Caring Dads" programme but this required contact with his son first as there were activities they had to complete together.

7. A skeleton argument was produced at the hearing stating the appellant was now in a genuine and subsisting relationship with a UK citizen. It was further stated that the Family Court proceedings had been ongoing for some time, one reason being that the Court had been waiting for the appellant's immigration status to be settled. The appellant was currently directed to send letters, photographs and cards to his son. The Family Court had stated that for it to consider direct contact, it had to have clarification of the appellant's immigration status and ability to remain in the UK. It would not be in the child's best interests if direct contact were to begin and then stop suddenly if the appellant were required to leave the UK. The appellant had now found a job and a home and was able to offer a stable environment. It was further argued that the CAFCASS report was biased towards VM and that the appellant's words had been misinterpreted.

8. In oral submissions it was argued on behalf of the respondent that the final court order had stated that the appellant should not have face to face contact with his son and that contact by means of letters could be carried out from outside the UK. The CAFCASS Report had highlighted concerns about assaults the appellant had admitted and about social media images. It was argued on behalf of the appellant that he had been in the UK since the age of 12. He had a British, not a Nigerian accent. He had done all he could to maintain contact with his son and that the writer of the CAFCASS Report had been very negative and had ignored positive reviews of the appellant, who had acknowledged his previous violent behaviour which he regretted and had successfully completed the DVPP programme. He had not been legally represented when the final court order had been made. He would be able to have the order reviewed in the light of fresh evidence and the Family Court had required clarification of his immigration status.

9. It was accepted that the appellant could not meet the requirements of the Immigration Rules as a parent. He did not have direct access to his son (E-LTRPT.2.4(a)(ii) or sole responsibility for him and the appeal therefore proceeded under article 8 outside the rules. At para [26] the judge held that the appellant had a minor son who was a British citizen, living with a British citizen mother, and given that it was generally accepted that, absent any countervailing factors, it was preferable for children to have contact with both parents, there were circumstances of such a nature that she could consider the appeal outside the rules. She found that the appellant had family life with his son, that the respondent's decision would have consequences of such gravity as to engage the operation of article 8 as contact even by post would of necessity be less easy if the appellant were living in Nigeria and his son would be aware that his father had moved from living close by to living thousands of miles away. She accepted that the interference was in accordance with the law and was made for a legitimate aim. The issue for her to assess was proportionality.

10. The judge took into account the fact that the appellant clearly had a poor immigration history but he was only 12 when he came and hence a minor and would have been required to live where the adults in his life chose that he should live. She considered the issues relating to his son. She found that the appellant had accepted responsibility for his past behaviour and was trying to re-build his life with his son and wanted to be a role model for him. He did not want his son growing up thinking that absentee fathers were the norm and acceptable. She took into account the fact that the Family Court had at present ruled that there should be no face-to-face contact and it was arguable that such contact as permitted could be maintained from Nigeria. She also noted the wording in the final order that the court would hope and expect to see clarification of the appellant's immigration status and ability to remain in this country. It was her view that this wording indicated that the door would be open for the order to be revisited if the appellant's appeal were allowed and that, had the Family Court been of the opinion that under no circumstances should the appellant have face-to-face contact with his son, his immigration status and geographical location would have been immaterial.

11. The judge set out concerns about the CAFCASS Report, noting that the first report had referred to the child as "Nicholas" which was not his correct name and this raised a question mark as to whether the writer was confusing two children. Concern had been expressed that there was a risk of emotional and physical harm should his son spend time with his father but nowhere was there any indication that the appellant had harmed, or attempted to harm, him. She commented that there was a wholly unrealistic proposal from CAFCASS that the appellant attend the "Caring Dads" programme which was a recommendation made without due consideration as it was impossible for him to undertake it as it required the joint involvement of father and son. She noted that I's mother was white British and that it would be his father who must reasonably give him an understanding of his Nigerian heritage and a sense of his Nigerian identity. She noted that the appellant's present partner said that she would be happy for any future children she had to be fathered by the appellant and that this was a significant statement given the apparent concerns that had been raised in the CAFCASS Report over a possibly physical risk to I from the appellant.

12. The judge noted that there was no suggestion that the appellant go to Nigeria with his father who was not arguing that that should be the case. The judge said that in her view it was in the best interests of the child that his father should also be in the UK. She considered the authority of RS (immigration and family court proceedings) India [2012] UKUT 218 on whether the outcome of contemplated family proceedings was likely to be material to the immigration decision but this was not relevant as the Family Court had indicated the matter was the other way round, that it was the outcome of the appellant's immigration appeal that was likely to be material to the Family Court's deliberations. For these reasons the judge found that there were no compelling public interest reasons to exclude the appellant from the UK and there was no basis for allowing the appeal only to a limited extent. She found that it would not be reasonable to expect the appellant to leave the UK and his appeal was accordingly allowed on article 8 grounds.

Grounds and Submissions

13. In the grounds of appeal it is argued that the judge erred in law by going behind the findings of experts in relation to the child's welfare. It was not for an immigration judge in effect to conduct a re-hearing of the appellant's case where the issues had been decided in the Family Court. The judge in the Family Court had taken a balanced view in respect of the family proceedings whereas the judge had identified and made findings on the perceived failings of the CAFCASS Report while not considering any of the negative factors identified in that report. The report had made worrying comments about drug use and domestic violence but none of these factors appeared anywhere in the judge's findings. Further, the judge had failed to identify what family life, existing between a parent who only had indirect contact to a child, could not be continued out of country. Whilst the judge had referred to s.117 of the Nationality, Immigration and Asylum Act 2002, she had failed to take into account the public interest in respect of immigration control.

14. Ms Isherwood adopted these grounds in her submissions. She questioned how the judge could find that there was family life as the appellant had not seen his son since 2011. It had not been for her to criticise the CAFCASS Report as she had. The fact was that indirect contact could continue from Nigeria. Whilst it was true that any order could be re-visited, the Family Courts' main concern had not been clarification of the father's immigration status but an expectation of seeing progress with regard to his understanding of the impact of domestic violence/abuse upon the victim.

15. Mr Khalid submitted that the judge had been fully entitled to find that there was family life between the appellant and his son and, while the respondent may be unhappy with the judge's proportionality assessment, the fact was she had found the appellant to be a credible witness. She had reached a decision properly open to her on the evidence. The judge had been entitled to comment on concerns about the CAFCASS Report but had not sought to go behind it. She had taken into account the appellant's poor immigration history and her approach did not disclose any material error of law. She had applied the Razgar principles and must have taken into account the public interest. She was entitled to take the view that direct contact may become a possibility and that that option should not be prevented by the appellant's removal to Nigeria.

Consideration of whether the First-tier Tribunal erred in law

16. The issue for me at this stage of the hearing is whether the First-tier Tribunal erred in law such that its decision should be set aside. I am satisfied that the judge did so err for a number of reasons. The first is that it was accepted that the appellant could not meet the requirements of the Immigration Rules primarily because he did not have direct access with his son [26]. The judge said that she could and should consider the appeal under article 8 because absent any countervailing factors it was preferable for children to have contact with both parents. However, true as this is, the fact remains that the appellant, following a final order in the Family Court in February 2015, did not have direct contact but only indirect contact. This meant that he was not able to bring himself within the provisions of the rules and it is clear following the amendments to the rules in 2012 that article 8 is to be considered in the light of the rules and in particular the provisions of the rules are to be taken into account as part of the public interest. This the judge failed to do.

17. At the hearing before me it was questioned how the judge could find that there was family life in the present circumstances but I do not accept that submission. The appellant has indirect contact with his son and the judge accepted that he maintained an interest and concern for him. In these circumstances, whatever his previous faults may have been, it does not mean that he did not have family life with his son.

18. When assessing proportionality the judge was critical of a number of aspects of the CAFCASS Report. When the first CAFCASS Report is read as a whole it is clear that the reference to the child as "Nicholas" was a typing error. He is correctly identified in the rest of the report and it is quite clear that there is no question of confusion in the writer's mind as the judge suggests at [41]. The judge was also critical of the second report where the writer stated that there was a risk of emotional and physical harm to I should he spend any time with his father and that there had been no indication that the appellant had harmed or attempted to harm his son. She commented on what she described as the wholly unrealistic proposal that the appellant attend the "Caring Dads" programme. Whatever the merits or otherwise of these concerns, it was for the family judge to decide what weight to attach to the CAFCASS reports and to decide what order should be made. Criticisms of the CAFCASS reports made on the basis of only hearing from one side concerned were irrelevant to the assessment of proportionality.

19. At present the appellant has indirect contact to his son, not direct contact. The judge was concerned and, in some ways understandably so, about whether he would be deprived of an opportunity of making a further application for direct contact if removed to Nigeria. An application can be made from abroad although that will bring its own difficulties. The judge attached weight to recital (c) in the order where the Family Court indicated that in the event of an application for direct contact the court would seek clarification of his immigration status and ability to remain in this country but that was not the only part of that recital, which starts by the Court saying that it would hope and expect to see progress with regard to his understanding surrounding the impact of domestic violence/abuse upon its victim. The judge said at [38] that it was rational that the Family Court did not wish I to be able to see his father face-to-face only to have him withdraw from his life because of an obligation to return to Nigeria. However, there is no indication of that issue weighing with the Family Court and there is nothing in the other recitals to indicate that the appellant's immigration status had a material bearing on the outcome of the appeal as opposed to the previous level of violence exhibited by the appellant to I's mother. There is also nothing in the court order to indicate that the appellant's location seven miles away from his son had any bearing on the outcome of the issues before the Family Court.

20. I am, therefore, satisfied that the comment relied upon about the Family Court hoping and expecting to see clarification of the appellant's immigration status has been taken out of context and without consideration of the other matters the Court said it wished to see addressed. When carrying out the exercise of balancing the public interest with the impact of removal on the appellant and other family members, I am not satisfied that the judge gave proper weight to the public interest in maintaining proper immigration control. The judge reminded herself of s.117B(6) but fails to explain why the indirect contact is such that it would not be reasonable to expect the appellant to leave the UK. The public interest factors have not been properly taken into account.

21. For these reasons I am satisfied that the judge erred in law such that the decision should be set aside. As indicated at the hearing, if I found that there was an error of law, I would set the matter down for a directions hearing to hear submissions on how the appeal should proceed. Further directions were given at the hearing on 4 May 2016 and the appellant has filed a further witness statement and a statement from his former partner, AS, both statements dated 6 June 2016.

Further Evidence of the Appellant

22. The appellant adopted his witness statement of 6 June 2006. He confirmed that he continues to have indirect contact with his son by post. He sends letters, pictures and gifts to him twice a month. He added that his son has made him very proud by becoming an ambassador for his year group at school. He feels that I's mother is not consistently sending things from their son but is waiting a whole month to do so, sending a picture and a very short letter and only giving limited information. His statement then deals with part of the history before the Family Court hearing which has little if any bearing on the current issue. He explained that he had attended the DVPP course for a year. That took place a significant distance from where he lived but he did it because he wanted to see his son. He had looked into doing more courses but they were oversubscribed. He feels it is important that his son has him in his life as a positive role model and he fears losing the opportunity of being that. He also fears that if he has to return to Nigeria, I's mother will not let I write to him or pass on his letters and pictures.

23. In his oral evidence he said that contact was going positively for indirect contact and he produced some of the pictures that he had received. He accepted that I's mother had had concerns about the risks of abduction but this arose from a misunderstanding and he had never had any intention of taking I away from her. He had completed the DVPP course and said that he had learnt that his actions could affect everyone. He had been stressed and had taken it out on the wrong person. He had now learnt to walk away and this has helped him with his last two relationships. He explained that his current partner had not been able to attend the hearing. She had wanted to come but was unable to do so because of work commitments. He explained that he had changed his employment in October 2015 but was still working. It meant a lot to him to be able to see his son on a regular basis and he believed his son was worth every cent. He accepted that he needed to be able to show his former partner that he had improved and that he had not yet attempted to apply for a new child arrangements order.

24. Mr Walker referred to in his submissions to Mohammed (Family Court proceedings - outcome) [2014] UKUT 419 and in particular to [23]-[24] about the changes to the procedure in family cases designed to produce a final hearing. There had been a full hearing in the Family Court and the judge had ordered that the appellant should not have face-to-face contact with his son. He could return to Nigeria and contact could continue in the same way. It would be open to him to apply for entry clearance to take court proceedings, if appropriate.

25. Mr Khalid submitted that it was common ground that family life existed between the appellant and his son. Proper weight should be given to the best interests of I in accordance with the guidelines given by the Supreme Court in ZH (Tanzania) [2011] UKSC 4. It would be wrong to draw a hard and fast distinction between direct and indirect contact. The appellant was sending gifts and clothes to his son and adhering to the terms of the court order. He argued that the Family Court had laid a foundation for the appellant to apply for direct contact by saying that in the event of such an application it would hope and expect to see progress with regard to the appellant understanding about the impact of domestic violence/abuse on the victim as well as clarification of his immigration status and ability to remain in the country. He argued that there would be a risk of emotional harm if the appellant had to return to Nigeria and was unable to send gifts on a regular basis because of the inadequate postal service and the risk of items going astray.

Re-making the Decision

26. I drew the parties' attention to the decision of the Upper Tribunal in Treebhawon & Others (Section 117B(6)) [2015] UKUT 674 in which the Tribunal said as follows:

"20. In section 117B(6), Parliament has prescribed three conditions, namely:
(a) if the person concerned is not liable to deportation;
(b) such a person has a genuine and subsisting parental relationship with a qualifying child, namely a person who is under the age of 18 and is a British citizen or has lived in the United Kingdom for a continuous period of seven years or more; and
(c) it would not be reasonable to expect a qualifying child to leave the United Kingdom.
Within this discrete regime, the statute proclaims unequivocally that where these three conditions are satisfied the public interest does not require the removal of the parent from the United Kingdom. Ambiguity, there is none."
27. There is no doubt that conditions (a) and (c) are fulfilled. The appellant is liable to removal, not deportation. It would not be reasonable to expect I to leave the UK in the light of the fact that he lives with his mother. The remaining issue is whether the appellant has a genuine and subsisting parental relationship. I have been referred to Mohammed and take into account the point that following reforms to the procedures in the Family Court there is an emphasis on reaching a final decision and avoiding repeated hearings in the hope of producing a different result. I note that any parent who now makes an application for a court order with respect to their child will not be allowed to proceed with the application unless they have attended a mediation, information and assessment meeting. However, it is worth noting that the facts in Mohammed were very different in that the appellant was subject to deportation, the child in question was in care and the Tribunal rejected an argument that the Family Court had left open the question of taking a different view regarding direct contact dependent on the outcome of the appellant's immigration appeal.
28. That said, each case needs to be decided on its own facts and in the light of Treebhawon & Others, the core issue is whether the appellant has a genuine, subsisting parental relationship with his son. There is nothing to indicate that that must, of necessity, involve either living with a parent or having direct contact. The appellant has family life with his son, at least within article 8(1). Whilst the Family Court found that direct contact was not appropriate at the present time, it is clear that the Court emphasised the importance of I's continued relationship with his father in recital (e) in which the applicant's mother confirmed that she would ensure that I had a "daddy box", that he was encouraged to look at his memory box on a regular basis and that I maintained a positive image of his father and that she would not speak negatively about him or allow others to do so in his presence or within his earshot and would share appropriate letters, cards, gifts and photographs from the appellant in a positive way and provide encouragement to I to respond to them. Further, she confirmed she would provide the appellant with copies of I's school reports, photographs and by annual update of his likes and dislikes and further information to assist the appellant with indirect contact.
29. There have been submissions on recital (c) about what inferences could be drawn from the judge's comments that, in the event of an application for direct contact being made, the court would expect to see progress with regard to the appellant's understanding of the impact of domestic violence as well as clarification of his immigration status. I interpret this as essentially a neutral comment by the court, neither encouraging nor discouraging a further application, which in any event would need to be dealt with on its own merits if, and when, made.
30. On the evidence before me, I accept that the appellant has written letters and sent gifts in accordance with the court order. In his oral evidence he expressed his hopes that he might have direct contact with his son and said that he had more understanding of the consequences of domestic violence and how it could be avoided. Looking at the evidence in the round, I accept that the appellant does have a genuine and subsisting relationship with his son even though it is maintained through indirect contact. In these circumstances he meets the conditions set out in s117B(6) and it follows that the public interest does not require his removal from the UK.
31. I agree with the way the judge put it in the First-tier Tribunal at [49] that "the appellant has by his continued and regular postal contact with I, and its nature, as much of a genuine and subsisting parental relationship with him as the Family Court currently allows." As is now apparent, the decision in Treebhawon that s117B(6) stands by itself and is not simply one of a number of factors in s117B has answered the concerns I had about whether all the relevant public interest factors had been properly taken into account. Had I been reminded of that decision at the error of law hearing, in all likelihood I would have found that any errors made by the judge were not material to the outcome of the appeal but, having set the decision aside and considered the merits for myself, I agree with the judge and I am satisfied that the appeal should be allowed.
Decision
32. I re-make the decision by allowing the appeal by the appellant on human rights grounds. The anonymity order made by the First-tier Tribunal remains in force until further order.

Signed H J E Latter Date: 2 August 2016

Deputy Upper Tribunal Judge Latter