Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30279/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 August 2016
On 3 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

foysol alom
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr C Avery, Home Office Presenting Officer
For the Respondent: Mr J Gajjar of Counsel instructed by M-R Solicitors

DECISION AND REASONS
1. This is an appeal by the Secretary of State against the decision by Judge of the First-tier Tribunal Rayner, whose Decision and Reasons were promulgated on 17 November 2015. The Respondent, to whom I shall refer as the Claimant, is a national of Bangladesh born on 10 April 1979. He first entered the United Kingdom in January 2001 although he is unable to provide any evidence of his entry at that time and essentially he has remained unlawfully since that time. He made a number of applications for leave to remain. The last application including additional grounds and information, was refused with a right of appeal on 9 July 2014. By that time the Claimant had formed a relationship and his partner had given birth to their son K on 17 March 2015. The basis of the Claimant's application was his private life and his relationship with his partner and son, both of whom are British.
2. At the hearing before the First-tier Tribunal Judge, the Claimant and his partner gave evidence and were cross-examined. In his decision, the findings in which run to 24 paragraphs, the Judge gave a very detailed and careful consideration of the Claimant's case. He accepted that the Claimant had arrived on 4 February 2004 in the absence of any evidence that he had arrived earlier than that time but he did not accept that the Claimant had significant personal, cultural or other private life in the United Kingdom, apart from his length of residence. He noted that the Claimant has family in Bangladesh whom he is in contact with. He took into account at [27] that the Claimant's arrival and stay has been unlawful since its inception. He noted that a traditional marriage ceremony had taken place between the Claimant and his partner on 18 November 2013 and at [33] he accepted that the Claimant had established on balance that he is in a genuine and subsisting relationship with his partner who is a British citizen and that the couple now have a child who is a British citizen, they were living together as a family and intended to continue to do so if they were permitted. He also noted at [33] that if the Claimant were required to leave the United Kingdom his partner would visit him and spend time with him in Bangladesh and it would be open to the Claimant to apply for entry as a spouse from Bangladesh. At [34] the Judge found that whilst the Claimant had not indicated any health issues, his partner suffers from diabetes, high cholesterol and high blood pressure. However, he did not accept that her health conditions were a significant bar to her taking appropriate care of their child.
3. The Judge then considered the Claimant's case under the Immigration Rules and also Section 117B of the Nationality, Immigration and Asylum Act 2002. He found at paragraphs [37]-[38] that the Claimant did not qualify under paragraph 276ADE of the Rules nor under Appendix FM because it was conceded the Claimant had not lived with his partner for two years in a relationship akin to marriage.
4. The Judge then at [39-[49] considered Article 8 outside the Rules and he found at [39-[40] that in terms of the Claimant's relationship that this had been formed at a time when his status was unlawful and thus the scales in the proportionality exercise weighed heavily in favour of refusing his appeal. However, at [41] onwards the Judge properly directed himself that he must consider the situation of the Claimant's child and the jurisprudence including ZH (Tanzania) [2011] UKSC 4 and the fact that as Baroness Hale made clear, British nationality is not a trump card in assessing the best interests of a child and also the precariousness of the Claimant's immigration status could not be blamed on his son. The Judge also considered the decision in AJ (India) [2011] EWCA Civ 1191 at [42] and at [44] adopted the Razgar assessment set out in Omatunde (best interests: Zambrano applied - Razgar) Nigeria [2011] UKUT 247 (IAC).
5. He concluded at [48]-[49] that taking into account the Claimant's child's best interests as a British citizen and noting at [49] it was a closely balanced decision, he took into account Section 117B(6) of the 2002 Act and that there is no public interest in requiring a person's removal where that person has a genuine and subsisting relationship with a British citizen child and it would not be reasonable to expect the child to leave the United Kingdom. The Judge proceeded to allow the appeal on that narrow basis.
6. The Secretary of State sought permission to appeal, in time, on 19 November 2015. The grounds of appeal essentially asserted that the Judge had diluted the public interest element of the case by reference to Section 117B(6) of the NIAA 2002 because there was no requirement that the child could be removed and that the family had a choice to continue family life in Bangladesh. It was further submitted that the decision was both confusing and contradictory which rendered it unsafe and that the judge had in fact used the best interests of the child as a trump card which was not in accordance with the decision in ZH (Tanzania) per Baroness Hale.
7. Permission to appeal was granted by Upper Tribunal Judge Pitt on 5 July 2016 on the basis that:
"It is arguable that the decision is contradictory and in error in finding it unreasonable for the child to leave the UK where the First-tier Tribunal Judge also finds that the Appellant's wife has spent extended periods of time in Bangladesh recently and has extensive family links there and where it is based on guidance relevant to EU law rather than Article 8 ECHR."
Hearing
8. At the hearing before me, I heard submissions from Mr Avery in line with the grounds of appeal, where he submitted that the fundamental problem with the decision was that it was full of contradictions and one might have expected the Judge to dismiss the appeal on the basis of his findings of fact. He submitted that the Claimant's immigration history was very poor and the Judge had made a finding to that effect at [48] and that there was a clear error in terms of assessing the reasonableness of the situation, which must be done in the context of the overall situation that prevailed, which includes a poor immigration history. The Judge found there was nothing to prevent the Claimant seeking entry clearance as a spouse and there was no reason why the family could not relocate to Bangladesh as a whole.
9. In his submissions, Mr Gajjar asked me to preserve the findings of the First-tier Tribunal and dismiss the appeal by the Secretary of State. He submitted that the determination grappled with the issues, that there was no material error of law. It was plain from looking at the final paragraphs, 48 and 49, that the Judge did not treat the Claimant's child as a trump card and that the determination was a balanced one. He submitted that the Claimant's account was not accepted at face value. The Judge had not accepted the Claimant's evidence as a whole, i.e. that he had been in the United Kingdom for as long as he said he had. The Judge found the family did have choices and considered the issue of whether they could go back but also took into account the fact that the Claimant's immigration history should not be held against his child in accordance with the jurisprudence. Mr Gajjar submitted that the Secretary of State's appeal was no more than a disagreement with the findings of fact by the First-tier Tribunal Judge that it had been open to him to make.
10. In his reply Mr Avery submitted that [49] was a prime example as to where the Judge has gone wrong, because it is in contradiction with [48] and that this did constitute a material error of law because it was necessary for a party to understand why he had lost. He submitted that paragraph 49 was not sustainable in light of the Judge's other findings.
My findings
11. I announced my decision at the hearing, which was that there was no material error of law in the decision by the First-tier Tribunal Judge, which I uphold. I now give my reasons.
12. As set out above, the Judge gave a very detailed and careful consideration to the issues arsing in this appeal. In essence, this was a proportionality exercise outside the Rules where the very poor immigration history of the Claimant needed to be balanced against the best interests of his British child. I do not consider that the Judge's findings are contradictory but rather that the Judge was endeavouring to set out the arguments both for and against the Claimant. At [48] the Judge stated, "there is little of merit in the appellant's situation even taking account of his family life with his British citizen partner" but the Judge then took account of the best interests of the Claimant's British child and found that removal of the Claimant would deny his child the benefit of a close relationship with him. The Judge then considered what choices the family had and found that the Claimant could go to Bangladesh and make an entry clearance application from there and that his partner and child could accompany him. If there was any short separation, this was unlikely to be damaging to the Claimant's son but at [49] the Judge applied the statutory provision set out in section 117B(6) and the fact that Parliament had stated that there is no public interest in requiring a person's removal where that person has a genuine and subsisting relationship with a British citizen child and it would not be reasonable to expect the child to leave the United Kingdom. It is clear, in my view, that the definition of "leave" in this context envisaged a permanent rather than a temporary departure from the United Kingdom.
13. The Judge further relied on the Home Office Immigration Directorate Instruction on Family Migration, August 2015, which provides as follows: "Where a decision to refuse the application would require a parent or primary carer to return to a country outside of the EU the case must always be assessed on the basis that it would be unreasonable to expect a British citizen child to leave the EU with that parent or primary carer". It was on this basis that the Judge found that the public interest in requiring the Claimant's removal was reduced and thus the Judge found in his favour on this narrow basis.
14. I note that in the grant of permission there is reference to guidance relevance to EU law rather than Article 8 of the European on Human Rights. That regrettably is a misapprehension. The Home Office IDI on Family Migration in respect of the extract cited by the judge at [49] is essentially sets out the principle in Sanade and others (British children - Zambrano - Dereci) [2012] UKUT 00048 (IAC) which is applicable to this case, in that the Secretary of State is not entitled to require a British child to leave the European Union. I find the Judge was entitled to rely on that principle in determining this appeal. I find that the grounds of appeal by the Secretary of State do in truth amount to no more than a disagreement with the Judge's findings of fact which he was entitled to make and I uphold the decision of the First-tier Tribunal Judge.

Notice of Decision
15. The appeal by the Secretary of State is dismissed, with the effect that the decision by First tier Tribunal Judge Rayner to allow the Claimant's appeal is upheld.
No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Chapman