Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/38415/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision sent to parties on
On 14 June 2016
On 2 August 2016

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

SAmeer ahmed khan

(no anonymity order made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr R Ahmed, Counsel, instructed by Marks & Marks Solicitors
For the Respondent: Mr T Melvin, a Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is the decision in the appeal of Mr Samir Ahmed Khan IA/38415/2014 who appeals with permission against the decision of the First-tier Tribunal dismissing his appeal against the respondent's decision to refuse him leave to remain as the spouse of a person present and settled in the United Kingdom. The respondent refused the application on 12 September 2014 and the appellant applied to the First-tier Tribunal by way of appeal against that decision.
2. The relevant chronology in relation to this appeal is as follows. The applicant was born in Pakistan in June 1988 and came to the United Kingdom as a student in September 2010. In July 2011 he married a British citizen who became pregnant almost immediately with his daughter.
3. On 1 March 2012 he was granted leave to remain for two years as her spouse to expire on 1 March 2014. A daughter was born to the couple on 1 April 2012 and she is a British citizen. However, by the end of May 2012 the marriage had broken down and the parties had separated at least partly on grounds of domestic violence. I have not seen a copy of the divorce petition.
4. In April or May 2014 divorce proceedings were begun on the basis of two years' separation and consent but on 27 February 2014 the appellant had made an application for indefinite leave to remain as the spouse of a person present and settled in the United Kingdom. He would have known at that point that the parties were estranged but the divorce proceedings had not yet begun.
5. In September or October 2014 his contact with his daughter ceased due to a breakdown in relations between the former couple. It is not clear what level of contact had been occurring before that because there was simply no evidence before the First-tier Tribunal and is no evidence before me which gives any assistance in that respect.
6. In December 2014, the appellant was divorced from his wife by way of decree absolute and the hearing in the First-tier Tribunal was set for 28 April 2015. It appears that just five days before the hearing the appellant purported to make an application to the Family Court at Manchester and there is in the file before me an order made by the Family Court on 27 April 2015 the day before the resumed hearing, setting a first hearing dispute resolution appointment for 16 June 2015 and indicating that CAFCASS should send a safeguarding letter in respect of the parties intent, within seventeen days of receipt of the order.
7. There is also in the file a sealed copy of the order which was before the First-tier Tribunal, the operative part of which is:
"My ex-partner do not allow me to see my daughter. I have previously applied for contact of my daughter in 2014 which I then decided to withdraw because my ex-partner assured me that she will settle the contact agreement outside the court. I contacted the mediation office in Manchester before making my first application and attended a meeting arranged by them. They contacted my ex-partner but she did not attend. They then advised me that I should apply to the court for contact which I did. I do not want to involve mediation again as it will delay the process. I have last seen my daughter in [left blank]. I have been making efforts since the withdrawal of my application in 2014 to contact my daughter. My ex-partner agrees sometimes and then changes her mind. I am sick of this situation and want to see my daughter."
8. There are also materials relating to the subsequent proceedings which were submitted under cover of a letter of 2 June 2015 from Marks & Marks and it appears that the sealed order was not before the First-tier Tribunal when this appeal was considered. However, the judge treated the application as having been made and directed himself by reference to Mohammed (Family Court proceedings outcome) [2014] UKUT 419 (IAC).
9. There is an error at paragraph 18 of the decision in the citation of the head note which should have read "Whilst it may be that in the Family Court jurisdiction prior to the coming into force on 22 April 2014 of the Children and Families Act 2014 there was always the possibility of a parent making a fresh application relating to contact."
10. There is nothing in the guidance given in RS (Immigration and Family Court) India [2012] UKUT 218 (IAC) which was approved by the Court of Appeal in Mohan v Secretary of State for the Home Department [2012] EWCA Civ 1363 that supports the notion that the mere possibility of such an application being made or pursued is as relevant criterion in the case of an immigration appeal when deciding whether to adjourn an appeal or direct a grant of discretionary leave in order for such proceedings to be pursued. The guidance is concerned with whether there is a realistic prospect of the Family Court making a decision that will have a material impact on the relationship between a child and the parent facing immigration measures such as deportation. The final sentence is the ratio of the decision and that is correctly quoted.
11. The First-tier Tribunal Judge at paragraphs 19 to 25 of his decision considered that there was no independent evidence in support of the previous settled application for contact or indeed of any or any significant contact between the appellant and his child since the breakdown of their relationship between the appellant and the child's mother two months after the child was born.
12. At paragraph 20 the Judge noted that the burden of proof was on the appellant who had not produced any documents to support his claim that there had been past contact and he considered and rejected the possibility of directing discretionary leave. He did not in terms consider whether to adjourn the appeal but it is plain that he had before him the test in Mohammed which requires him to consider whether to adjourn and/or whether to direct a grant of discretionary leave.
13. At paragraphs 21 to 25 the Judge found as a fact that he did not believe the appellant's evidence that there had been contact with the child and therefore that the appellant could not bring himself within paragraph E-LTRPT 2.4 and EX.1; could not meet the requirements of paragraph 276ADE because he had been in the United Kingdom for a relatively short time and there were no significant obstacles preventing his return to Pakistan; that there were no exceptional circumstances making it unduly harsh for him to be removed even having regard to the fact that the child was a British citizen and a qualifying child under paragraph 117B(6) because the appellant had not satisfied the judge that he had a genuine relationship with his child or that such a relationship was subsisting. He had not satisfied the court that he had any contact with the child at all.
14. Regarding the appellant's family and private life in the United Kingdom, the judge considered the decision of the respondent to be in accordance with the law and in the public interest having regard to Section 47 of the 2006 Act.
Grounds of appeal
15. The basis of the appeal to the Upper Tribunal is first, that the judge erred in not expressly considering whether to adjourn to await the outcome of the Family Court proceedings and, secondly, if I understand it correctly, that there was a reasonable prospect of contact being resumed as a result of the proceedings. I bear in mind that this is an appeal against refusal of indefinite leave to remain as a spouse and therefore that if this application were to be made again, as the appellant is not a spouse, it would have no prospect of success on that basis.
16. The grounds for permission to the Upper Tribunal say at paragraphs 10 to 11 as follows:
"In view of the above we consider that the decision is unlawful and harsh and discretionary powers were exercised in arbitrary and fanciful ways without considering its consequences on his family and private life as technically if he withdraw the appeal and then submit a new application for further leave to remain until getting leave he cannot continue to work in the UK.
He would be here as a destitute and therefore it would have been very hard almost impossible to survive and look after [his] daughter in the UK and therefore we consider the decision is unlawful and disproportionate in the best interests of justice."
17. In the final paragraph of the grounds the appellant seeks
"A right of appeal or alternatively remit this matter to the respondent to make a new decision in pursuit of changed material circumstances therefore he can continue to work under Section 3C of the Immigration Act 1971 until further decision of the respondent."
Permission to appeal
18. Permission to appeal was granted on the basis that the Judge had arguably failed to give adequate reasons for reaching his conclusion that there was no real prospect of success for the applicant's application for contact with his daughter, made just a few days before the First-tier Tribunal hearing and/or that there was no finding of fact on a material matter, namely that the appellant maintained physical contact with his daughter until September or October 2014, when his ex-wife terminated an out of court agreement regarding contact.
19. The grant of permission concludes as follows:
"The judge simply found at paragraph 21 of the decision that the appellant had not shown that he was in contact with the daughter (presumably as of the date of hearing). It is arguable that the history of contact with the daughter and the reasons for physical contact coming to an end were important issues that required clear findings of fact."
Upper Tribunal hearing
20. At the hearing, Mr Ahmed for the appellant acknowledged that the appellant, who represented himself before the First-tier Tribunal, had not made any application for an adjournment, but continued to argue that the Judge erred in law in not considering whether to do so. He accepted that the appellant had no contact with his daughter at the date of hearing. Mr Ahmed recognised that he would have difficulty in challenging the substance of the First-tier Tribunal decision, which, he said, was why the appellant was seeking contact with his daughter, but he argued that the Judge had no right not to consider an adjournment. He asked me to allow the appeal.
21. For the respondent, Mr Melvin argued that if the appellant did not ask for an adjournment, there was no arguable error of law in not adjourning, particularly in the light of the overriding objective at paragraph 2 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. He contended that the substantive findings in the First-tier Tribunal's decision were open to the Judge, on the evidence before him, and that he had dealt adequately with the best interests of the child at paragraphs 21 and 22 of his decision. He asked me to dismiss the appeal.
Discussion
22. Dealing first with the question of an adjournment in the First-tier Tribunal, there was no application by the appellant and it is not an error of law not to adjourn, where no adjournment is sought.
23. Dealing next with the question of the appellant's contact application, there was nothing before the First-tier Tribunal, and is nothing before the Upper Tribunal, to support any history of substantial contact between the appellant and his daughter, or to explain in detail the reasons for any contact having ceased. There is no statement from the appellant. There is no statement from his former partner. There is no copy of divorce proceedings or the earlier withdrawn contact application.
24. On the basis of the very limited evidence which was advanced by the appellant, both before the First-tier Tribunal and the Upper Tribunal, I am satisfied that the Judge's reasons are adequate. The appellant has not shown any irrationality or Wednesbury unreasonableness in the First-tier Tribunal decision, having regard to the test at paragraph 90(2) of the decision of the Court of Appeal Lord Justice Brook in R (Iran) & Ors v Secretary of State for the Home Department [2005] EWCA Civ 982).
25. On the evidence, it was unarguably open to the First-tier Judge to find as he did that there was no evidence of any significant level of contact or any contact at all between this appellant and his British citizen daughter and to dismiss the appeal.
Notice of Decision
26. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law. I do not set aside the decision. The decision of the First-tier Tribunal stands.

Signed: Judith A J C Gleeson Date : 1 August 2016
Upper Tribunal Judge Gleeson