Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/39447/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26th September 2016
On 10th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

ZEESHAN [A]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Aslam (Counsel)
For the Respondent: Mr E Tufan (Home Office Presenting Officer)

DECISION AND REASONS
1. The Appellant is a male, a citizen of Pakistan, who was born on 27th August 1991. He appealed to the First-tier Tribunal against the decision of the Respondent, taken on 17th September 2014 refusing him leave to remain in the United Kingdom as a spouse of a person present and settled in the UK.
2. The Appellant's appeal was heard by First-tier Tribunal Judge Majid at Taylor House. At paragraph 9, and under the heading "Relevant Law", the judge went on to consider the law, as it would relate to an Appellant here with their 2 year old child, by reference to the case of ZH (Tanzania) [2011] UKSC 4, and observed that "the child had to be considered and given paramount weight as part of the assessment of proportionality under Article 8 ECHR" (paragraph 9(b)).
3. It was agreed by both Mr Aslam, appearing on behalf of the Appellant and, by Mr Tufan, Senior Home Office Presenting Officer, that this was an incorrect exposition of the law, because the best interests of the child are a "primary" consideration under the law.
4. Furthermore, in circumstances where the Appellant has married a Thai lady, by the name of [WP], and there is a 2 year old daughter, the judge referred to how, this girl has British nationality and to expect her to go an alien culture is definitely 'disproportionate in the application of the ECHR' (paragraph 11). This was, as Mr Tufan pointed out, factually incorrect, as the Thai wife of the Appellant, was not a British citizen, and could not have passed on citizenship to the 2 year old child, who also did not have British nationality.
5. In addition, Mr Tufan pointed out that, given that both parents were not settled in the UK, the case of EV (Philippines) [2014] EWCA Civ 874 was not given proper consideration. That, of course, was a case which held that despite a finding, in a family's appeal against the decision to remove them, that the best interests of the child lay in continuing their education in the United Kingdom with both parents also remaining in the United Kingdom, the Tribunal was perfectly entitled to find that the need to maintain immigration control outweighed the children's best interests.
6. Mr Aslam, however, argued that be this as is may, the fact remained that in July 2013 the daughter was born and at the time of the appeal she was 2 years old and, whilst it was accepted that she was not a British national, the Thai wife of the Appellant had come to the UK in 2001 when she was only 10 years old, and requiring her now to go with the Appellant to his country would be disproportionate and unduly harsh for her.
7. The Appellant's wife's mother was a British national, and so on the wife's side there was a considerable amount that could be said in her favour, such that she should not be required to accompany the Appellant to his own country in Pakistan.
8. In short, Mr Aslam submitted, that the judge had done enough to demonstrate that it would be disproportionate to make a decision adverse to the Appellant.
9. In reply, Mr Tufan submitted that there had been no consideration given to Section 117 of the 2002 Act and matters of immigration control are in the public interest and this had not been properly factored in at all.
My Consideration of the Appeal
10. I have concluded that the determination cannot stand. There are three clear reasons. First, the judge has not accurately stated the level at which the best interests of a child are to be determined by saying that they must be "paramount" which is not the case. Second, there is a factual error in that the child is not a British citizen and third, both these matters have a direct impact on the way in which the principle in EV (Philippines) has to be interpreted and applied because, taken in the real world, and taken the facts as they are, it is plain that with neither Appellant having a right to remain in the UK, and the child not being a British citizen, especially in circumstances where the child has not formed an independent family unit of her own, the judge's determination cannot be said to be sustainable. I conclude that the appeal should be remitted to a First-tier Tribunal Judge for a fresh consideration under Practice Statement 7.2 on the basis that the nature or extent of any judicial fact-finding which is necessary in order for a decision in the appeal to be re-made is such that it is appropriate to remit the case to the First-tier Tribunal. The appeal is to be heard by a judge other than the original judge who will need to make clear findings in respect of the Appellant's circumstances.
Notice of Decision
11. The decision of the First-tier Tribunal involved the making of an error of law such as it falls to be set aside. I set aside the decision of the original judge. I re-make the decision as follows. This appeal is submitted back under Practice Statement 7.2(b) to a judge other than Judge Majid to be re-heard again.
12. No anonymity direction is made.

Signed Dated

Deputy Upper Tribunal Judge Juss 10th October 2016