Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/44463/2014

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke-on-Trent
Decision & Reasons Promulgated
On 1 August 2016
On 15 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

H.B.
(ANONYMITY DIRECTION Made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Z Raza of Counsel instructed by Pure Legal Solicitors LLP
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS
1. In my error of law decision in this appeal set out on 13 June 2016 I made an anonymity direction under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. That direction remains in force.
Error on a Point of Law
2. In my decision of 13 June 2016 I summarised the background to this appeal and gave reasons for concluding that the decision of the First-tier Tribunal Judge contained an error on a point of law such that it should be set aside and remade on the limited basis to which I referred. I now quote the relevant parts of that decision:
"Background
1. On 18th November 2015 Designated Judge of the First-tier Tribunal J M Lewis gave permission to the appellant to appeal against the decision of Designated Judge of the First-tier Tribunal McClure in which he dismissed the appeal of the appellant under the Immigration Rules and on human rights grounds against the decision of the respondent taken on 27th October 2014 to refuse leave to remain applying the provisions of Appendix FM and paragraph 276ADE of the Immigration Rules and to remove under Section 10 of the Immigration and Asylum Act 1999.
2. It should be noted that, in the same decision, Designated Judge McClure allowed the appeals of the sister of the appellant in this case and her two minor children. The appeals of those appellants were allowed under Appendix FM and paragraph 276ADE of the Immigration Rules. That was principally for the reason that it would not be reasonable to expect the child appellants to leave the United Kingdom having been here for more than seven years and their mother had a subsisting parental relationship with them. All the appellants are citizens of Pakistan.
3. When granting permission, Designated Judge Lewis noted that the appellant in this appeal was not the father of the children but the brother of their mother and so an uncle to the children. At paragraphs 61 to 68 of the decision the Designated Judge had accepted that the appellant played a material part in the lives of the children to whom he was akin to a father figure and that family life existed between all of them. However, although the Designated Judge had considered the circumstances of the appellant before concluding that interference with his family life was proportionate, he had not considered the impact of the appellant's removal on the other three appellants, especially the two children. Designated Judge Lewis thought this to be an arguable error.
The Hearing and Submissions
4. At the hearing Mr Ahmed confirmed that the grounds and contents of the permission were relied upon. Whilst he accepted that the decision was detailed, he emphasised that, having found the existence of private and family life between all of the appellants, it was incumbent upon the judge to consider the impact of removal, particularly on the children. He contended that there was nothing in the decision to show that this had been done.
5. Ms Johnstone drew my attention to paragraphs 61 and 63 of the decision which, she submitted, showed adequate consideration of proportionality issues and the impact upon the other appellants. In particular the judge made reference to the financial consequences of the appellant's departure which would make his sister and her children reliant upon government support and the family would not be able to afford the fees for extra education that had been enjoyed in the past.
6. Mr Ahmed concluded by indicating that the judge had focused on the fact that the appellant was not the father of the children instead of considering the best interests for all of them.
7. Both representatives suggested that, if an error was found, then any re-making of the decision in relation to the human rights claim outside the Rules should continue in the Upper Tribunal.
Conclusions
8. The decision of the Designated Judge is certainly comprehensive and thoughtful carefully distinguishing between the circumstances of each group of parties involved notably the appellant is the subject of the application in this case. The sole issue is whether or not the judge gave adequate consideration to the effect which the departure of this appellant would have on his sister and her children, bearing in mind that the judge had given cogent reasons for concluding that a family life existed between all of them. In that respect the judge applies the Court of Appeal decision in Kugathas [2003] EWCA Civ 31 on the basis that there was something more than the normal blood ties between them particularly since the appellant appeared to have been giving support through illegal working.
9. Although the judge properly excluded the application of the Immigration Rules for the appellant, he moved to consider the human rights claim outside the Immigration Rules without identifying any compelling circumstances which might justify leave to remain on the basis recommended in SS (Congo) [2015] EWCA Civ 387. However, that omission might not be fatal where the judge had given comprehensive consideration to any factors which might support the human rights claim but, unfortunately, it appears that he did not because he omitted to have regard to the impact of removal on the other members of the family group, on the basis required by Beoku-Betts [2008] UKHL. Although the judge does give consideration to the financial impact of the appellant's removal and the judge directed himself to take into consideration the best interests of the two minor children, there is no specific consideration in the decision of the effect of his removal on the relationship of both those children and their mother. This is a material error which requires the re-making of the appeal on that narrow basis.
10. As the judge's conclusion that a family life exists between the appellant and the other former appellants is to stand, it is appropriate that the re-making of this appeal should take place at a resumed hearing in the Upper Tribunal at which the appellant will be permitted to adduce evidence about the effect of his removal upon his sister and her children.
Notice of Decision
The decision of the First-tier Tribunal contains an error on a point of law such that it should be re-made on the limited basis referred to in the preceding paragraph ?"
Remaking the decision
3. At the resumed hearing in the Upper Tribunal before me on the 1st August 2016 I heard submissions from representatives concerning the issue of the impact of removal of the appellant on other members of his family group taking into consideration that the first Judge found the existence of a family and private life and that the respondent's refusal decision significantly interfered with that life. It was agreed that my consideration of human rights issues would be outside the Immigration Rules.
4. Representatives also agreed that the main issue for my consideration was that set out in Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 (as amended) as to whether or not it would be reasonable to expect the children with whom the appellant has a parental relationship to leave the United Kingdom.
5. It was pointed out to me that the appellant's sister and her two daughters have all been granted leave to remain in the United Kingdom following the success of their joint appeal before the First-tier Judge who had, nevertheless, dismissed the appeal of the appellant in these proceedings.
6. The children all qualify under the seven year provision set out in Section 117D(1) of the 2002 Act. Mr Raza submitted that it would not be reasonable to expect the children of the family relationship with the appellant to return to Pakistan, their best interests clearly being to remain in the United Kingdom. My attention was drawn to the letters from each of the children in the consolidated bundle submitted by representatives on 26 July 2016 which set out the extent of their daily relationship with the appellant. He also drew attention to the detailed letter of support from the head teacher of the children's school on Pages 40 and 41.
7. Mr Raza emphasised that the appellant was the de facto father and only male role model for the children. He contended that the best interests of the children were clearly for the appellant to remain with them as he had done in the last eleven years in the United Kingdom. He acknowledged that family life had been established when the appellant's status was precarious because he had no leave but he considered that the strength of family and private life outweighed this.
8. Mr McVeety helpfully acknowledged that the first Judge had already found, when concluding the existence of family life, that it would not be reasonable to expect the children to leave the United Kingdom when applying the provisions of Section EX.1 of Appendix FM of the Immigration Rules before allowing their appeal. He acknowledged that it had also been shown, before the First-tier Judge, that the Appellant was the de facto father of the children.
Conclusions
9. After I had heard submissions and taking account of the helpful acknowledgements made by Mr McVeety, I announced that I would allow the appeal of the appellant on human rights grounds and now give my brief reasons for doing so.
10. All the important factors required to enable me to allow this appeal on human rights grounds are present. In particular it has been established that the appellant has a family life with his sister and her nieces which has existed for at least eleven years in this country.
11. He has clearly established a genuine and subsisting parental relationship with the children following the breakdown of the sister's marriage even if he is not their natural father. The statement of the appellant which commences on page 1 of the consolidated bundle sets out the extent of involvement of the appellant in the emotional and practical upbringing of the two children. It is also evident, from the letters from the children that their uncle is regarded as a father figure who has extensive involvement in their daily lives. There is no relationship with their natural father. The head of the children's school has written in some detail about the extent and value of the appellant's relationship with his nieces.
12. It is also my conclusion that the best interests of the children are to remain with their mother and the appellant in the United Kingdom. As Section 117B of the 2002 Act specifies, the public interest does not require a person's removal whether there is a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect the child to leave the United Kingdom. That is precisely the position here. Although the Article 8 balancing act requires consideration of the appellant's immigration history I am not satisfied, having regard to the specific provisions of Section 117B that this can outweigh the appellant's strong relationship with his nieces and their mother. On this basis and having regard to the helpful acknowledgements made by Mr McVeety for the Home Office this appeal can be allowed on human rights grounds.

Decision

The decision of the First-tier Tribunal in relation to this appellant showed an error on a point of law. I set aside that decision and remake it to allow the appeal on human rights grounds.

Fees Award

Although I have allowed this appeal it was not possible to do so without the additional information provided after the leave application. The First-tier Tribunal did not make an award in respect of the successful appeals by the appellant's sister and children, either. In these circumstances I do not consider a fee award to be appropriate.

Signed Date 15/08/2016

Deputy Upper Tribunal Judge Garratt