Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/45429/2014

THE IMMIGRATION ACTS

Heard at: Field House
Decision Promulgated
On: 1st August 2016
On 5th August 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

The Secretary of State for the Home Department
Appellant
And

Ayodeji Ilori
(no anonymity direction made)
Respondent

For the Appellant: Ms J. Isherwood, Senior Home Office Presenting Officer
For the Respondent: Mr B. Hawkin, Paul John & Co Solicitors

DECISION AND REASONS
1. The Respondent is a national of Nigeria date of birth 26th July 1977. On the 16th December 2015 the First-tier Tribunal (Judge J Bartlett) allowed his appeal against a decision to remove him from the United Kingdom pursuant to s10 of the Immigration and Asylum Act 1999. The Secretary of State now has permission to appeal against the First-tier Tribunal's decision.
2. The Respondent had applied for leave to remain in the UK on human rights grounds. He had at that time lived in the UK for nine years and had a daughter who was born here in 2010. Although he is no longer with her mother, he enjoys regular contact with her.
3. The First-tier Tribunal determined the matter on the papers before it. This included "refreshingly frank" correspondence from the mother of the Respondent's daughter which described him as a "wonderful dad to our daughter though he was a rubbish boyfriend". On the basis of this evidence it made the unchallenged finding that the Respondent had a genuine and subsisting paternal relationship with the child. At paragraph 8 of the determination the Tribunal notes that the little girl is neither British nor settled for the purpose of the immigration rules. The Respondent could not therefore show that he qualified for leave under Appendix FM.
4. Turning to Article 8 'outside of the Rules' the Tribunal directed itself to s55 of the Borders Citizenship and Immigration Act 2002 and to various authorities including Azimi-Moeyed v SSHD [2013] UKUT 197 (IAC). It made findings that the Respondent enjoyed regular contact with his daughter such that could not be replaced by "modern means of communication". Although he could have face-to-face telephone contact over the internet at her age this would be of limited value. There would therefore be an interference such that Article 8 would be engaged. In respect of proportionality the Tribunal directed itself to consider s117A and s117B of the Nationality, Immigration and Asylum Act 2002 and finds as follows:
"The appellant's child is not a qualifying child as she is under the age of seven. I find that the appellant can speak English on the basis that English is widely spoken in Nigeria. I find that the appellant has been in the United Kingdom unlawfully for his entire stay here. I have not been provided with evidence that the appellant has worked in the United Kingdom or that he has independent financial means other than his witness statement and I do not find that credible given his immigration status. Therefore I find that he will have recourse to public funds.
The respondent seeks to pursue the legitimate aim of immigration control. As set out above, I find that the appellant's child's best interests are for her to remain in regular physical contact with the appellant such as to require him to remain in the United Kingdom whilst she is here. I do not find that the respondent's legitimate aim outweighs the considerations of the child which are of primary importance. Therefore the appeal succeeds on human rights grounds".
The Secretary of State's Appeal
5. The Secretary of State's grounds of appeal are that the First-tier Tribunal erred in failing to have regard to the terms of s117B(6) of the 2002 Act. This states:
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where-
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom
The Secretary of State submits that had the Tribunal properly considered this provision it would have concluded that the public interest does require the removal of a person whose child or relationship does not meet the tests at (a) or (b).
My Findings
6. It is, on a straightforward reading of the determination, not arguable that the Tribunal failed to consider s117B(6). It expressly directs itself to the section at paragraph [18] and notes that the child is not "qualifying".
7. The question of whether that consideration was "proper" is rather more nuanced. Ms Isherwood did not submit the six factors set out in s117B to be an exhaustive list. Nor did she submit that a Tribunal was bound to invert the meaning of s117B(6) to the effect that the public interest positively requires the removal of a person who does not meet its terms. Rather her submissions were that there was a lack of reasons for the overall conclusion and this strayed to perversity. As she put it: "all of the factors appeared to weigh against the appellant yet he still allowed it". She placed particular emphasis on the fact that the child had no leave and could not be treated as a "trump".
8. This is, on any reading, an appeal that has been allowed squarely upon application of the 'best interests' principle in s55 of the Borders, Citizenship and Immigration Act 2009. The Judge made a balanced assessment of what those best interests are, having regard not just to the evidence of the father, but to his former partner and her refreshingly frank assessment of him. A reasons challenge can only succeed where the aggrieved party is left in some doubt about why the decision went against him. It cannot be said that the Secretary of State for the Home Department is in the dark about why the Judge reached the conclusions that he did about the Respondent's relationship with his daughter. Having made those findings the Judge had regard to all of the factors that weighed against the appellant before him: eg the fact that the child was not 'qualifying', the lack of evidence in respect of financial independence, his consistent lack of lawful status. He weighed all of that in the balance, as he is obliged to do, and still found that the appeal should be allowed. His reasoning in that regard is scant, but it is clear.
9. That leaves the real core of Ms Isherwood's submissions: that no rational Tribunal could have possibly allowed this appeal. Had the legal effect of this decision been that the Respondent is granted indefinite or even a substantial period of leave, I would have had little hesitation in agreeing. However, as Mr Hawkin points out, the period of leave granted is a matter for the Secretary of State, and the First-tier Tribunal gave a clear steer as to what that should be at paragraph 19: "I find that the child's best interests are for her to remain in regular physical contact with the appellant such as to require him to remain in the United Kingdom whilst she is here". It was on this limited basis that the appeal was allowed, and given the best interest finding I see no reason to interfere with it. The point was that notwithstanding the fact that the parents were not together the Respondent, his former partner and child did in effect have an interconnected family life.
10. Ms Isherwood informed me that the child and her mother are in the process of being removed from the United Kingdom, (to the point of having attended meetings with the family removals team). I share the view taken by the First-tier Tribunal Judge, that it would at this stage be disproportionate to interfere with the child's relationship with her father, and that he should be permitted to remain up until the point that her status is resolved, one way or another. This is a child who is imminently facing real disruption to her life, and I see no reason to interfere with the First-tier Tribunal's assessment that it would be contrary to her best interests to preface that by losing contact with her father.
11. The effect of the decision is not that the Respondent 'wins'. Rather it is that he gets to continue seeing his daughter up until the point that she, and he, are removed together. If his daughter is in fact permitted to stay in the UK, his position would need to be reviewed. For the reasons set out by Ms Isherwood it is far from clear whether he would eventually be permitted to stay on human rights grounds. The Respondent should be in no doubt that the ratio of this decision was confined to the immediate and short-term future.
Decisions
12. The determination of the First-tier Tribunal does not contain an error of law such that it should be set aside.
13. I was not asked to make an Order for anonymity and on the facts I see no reason to do so.

Upper Tribunal Judge Bruce
4th August 2016