Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/47629/2014

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 10 December 2015
On 20 January 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

SUMIT KUMAR
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Caskie, instructed by Maguire Solicitors
For the Respondent: Mr McVeety, a Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, Sumit Kumar, was born on 24 August 1982 and is a male citizen of India. By a decision dated 30 November 2014, the respondent resolved that the appellant's removal to India would not breach Article 8 ECHR. The appellant appealed against that decision to the First-tier Tribunal (Judge Debra Clapham) which, in a decision promulgated on 9 March 2015, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. The appellant entered the United Kingdom on 7 August 2006 on a business visitor visa. At the expiry of that visa, he did not return to India. On 15 January 2013, the appellant was served with a form IS151A. The appellant has a daughter (E) who is under the age of 18 years and who the judge [84] was prepared to accept is a British citizen. The appellant has contact with E at a contact centre. There have been problems between the appellant and E's mother, the appellant's former partner. The appellant currently has a relationship with another woman but he does not live with her. That woman has a son and the appellant claims that he stays with his current partner and her son 2-3 times per week at the home of a third party [31].
3. The parties are agreed that the appellant was not entitled to remain in the United Kingdom under the provisions of HC 395 (as amended); his application to the respondent and his subsequent appeals are based entirely upon Article 8 ECHR. Judge Clapham considered the relationships which the appellant has with his current partner, her son and his own child (E) and concluded that the appellant's removal from the United Kingdom would not be disproportionate.
4. There are two grounds of appeal. Ground 1 concerns the judge's comments at [84]:
84. In relation to [the appellant's] relationship with his daughter E it is probably fair to argue that the daughter is a British citizen. Whilst I saw no evidence of this per se I am prepared to take the evidence of the appellant at face value in this regard. I have to say though that I find it curious that the contact difficulties with E began at the time when removal looked likely. Even if I am wrong in this and the attempt to initiate contact was genuine I saw no evidence to show that it is in the best interests of E for contact to be maintained or indeed increased. The evidence provided by the positive contact centre certainly falls short of making assertions and it in fact only deals with the contact as it took place.
5. The appellant argues that the judge seems to infer that the attempt to initiate contact had not been a genuine one. The appellant argues that it is not a finding which is clear or, in any event, supported by the evidence. Secondly, the appellant argues that family ties should be developed, where possible, notwithstanding family breakdown. There was no evidence for the judge's finding that it was in the best interests of E for contact not to be increased.
6. Taking the last point first, the judge considered the contact between the appellant and E on the basis of the evidence before her. Her observation that there was "no evidence" which would show that it was in the best interests of E for contact to be maintained or increased was available to the judge given that the only independent evidence she had regarding contact did no more than to state that it took place and the frequency of its occurrence. I agree, however, that the judge's reasoning at [84] is somewhat obscure. The judge's statement that she found it "curious" that contact difficulties with E began at a time when removal looked likely does not, in my opinion, amount to a clear finding of fact. Indeed, it is not clear whether the appellant's attempts to have contact with E were related to his possible removal or the "difficulties" in contact that occurred at that time. The judge's comments at [84] become more problematic in the light of the second ground of appeal. This ground invokes Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 (as amended):

(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.

7. As Ground 2 points out, the judge has made no reference at all to Section 117 in her decision. Section 117A(2) compels any court or Tribunal "in all cases" to consider Section 117B. Mr Caskie, for the appellant, argued that Section 117B(6) was of relevance in the instant case given that the appellant was not liable to deportation. It was, Mr Caskie submitted, in the nature of a "trump card" because there would be no public interest in the appellant's removal given that he had a "genuine and subsisting parental relationship with a qualifying child." "Qualifying child" in this context means a person who is under the age of 18 and who is a British citizen or who has lived in the United Kingdom for a continuous period of seven years or more (Section 117D(1)). Mr McVeety, for the respondent, submitted that the appellant could not succeed by the application of Section 117B(6) because (i) there had been no need for the judge to go beyond the application of HC 395 in this instance and to consider Article 8 ECHR outside the Immigration Rules and; (ii) there was no evidence that the appellant had a genuine or subsisting parental relationship with E.
8. I do not agree with the first of the submissions of Mr McVeety. Given that the appellant had sought to remain in the United Kingdom not under the Immigration Rules (which he accepts he cannot satisfy) but by reference to Article 8 ECHR and given also that Section 117B applies "in all cases" it would appear that the section is relevant here. As regards Mr McVeety's other submission, that there was no evidence of a genuine and subsisting parental relationship, I return again to consider the problems raised by the judge's observations at [84]. The judge should have considered Section 117B(6) and, before applying that section, she should have made clear and unequivocal findings as to whether there was a genuine and subsisting parental relationship between the appellant and E. She did not make any such finding either at [84] or elsewhere in her decision. The judge has cast doubt upon the genuineness of the relationship and has commented upon whether continued or increased contact may be in E's best interests but she has not determined whether, at the date of the hearing in the First-tier Tribunal, a genuine and subsisting relationship actually existed. If it did and continues to exist, then Mr Caskie may well be right in arguing that there is no public interest requiring the appellant's removal. However, it will be necessary for there to be further fact-finding before that question may be answered. I find that the First-tier Tribunal erred in law such that its decision falls to be set aside. The Tribunal failed to make clear findings of fact and has failed to apply relevant statutory provisions. A new fact-finding exercise is required and this exercise is better conducted by a differently-constituted First-tier Tribunal than by the Upper Tribunal. When it has made clear findings as regards the existence and nature of any relationship between the appellant and the child, the First-tier Tribunal will need to apply the relevant statutory provisions.

Notice of Decision

The decision of the First-tier Tribunal which was promulgated on 9 March 2015 is set aside. The appeal is returned to the First-tier Tribunal (not Judge Debra Clapham) for that Tribunal to re-make the decision.

No anonymity direction is made.

Signed Date 1 January 2016

Upper Tribunal Judge Clive Lane