Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/49409/2014

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
on 10 October 2016
on 11 October 2016

Before

UPPER TRIBUNAL JUDGE HANSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

RS
(Anonymity direction made)
Respondent

Representation:
For the Appellant: Ms Aboni Senior Home Office Presenting Officer.
For the Respondent: Miss E Norman instructed by J M Wilson Solicitors.

DECISION AND REASONS

1. This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge McGarr (the Judge) promulgated on the 31 July 2015 in which the Judge allowed the appeal on human rights grounds outside the Immigration Rules.

Background

2. RS is a national of India born on the 15 April 1980 who arrived in the United Kingdom in August 2003. RS's immigration history is set out at [1-2] of the decision under challenge.
3. The Judge dismissed the appeal under the Immigration Rules finding RS not to be a credible witness.
4. The Judge found at [53] that it is undisputed that RS is the father of the child J and that he has a genuine and subsisting parental relationship with the child who is under the age of 18, in the UK and a British citizen. The key issue identified was whether it would be unreasonable or not to expect J to leave the UK.
5. At [55] the Judge found:

"Whilst I find that the Appellant has a genuine and subsisting relationship with J, I also find that such has been the Appellant's conduct - a very poor immigration history, where he has deliberately evaded the immigration authorities and process, that weighing all the evidence in the balance the Appellant cannot rely upon EX.1 as a basis to remain in the UK. However grave the step may be, I find that J can remain with his mother who has been his primary carer and who has the support of her family. However tragic it is that the sponsor has multiple sclerosis, as well as other medical conditions, I have no evidence before me as to the prognosis of her condition though as I have previously stated she is under the care of medical specialists in the UK.

6. The Judge dismissed the appeal under the Rules but also found at [57] that J's situation created a compelling reason or arguable good case to consider Article 8 outside the Rules. It was found that family life recognised by Article 8 ECHR exists with the child. At [62], following a reference to section 117B(6) of the Nationality, Immigration and Asylum Act 2002 the Judge finds:

"J is a British citizen and therefore a qualifying child. I have already found that the Appellant has a genuine and subsisting parental relationship with J. The issue then is whether it would be reasonable to expect J to leave the United Kingdom. J is now aged 9, is a British citizen and has lived in the UK throughout his short life. He attends school. He has never been to India and has no ties there, though there is evidence in the papers that he is keen to visit his "grandparents" - the Appellants parents in India."

7. At paragraph 63 the Judge concludes:

"No further guidance is offered so far as what is considered "not reasonable" to expect the child to leave the United Kingdom. With this in mind I am driven to the irresistible conclusion that as the Appellant is not subject to deportation but rather administrative removal and that J is a British citizen who has known only the UK, is educated here, it would not be reasonable to expect him to leave the UK. Therefore I find on this narrow basis only the Appellant's removal from the UK would not [be] proportionate."

8. The Secretary of State relies upon two heads of challenge. The first asserts the Judge failed to give an explanation for why the case fell 'outside the Rules'. It is submitted that the facts of this case all fall within the ambit of the rules making it unnecessary to consider the same under Article 8 ECHR.
9. The Judge did consider this issue at [57] and found that the child's situation created compelling reasons for considering the matter further. The Judge noted J's mother's medical condition and the nature of the relationship between RS and J. If, as submitted by Ms Aboni, RS was unable to succeed under EX.1 as a result of the inability to satisfy the eligibility requirements the Judge was prevented from considering and allowing the appeal, if appropriate, on EX.1(a)(cc)(i) on the basis it would not be reasonable to expect the child to leave the UK, EX.1 not being a freestanding provision. The Judge refers to the decision in Beoku-Betts [2008] UKHL 39 and the need to consider the human rights of third parties affected by the decision. No arguable legal error has been made out in the decision to consider the matter outside the Immigration Rules.
10. Grounds two assert the Judge failed to give adequate reasons for material matters. This grounds had no arguable merit. A reading of the decision under challenge shows clearly why the Judge found in favour of RS. The assertion the Judge failed to engage with the public interest has no arguable merit. As the Judge was considering Article ECHR outside the Rules it was necessary to consider the statutory provisions set out in section 117 of the 2002 Act, and in particular section 117 B(6) which is the following terms:

"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.

11. It is not claimed before me that the Judge misdirected himself in law in placing reliance upon this section. The assertion the Judge failed to consider the public interests adequately is not made out as the wording of the section sets out the weigh to be given to the public interest in such cases.
12. Ms E Normal relied upon the decision of the Upper Tribunal in Treebhawon and others (section 117B(6)) [2015] UKUT 00674 (IAC) at paragraph 21 where it is stated:

21. In contrast, the two "considerations" contained in section 117B(4) and (5) are somewhat different from the other four, in the following respects. First, they make no mention of the public interest. They are, rather, concerned with facts and factors which, while bearing on the proportionality assessment under Article 8(2) ECHR, shift the focus from the ambit of the public interest to choices and decisions which have been made by the person or persons concerned in their lives and lifestyles. Second, there is a degree of tension between a court or tribunal having regard to a specified factor, as a matter of obligation (on the one hand) and (on the other) giving effect to a Parliamentary instruction about the weight to be given thereto. Indeed, in giving effect to section 117B(4) and (5), the court or tribunal concerned is not, in truth, performing the exercise of having regard to these statutory provisions. Rather, the Judge is complying with a statutory obligation, unconditional and unambiguous, to give effect to a parliamentary instruction that the considerations in question are to receive little weight."

13. The Judge refers to the lack of guidance but the Court of Appeal have now provided guidance in relation to the assessment of the reasonableness of expecting a child to leave the United Kingdom in MA (Pakistan) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705 in which the Court found that when considering whether it was reasonable to remove a child from the UK under the Immigration Rules r.276ADE(1)(iv) and the Nationality, Immigration and Asylum Act 2002 s.117B(6), a court or tribunal should not simply focus on the child but should have regard to the wider public interest considerations, including the conduct and immigration history of the parents. The decision in MA (Pakistan) was handed down in early July 2016.
14. The Judge noted the immigration history of RS and found it to be very poor. The situation of the child's mother, a British citizen, was also considered. It has not been made out that the Judge failed to consider all relevant issues and so the weight give to the evidence was a matter for the Judge.
15. Whilst the Secretary of State may think the decision is unduly generous this Tribunal cannot interfere unless it has been shown the Judge has made an error of law material to the decision to dismiss the appeal. It has not been shown the decision to allow the appeal is outside the range of reasonable decisions open to the Judge on the evidence.

Decision

16. There is no material error of law in the First-tier Tribunal Judge's decision. The determination shall stand.

Anonymity.

17. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make that order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008).

Signed??????????????????.
Upper Tribunal Judge Hanson

Dated the 10 October 2016