Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/50220/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18th April 2017
On 28th April 2017

Before

UPPER TRIBUNAL JUDGE KING TD

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

A.H
Claimant/Respondent

Representation:
For the Appellant: Mr E Tufan, Home Office Presenting Officer
For the Claimant/Respondent: Mr B Singh, Counsel, instructed by Malik Law Chambers Solicitors (Southall)

DECISION AND REASONS

1. The claimant is a Pakistani national. He is married and has three children of that relationship. His wife is a British national and his three children are also British nationals having been born in the United Kingdom.

2. The claimant served in the army in Pakistan. It is right to note that the family as a whole lived together in Pakistan from 1990 to 2014. In 2014 they all came together to the United Kingdom exercising their rights as British citizens to live in the United Kingdom. The claimant entered the United Kingdom with them on 17th March 2014 upon a visit visa for six months. Thereafter he made an application to remain in the United Kingdom and that was refused in the decision made on 24th November 2014.

3. It was against that decision that an appeal to the First-tier Tribunal was lodged and came for hearing before First-tier Tribunal Judge Moran on 2nd June 2016. The credibility of the claimant and his wife in the evidence which they gave was not doubted by the Judge. Although the claimant had intended to return to Pakistan his wife’s physical and mental health deteriorated such that she was unable to work and needed assistance to look after the family as a whole. She suffers from carpal tunnel syndrome and with other difficulties.

4. It was not in dispute at the hearing that the claimant did not meet the Immigration Rules, not least because his wife, the sponsor, was no longer able to work to obtain the income that was necessary to secure his spouse’s visa.

5. The Judge, in considering the proportionality of return outside of the Immigration Rules, noted the precarious situation which the claimant would face upon any fresh application for leave to remain made from Pakistan.

6. A number of factors were highlighted in the claimant’s favour by the Judge in paragraph 29 of the determination leading to the conclusion that such amounted to compelling circumstances. The Judge weighed the competing public interest in his removal. On that basis the appeal was allowed.

7. Challenge has been made by the Secretary of State to the findings and conclusion of the Judge.

8. Relying upon the case of Sabir (Appendix FM – EX.1 not free standing) [2014] UKUT 0063 (IAC) she submitted that the likelihood or otherwise of the claimant being able to meet the requirements of the Rules for entry clearance is not a relevant consideration in cases such as this. Although there may be some merit in that contention the main thrust of this appeal is simply that the Judge failed to take any account of the reality that the family as a whole would return to Pakistan. Clearly there were no insurmountable obstacles to their continuing life in Pakistan and, it is submitted, it would not be unreasonable for them to return as a family bearing in mind the length of time that they had lived in Pakistan together.

9. The weakness of that particular argument as advanced is precisely that it was not advanced, either in the reasons for refusal decision nor argued by either party at the hearing before the Judge. Indeed the Judge at paragraph 22 makes it entirely clear as follows: “It was not argued, in either the refusal letter or in oral argument, that the family could be expected to move to live with AH in Pakistan. This is a proper position to take given that the family are all British citizens.” The Judge noted further in paragraph 29:

“It is properly not argued that H and other family members could reasonably be expected to continue their family life with AH in Pakistan, in addition it is not possible for them to have a family life of anything like the quality that they currently have by remote modern methods of communication from Pakistan. This is particularly the case with his fatherly relationship with H.”

10. The function of the Judge is to determine the issues that are joined between the parties. The case proceeded rightly or wrongly upon the basis that the family would remain in the United Kingdom and therefore whether it was reasonable or unreasonable or proportionate for the claimant to live elsewhere. It was not for the Judge to introduce matters that were not relied upon by the parties. Clearly on occasions the parties miss the glaringly obvious. In this case neither party relied upon the proposition now advanced in supporting the grounds of appeal.

11. Mr Tufan has most properly drawn my attention to a recent decision of the Tribunal in SF and others (Guidance, post-2014 Act) Albania [2017] UKUT 00120 (IAC) where the Tribunal highlighted that it ought to take account of the Secretary of State’s guidance if it points clearly to a particular outcome in an instant case which is necessary in order to permit of consistency.

12. The Tribunal in paragraph 7 of the judgment gave careful consideration to the guidance document, namely the “Immigration Directorate Instruction - Family Migration: Appendix FM, Section 1.0b, Family Life (as a Partner or Parent) and Private Life: 10-Year Routes”. This was the edition of August 2015, which was not in force at the date of the decision under appeal but was in force at the date of the hearing and decision. It contains important guidance as to whether it would be unreasonable to expect a British citizen child to leave the United Kingdom, the passage being as follows:

“Save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child. This reflects the European Court of Justice judgment in Zambrano.

Where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case must always be assessed on the basis that it would be unreasonable to expect a British citizen child to leave the EU with that parent or primary carer.

In such cases it will usually be appropriate to grant leave to the parent or primary carer, to enable them to remain in the UK with the child, provided that there is satisfactory evidence of a genuine and subsisting parental relationship. It may, however, be appropriate to refuse to grant leave where the conduct of the parent or primary carer gives rise to considerations of such weight as to justify separation, if the child could otherwise stay with another parent or alternative primary carer in the UK or in the EU.”

13. Mr Tufan candidly accepts that such a decision may to some extent undermine the position of the Secretary of State, that it would be reasonable for the British child and indeed family members to return to Pakistan, and may provide some support for the view of the Judge that it was a proper position to take not to contend that such a family unit could return.

14. Matters, I recognise, are delicately balanced in terms of that matter. It is in those circumstances that the compelling circumstances as set out in paragraph 29 of the determination have particular relevance, namely that the family has been a strong cohesive unit since 1990; the claimant has remained in the family unit throughout the time and has been a positive influence and role model for his children; the only child under the age of 18 has a strong relationship with him and more particularly that given the ill health of the claimant’s wife that it is difficult for her to play a full role in caring for the children herself. In the circumstances he is assuming a prominent role in caring for his family and particularly for H. It was also the finding of the Judge that it would be in the best interests of H to continue to live with both parents.

15. As I have indicated, however, before, no argument was overtly addressed to the Judge to the effect that it would be reasonable to expect the family to return to Pakistan and particularly H, the minor child. In the circumstances the issue really arose as to whether it was proportionate or disproportionate to expect the claimant to return, whether there were any compelling factors outside of the Rules which would have rendered that return unreasonable. Those factors have been identified by the Judge at paragraph 29 of the determination. No challenge has been made in the grounds of appeal that such an assessment was irrational or unreasonable in all circumstances.

16. This was, as I conclude, a factual assessment of the situation which the Judge was entitled to make.

17. In all the circumstances, although the findings of the Judge may be considered to have been somewhat generous in the circumstances, it was for the Judge to indicate whether any particular circumstances such as to be compelling. Those factors were identified with clarity in paragraph 29 of the determination.

18. Overall I find that the Judge was entitled to consider those issues presented for consideration by the parties and has fairly and reasonably determined the same.

19. Accordingly I do not find there to be such a material error in the decision as to constitute an error of law for the purposes of a challenge made to it.

Notice of Decision

In the circumstances therefore the appeal by the Secretary of State is dismissed. In those circumstances the finding of First-tier Tribunal Judge Moran that the appeal be allowed on human rights grounds is to stand.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 27 April 2017

Upper Tribunal Judge King TD