Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/04034/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision & Reasons Promulgated
On: 12th January 2017
On: 13th January 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Mrs Shabnam Bi
(Anonymity direction not made)
Appellant
And

The Secretary of State for the Home Department
Respondent

For the Appellant: Mr Karnik, Counsel instructed by R&A Solicitors
For the Respondent: Mr Bates, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Pakistan date of birth 8th February 1979.

2. On the 3rd June 2016 the First-tier Tribunal (Judge Chambers) dismissed the Appellant's appeal against a decision to refuse to grant her entry clearance to the United Kingdom. The case before the Tribunal had been that the Appellant is the mother and primary carer to a British citizen child who is living with her in Pakistan. Pursuant to the decision in MA and SM (Zambrano: EU children outside of the EU) Iran [2013] UKUT 00380 (IAC) the Appellant asserted that she should be given entry clearance in order to facilitate her daughter's access to the rights that are her entitlement as a national of the EU/British citizen. The Tribunal did not accept that the ratio of MA and SM applied here. I need not set out why, since in response to this appeal the Secretary of State accepts that the First-tier Tribunal erred in law in its interpretation of that authority and that the decision in the appeal should be remade.

3. Before me Mr Bates agreed the following facts. The Appellant is the mother of a seven year old girl and they are both living in Pakistan. The child is both British, and an EU national. Although the child's father lives in the United Kingdom (as far as anyone is aware) he has never taken any part in her upbringing. The evidence before Judge Chambers was that he had in fact contrived to ensure that both mother and child were 'stranded' in Pakistan. The child does have a maternal uncle living in the United Kingdom who has undertaken to support both her and the Appellant financially, but the Secretary of State does not seek to persuade the Tribunal that the child could exercise her Zambrano rights by living with this relative. Her mother has always been her primary carer, and for the foreseeable future will continue to fulfil that role. Mr Bates invited me to re-make the decision in the appeal with reference to those facts, the guidance in MA and SM and the Secretary of State's own guidance. In respect of the latter he conceded that there were no countervailing factors to be weighed against the Appellant. There is no criminality involved and following the findings of Judge Chambers, no attempt to circumvent immigration control. She has in the past always complied with the conditions attached to her leave and there is no reason to believe that she would not do so in the future.

4. The relevant headnote finding of MA and SM is as follows:

"In EU law terms there is no reason why the decision in Zambrano could not in principle be relied upon by the parent, or other primary carer, of a minor EU national living outside the EU as long as it is the intention of the parent, or primary carer, to accompany the EU national child to his/her country of nationality, in the instant appeals that being the United Kingdom. To conclude otherwise would deny access, without justification, to a whole class of EU citizens to rights they are entitled to by virtue of their citizenship."

5. I am satisfied that the child in question requires her mother's presence in the United Kingdom in order to exercise the rights that are hers by virtue of her nationality. Mr Bates conceded for instance, that at her age she should be attending school in the United Kingdom. At present she is unable to exercise that right because her mother cannot bring her here from Pakistan. I am satisfied that there are no other adults in the United Kingdom who could be expected to look after the child, and in common with the Tribunal in MA and SM I am not prepared to find that her rights could be exercised by her surrendering herself to the care of social services. Applying the ratio of that decision I am satisfied that the Appellant has established that she should be given Zambrano rights of residence derived from that of her daughter.

6. I further allow the appeal with reference to Article 8 ECHR. As in MA and SM I accept that the Article 8 is engaged, albeit that this case concerns entry rather than removal. If it is accepted that the child must be given a right to enter the United Kingdom, it must logically be accepted that there would be an interference with her family life with her mother should her mother be left behind in Pakistan. Although the control of entry is plainly a matter lawfully within the power of the ECO, I do not find that the decision would be one necessary in a democratic society or a proportionate response to the legitimate aim of protecting the economy. If this was a child in the United Kingdom it would not be reasonable to expect her to leave, and nor, as a consequence of s117B(6) of the Nationality, Immigration and Asylum Act 2002, would it be in the public interest of her mother to leave without her: this is the effect of the Secretary of State's own guidance, set out at paragraph 11.2.3 of the Immigration Directorates' Instructions, Family Migration Appendix FM Section 1.0 at 11.2.3. The relevant part reads:

"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".

7. For these reasons, as well as those set out in MA and SM, the appeal is allowed.

Decisions

8. The determination of the First-tier Tribunal contains an error of law such that it is set aside by consent.

9. The decision in the appeal is remade as follows:

"The appeal is allowed with reference to the Immigration (European Economic Area) Regulations 2006.

The appeal is allowed on human rights grounds"

10. There is no order for anonymity.

Upper Tribunal Judge Bruce
12th January 2017