Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/07519/2015
OA/07525/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 27th February 2017
On 13th April 2017

Before

UPPER TRIBUNAL JUDGE GRUBB
DEPUTY UPPER TRIBUNAL JUDGE DAVIDGE

Between

ENTRY CLEARANCE OFFICER - islamabad
Appellant

and

Miss shiza qamar (1)
miss aleena qamar (2)
(anonymity direction NOT MADE)
Respondents

Representation:

For the Appellant: Mr M Diwnycz, Senior Home Office Presenting Officer
For the Respondents: Miss L Fenney of NLS Solicitors

DECISION AND REASONS
1. These appeals concern two Pakistani children who are both female and aged 9 and 11 years at the date of an Entry Clearance Officer’s refusal on 15th April 2015 to grant entry clearance, in response to an application made prior to 06 April 2015, to join their Sponsoring Pakistani mother, her partner and their younger brother; all here with refugee status.
2. Their appeals against the refusals were allowed by First-tier Tribunal Judge Povey in a decision promulgated on 19th August 2016.
3. Permission was granted by Designated Judge Woodcraft on 9th November 2016 who concluded:
“Arguably the judge has not made clear whether he accepted that the sponsor left Pakistan (either in January or on 5th October 2011) in order to claim asylum. If she did not, whether the appellants remained part of her family unit at all times (as found by the judge) is arguably irrelevant since the appellants would not be able to bring themselves within the protection of paragraph 352D as asserted.”
Hearing before the Upper Tribunal
4. Mr Diwnycz , for the Entry Clearance Officer, made no attempt to challenge the judge’s finding that the refugee Sponsor’s daughters remained part of her family unit at all times, and indicated that he only wished to make submissions in respect of whether or not there was sufficient in the decision to deal with the issue of whether the Sponsor had left the country in order to seek asylum, arguing that, on its face, the decision did not deal with the issue.
5. Miss Fenney for the children conceded that the matter had been live before the judge. It was identified in the Entry Clearance Officer’s decision, who reasoned that their mother had left Pakistan in January 2011, in order to come to the United Kingdom, not to claim asylum, but to study, and did not claim asylum until August 2012. Miss Fenney asserted that the relevant date for the assessment was in fact October 2011 because, although the Sponsor had come to study in January 2011 she had returned to Pakistan and then re-entered the UK in October 2011, and it is the persecutory treatment that she suffered from her estranged husband at that time that caused her to return to the UK. The Sponsor, being in immediate fear of her husband, clearly fled to seek refuge here. She argued that the evidence before the judge established that she had fled to seek asylum. However, she was unable to take us to anything in the judge’s decision which dealt with the point.
Discussion
6. The Immigration Rules of HC395 as amended, state, at paragraph 352D:
“352. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom in order to join or remain with the parent who is currently a refugee granted status as such under the immigration rules in the United Kingdom are that the applicant:
(i) is the child of a parent who is currently a refugee granted status as such under the immigration rules in the United Kingdom; and
(ii) is under the age of 18; and
(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
(iv) was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of his habitual residence in order to seek asylum; …”
7. The judge addressed the issue of family unit, finding in favour of the Appellant. We pause here to comment that Mr Diwnycz’s decision not to rely upon the challenge to the judge’s findings in respect of whether or not the children remained part of the Appellant’s family unit at that time was a good one. The judge has clearly set out at paragraph 17 that it was the Sponsor who was in charge of the children and made the arrangements for them to stay with her mother, noting that the Sponsor had made efforts to attempt to bring them to join her in the United Kingdom, and that it was in response to one of the daughter’s being ill that she returned to Pakistan in 2011 in order to care for her. The conclusions of the judge were open on the evidence and adequately reasoned.
8. The representatives are in agreement that the relevant date is not the first entry in January 2011 but the second entry in October 2011. The judge did not make a finding as to whether or not in October 2011 the refugee Sponsor left Pakistan in order to seek asylum. Although the passage of time from October 2011 to August 2012 is significantly less than from the January date, and the evidence of persecutory treatment on the visit in September/October 2011 is not challenged as the reason for the claim for asylum, it is not conclusive. It is not apparent from the judge’s decision, and it is not suggested by Ms Fenney, that the Presenting Officer, following the recalibration of the relevant date from January 2011 to October 2011, conceded the point.
9. In those circumstances we are satisfied that the decision is inadequately reasoned because it fails to resolve the dispute as to the Sponsor’s intentions, a matter which was central to the refusal decision, and so to the success or otherwise of the appeal. It follows we find that the decision must be set aside and remade, limited in the context of the Rules to that issue.
10. Both the representatives were in agreement that in the event that we found an error on the basis we have outlined, we should proceed to remake the decision ourselves, the Sponsor being available to give evidence. Further, both parties were in agreement, that in the event of the finding of error in the context of the Immigration Rules, albeit that the application is not a deemed Human Rights application, the issue of Article 8 is live.
The Remaking of the Decision
11. We briefly heard evidence from the Sponsor in-chief. Mr Diwnycz indicated that he sought to clarify aspects of her evidence but raised no issue of credibility. He sought to clarify exactly when she decided to make her claim for asylum. In summary the Sponsor explained that she had returned to the United Kingdom prematurely, having to leave in a hurry following an assault by her estranged husband that had left her hospitalised. The Sponsor told us that she had fled her husband to seek refuge in the United Kingdom. She had been too frightened to stay with her family and had left immediately to seek refuge in the UK. She told us that at the time she was in an extreme emotional state as a result of the assault and the fear of her husband, she had been too scared about being returned to Pakistan at that time to make her claim for asylum. Shortly afterwards she became pregnant and as the pregnancy progressed successfully it was the fact that she was going to have her little boy, and her fear that the risk extended to him, that led her despite her fears, to actually make the claim for asylum for her baby, herself and her partner. The Sponsor confirmed that all three had been granted refugee status, and that she and her son remained cohabiting with his father, her partner. The couple were not married, she remained married to her estranged husband in Pakistan.
12. Mr Diwnycz submitted that the evidence was not good enough to establish on balance that she had entered the United Kingdom in order to seek asylum. Although the Respondent did not bring forward any evidence about the Sponsor’s claim for asylum, the reality was that the claim was not made until she was pregnant, and that it was prompted by the pregnancy, rather than the events of October 2011 in Pakistan.
13. In respect of Article 8 Mr Diwnycz indicated that he could not resist the Appellant’s claim that there was existing family life and that it was disproportionate to refuse entry clearance to the two children on the factual matrix.
14. Miss Fenney for the Appellants argued that it was quite clear that the Sponsor had come to the United Kingdom in order to seek asylum and the position was not undermined by the late claim because the Sponsor had given good reasons for the delay. Miss Fenney pointed out that the Sponsor’s claim for asylum had been granted at the time.
Discussion
15. We had the benefit of hearing and seeing the Sponsor give her evidence. We take account of her justifiable fear of her husband. The severity of his assaultative behaviour is evidenced by the need for hospital treatment and the immediacy of return. There was no challenge to the credibility of her claim of ill treatment. In our judgement she immediately left Pakistan because of her fear of continued persecutory treatment from her husband – fear which we found was still palpable in the courtroom as she gave her evidence. We recognise the difficulties in recollection in 2017 of events of 2011 but even factoring in difficulties of accuracy in recollection of intention at the time, we are satisfied, on balance, she did in fact flee Pakistan in order to seek asylum in the United Kingdom. We find that position is not undermined by the lateness of the claim in the context of her having pre-existing student leave, and a real terror of what would await her in the event that she was returned to Pakistan. Issues of domestic violence have particular sensitivities which are well understood in the context of a reluctance to come forward. We have no difficulty in accepting her account that, in the event, the late claim was triggered by the fact of the expected birth of her son, but do not find that that in itself outweighs the evidence of her intention to flee in order to seek asylum in October 2011.
16. It follows that in remaking the decision we conclude that the Appellants have established that they meet the requirements of paragraph 352D. It follows that in remaking the decision we allow the Appellant’s appeal under paragraph 352D.
17. For completeness we say that even if we had not allowed the appeal under the Immigration Rules we would find that the Entry Clearance Officer’s decision was a breach of Article 8 ECHR. The issue is not directly dealt with by the Entry Clearance Officer. Looking at the unchallenged factual matrix as at the date of decision, and continuing, namely that these children have always remained part of the Sponsor’s family unit, have been assaulted by their father, excluded from school and living a restrictive life because he remains a threat to them, deprived of their education, the refusal of the application on the narrow basis of the causal link between the Appellant’s flight from Pakistan and the delayed application for asylum, provides an inadequate consideration of their position. In short it fails to take account of the best interests of the children, which, it is not challenged, are to be here with their mother. The decision also fails to pay due respect to their family and private life rights and those of their refugee mother. In those circumstances an alternative basis of application, set out in the Immigration Rules at paragraph 297 and dealing with exceptional and compelling family and other circumstances making exclusion of the children undesirable, might have been thought appropriate. In the event, as the representatives acknowledged before us the same issues are clearly encompassed within Article 8 ECHR. Further and more detailed reasoning is not required given that Mr Diwnycz acknowledged he could not resist the conclusion that the facts of the are so compelling they command entry clearance to the point that the refusals to grant the same are in breach of Article 8 ECHR, being disproportionate to the family and private life interests of the Appellants and their family.
18. For those reasons we in any event allow this appeal on Article 8 Human Rights grounds.
Decision
19. The decision of the First-tier Tribunal was vitiated by error for the reasons set out above and we have set it aside, we remake it allowing the Appellant’s appeal on Immigration Rules grounds and under Art.8 of the ECHR.
20. No anonymity direction is made.

Signed E Davidge Date 09 March 2017

Deputy Upper Tribunal Judge Davidge

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Davidge