Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number:
PA/00116/2015

THE IMMIGRATION ACTS

Heard at: Liverpool
Decision Promulgated
On: 31st January 2017
On: 27th February 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

The Secretary of State for the Home Department
Appellant

And

Adnan [J]
(No anonymity direction made)
Respondent

For the Appellant: Mr McVeety, Senior Home Office Presenting Officer
For the Respondent: Mrs Stull, Counsel instructed by Lloyds Solicitors

DETERMINATION AND REASONS

1. The Respondent is a national of Pakistan born on the 3rd March 1989. On the 10th August 2016 the First-tier Tribunal (Judge AK Simpson) allowed his appeal on human rights grounds1. The Secretary of State was granted permission to appeal against that decision on the 2nd September 2016 by First-tier Tribunal Judge O'Garro.

Background and Matters in Issue

2. The case before the First-tier Tribunal was that the Respondent's removal from the United Kingdom would be a disproportionate interference with his Article 8 right to a family life. The factual matrix accepted by the First-tier Tribunal was as follows:

i) The Respondent is lawfully married to NR, a Yemeni national who has had Indefinite Leave to Remain (ILR) in the United Kingdom since 2010;

ii) They have been married since November 2015;

iii) NR is in full-time employment as a nursery nurse;

iv) She earned before the Minimum Income Requirement (MIR) set out in Appendix FM of the Immigration Rules;

v) At the date of the appeal they were expecting their first child;

vi) Even if it could be assumed that the Pakistani authorities would grant entry clearance to NR, she would likely encounter "severe obstacles" in relocating there due to language and cultural issues;

vii) There are particular reasons why the Respondent cannot simply return to Pakistan to make an application for entry clearance as a spouse. These are that NR is at risk of "honour" based violence from her own family in the United Kingdom. Both Cheshire Constabulary and Greater Manchester Police have been involved in her protection in the recent past because of attempts by her family to remove her from the jurisdiction and force her into marriage in Yemen. If the couple were separated - even temporarily - this would leave NR vulnerable to a serious risk of further harassment from her family.

3. Having regard to those facts the First-tier Tribunal dismissed the Article 8 case with reference to the Immigration Rules. Although not stated in terms this was presumably because the couple could not meet the MIR and the Tribunal was not satisfied that the obstacles they would face in Pakistan could be said to be "insurmountable": the finding at paragraph 37 that NR would face "severe" obstacles would not on the face of it be sufficient to meet the high test inherent in EX1. However, having had regard to all of the factors set out above, the Tribunal was satisfied, on the unusual facts of the case, that removal would be disproportionate and allowed the appeal with reference to Article 8 'outside of the Rules'.

4. The Secretary of State's grounds of appeal are dated 22nd August 2016. That date is relevant for two reasons. First, it was before the birth of the couple's daughter, who was delivered at hospital in Manchester on the 18th September 2016. Before me Mr McVeety accepted that this child was British, having been born to a mother with ILR. Second, the grounds were also drafted without the benefit of the decision of the Supreme Court in R (on application of MM (Lebanon)) v Secretary of State for the Home Department (FC) [2017] UKSC 10. Although that decision was not available at the date of the hearing, for the reasons set out below I have not considered it necessary to invite the parties to make any further submissions.

Error of Law

5. At the hearing I indicated that the Secretary of State had succeeded on one ground only. That was in respect of her complaint that in drafting its determination the First-tier Tribunal had omitted to make any reference, express of implied, to the public interest factors delineated in s117B of the Nationality, Immigration and Asylum Act 2002. That was an error of law sufficient to warrant setting aside of the decision, with its facts preserved.

6. The remaining grounds were without merit. The Secretary of State complained that there was no consideration in the determination of the Immigration Rules, or whether there were insurmountable obstacles to the couple's relocation. In respect of the former, that is because it appeared to have been agreed that the requirements of the Rules could not be met. The Tribunal was plainly aware that this was the starting point for its Article 8 deliberations. In respect of the latter, the requirement at EX.1 to show 'insurmountable obstacles' is not, and never has been, determinative of proportionality outside of the Rules. As I note above the Tribunal found there to be "severe" obstacles but stopped short of finding these to be "insurmountable".

7. Reliance is further placed on the Court of Appeal decision in SS (Congo) [2015] EWCA Civ 387 to the effect that the appeal could only be allowed on exceptional and compelling grounds. At the hearing I indicated that I did not find that ground to be made out, because on the facts as found, the Tribunal's conclusions that this was a case both exceptional and compelling was rationally open to it. The subsequent verdict in the Supreme Court, which unanimously allowed the appeal of SS, adds nothing to that.

The Re-Made Decision

8. Section 19 of the Immigration Act 2014 introduced amendments to the Nationality Immigration and Asylum Act 2002. In particular it inserted a series of public interest factors that must be considered by decision-makers when assessing Article 8 claims. In cases not involving any criminality (such as this one) those factors are set out in s117B:

117B Article 8: public interest considerations applicable in all cases

(1) The maintenance of effective immigration controls is in the public
interest.

(2) It is in the public interest, and in particular in the interests of the
economic well-being of the United Kingdom, that persons who seek to
enter or remain in the United Kingdom are able to speak English,
because persons who can speak English-

(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.

(3) It is in the public interest, and in particular in the interests of the
economic well-being of the United Kingdom, that persons who seek to
enter or remain in the United Kingdom are financially independent,
because such persons-

(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.

(4) Little weight should be given to-

(a) a private life, or
(b) a relationship formed with a qualifying partner,

that is established by a person at a time when the person is in the United
Kingdom unlawfully.

(5) Little weight should be given to a private life established by a person at
a time when the person's immigration status is precarious.

(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.

9. MA (Pakistan) [2016] EWCA Civ 705 the Court of Appeal held that an appellant who can show that he or she meets the requirements in sub-section (6) must succeed in an Article 8 appeal. The Court held, albeit with some reluctance, that in the evaluation of the term 'reasonable' in s117B(6)(b) must be evaluated with regard to all relevant factors: not just those pertaining to the child but also any matters arising in respect of the parents at (1)-(5).

10. At the date of the appeal before me the Respondent has a genuine and subsisting parental relationship with his British daughter. That is not in issue. As to whether it would be reasonable to expect this child to leave the United Kingdom I must consider, in accordance with MA (Pakistan) the following matters. Her father cannot meet the requirements of the Immigration Rules set out in Appendix FM because her mother does not earn enough in her role as a teaching assistant in a nursery. It is in the public interest that immigration control is effective. The Respondent can speak fluent English. His presence in the United Kingdom has led to no additional recourse to public funds. I remind myself that the couple have not however met the MIR set out in E-LTRP.3.1 of Appendix FM. I am told, and have no reason to doubt, that the Respondent is willing and able to work in order to support his wife and child. Little weight must be attached to the private life that he has established in the United Kingdom since he arrived, since his status has at all times been precarious.

11. I further weigh in the balance the following matters. This child is nursing and it would be wholly contrary to her best interests to be separated from her mother. If the child was to travel to Pakistan with her father, her mother would also have to go. The First-tier Tribunal has already made unchallenged findings of fact that the child's parents would face "severe obstacles" in relocating to Pakistan.

12. I must also have regard to the fact that this child is British. In her published guidance2 the Secretary of State gives the following instructions to caseworkers considering the question 'is it reasonable for a British child to leave the United Kingdom?' [at 11.2.3]:

"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 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 the EU"

(emphasis added).

13. Mrs Aboni accepted that there was no criminality in this case. Nor were there any indications of breaches of immigration control, nor attempts at the same. I note that in respect of his protection claim the First-tier Tribunal had accepted that the Respondent had left the Swat valley in order to avoid the adverse attention of the Taliban; his claim had failed on current risk and internal flight grounds. I do not find there to be any countervailing factors that would justify the Respondent's separation from his child.

14. Having considered all of these factors I find, in accordance with s117B(6) and the Secretary of State's published guidance, that it would not be in the public interest for the Respondent to be removed. His appeal must be allowed.

Decisions

15. The determination of the First-tier Tribunal is set aside to the limited extent identified above. I re-make the decision in the appeal by allowing the appeal on human rights grounds.

16. I was not asked to make an anonymity order and on the facts I see no reason to do so.

Upper Tribunal Judge Bruce
23rd February 2017