Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01136/2017

THE IMMIGRATION ACTS

Heard at North Shields Decision and Reasons Promulgated
On 23rd April 2018 On 30th April 2018

Before

DEPUTY JUDGE UPPER TRIBUNAL FARRELLY

Between

A S
(ANONYMITY DIRECTION MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Ms L Mair of Duncan Lewis and Co, Solicitors
For the respondent: Mr Diwnycz, Home Office Presenting Officer

DETERMINATION AND REASONS
Introduction

1. The appellant is a national of Iraq born in May 1978. She is a mother of [E] born in October 2014 and [A], born in April 2016. They were originally linked to of her claim for protection but subsequently it has been accepted they are British nationals with a right to reside and so no longer are party to the proceedings.

2. She made a claim for protection on the basis she is a member of a particular social group. This is as a possible victim of a so-called honour attack from her own family because of her marriage to Mr IJ. He is originally from Iraq, came to the United Kingdom in 2000, and claimed protection. That claim was unsuccessful but in 2007 he was naturalised.

3. He travelled backwards and forwards between the United Kingdom and Iraq and in January 2011 met the appellant, with their marriage taking place in February 2012. Thereafter, he continued travelling between the two countries.

4. The appellant claims that her own family did not want her to come to the United Kingdom to be with her husband and because she disobeyed them they, particularly her elder brother, will harm her.

5. Her claim was rejected by the respondent. The respondent was not satisfied with the documentation provided and did not accept that the appellant was married as claimed. Similar considerations applied in respect of her children and their nationality. Her fear of her brother was not accepted. In any event, there was sufficiency of protection for the appellant in Iraq and she could avoid difficulties from her brother by relocating.

The First tier Tribunal

6. Her appeal was heard by First-tier Judge Tobin at Manchester on 14 July 2017. In a decision promulgated on 8 August 2017 her claims were rejected. At hearing it was clarified that the particular social group related to women in Iraq. The judge was advised that the appeals in respect of the children were no longer live and copies of their British passports were submitted.

7. At paragraph 23 the judge pointed out that the appellant's husband had not attended the hearing. The judge found this to be significant; pointing out that he could have provided evidence about the claimed threat from his brother-in-law. Because of this the judge said no weight was being placed upon his statement. Regarding the appellant's difficulties in Iraq, the judge found her to be evasive and lacking in credibility. The judge found the threat from her brother was not credible.

8. At paragraph 38 the judge noted that both children are British citizens and referred to the respondents instructions to caseworkers. However, at paragraph 47 the judge concluded she and her children could return to Iraq as a family unit and that no breach of article 8 would occur. The judge recorded the position of the children's father was uncertain as he had not attended the hearing and no explanation was proffered.

The Upper Tribunal

9. Permission to appeal was granted on grounds which included a submission that the judge failed to appreciate issues agreed between the parties in relation to the appellant's husband and article 8.

10. The respondent's rule 24 response states that the presenting officer at the hearing did not have a note about what was agreed.

11. At hearing, Ms L Mair was able to provide me with a statement from Counsel who originally appeared for the appellant. It indicates that there was a discussion at the outset before the judge about the article 8 claims and the fact it was now established the children held British nationality. The statement records that the presenting officer confirmed that the claimant should succeed on article 8 grounds. The statement records the judge, in light of this, asked the representatives whether the claim for protection was being pursued.

12. When this was still pursued time was allowed following concerns expressed by the judge as to whether a Convention reason was engaged. The statement records that the appellant's husband was in attendance. Given the outstanding issue related to the protection claim it was decided that he would not be called as a witness. The statement records that this was discussed with the presenting officer. The appeal proceeded with the appellant only giving evidence in relation to the protection claim.

13. The presenting officer, Mr Diwnycz, acknowledged there was no note on file from the presenting officer as to what had taken place but he did not dispute the note provided by Counsel. Ideally, First-tier Judge Tobin should have been invited to comment on Counsel's statement. However, both parties today are in agreement that there has been an understanding, at least between the representatives ,that the claim would most likely succeed on article 8 and the focus at hearing was upon the protection claim.

Error of law

14. I find a material error of law has been established on procedural grounds as to how article 8 was dealt with. The judge is not required to accept an agreement between the parties as to the disposal of an appeal but should make the parties aware of this. In this instance it is accepted by the parties that what was thought to be agreed and accepted by the judge was not reflected in the decision. It may be that with the break-in proceedings the earlier understandings were overlooked when the matter resumed. This could explain the judge's comments about the appellant's husband not giving evidence and the adverse inference drawn.

15. Mr Diwnycz accepts the relationship between the appellant and her husband is as claimed. The children have British passports. The appellant is now expecting her third child. Mr Diwnycz indicated he would not be seeking to resist the article 8 claim.

16. I asked Ms L Mair if the protection claim was being pursued in light of the presenting officer's view. I allowed her time to consult with her client. She then indicated that the only issue being pursued was in relation to article 8.

Remaking the decision.

17. SF and others (Guidance, post-2014 Act) Albania [2017] UKUT 00120 (IAC) has been cited. It refers to the Immigration Directorate Instruction - Family Migration - Appendix FM, Section 1.0(B) "Family Life as a Partner or Parent and Private Life, 10 year Routes". It contains guidance at 11.2.3: `Would it be unreasonable to expect a British Citizen Child to leave the UK?' It provides:

"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.
The circumstances envisaged could cover amongst others:
- criminality falling below the thresholds set out in paragraph 398 of the Immigration Rules;
- a very poor immigration history, such as where the person has repeatedly and deliberately breached the Immigration Rules.
In considering whether refusal may be appropriate the decision maker must consider the impact on the child of any separation. If the decision maker is minded to refuse, in circumstances where separation would be the result, this decision should normally be discussed with a senior caseworker and, where appropriate, advice may be sought from the Office of the Children's Champion on the implications for the welfare of the child, in order to inform the decision."
18. New Instructions were issued on 22nd February 2018.It has not been argued they make any difference to the present appeal. The appellant is the mother of two young British children. She is currently pregnant with her third child. It is likely if she had to leave the country then she would take the children with her. There is no challenge to her being in a genuine and subsisting relationship with her children. There is no challenge to her relationship with her husband. The conditions in her home country were raised and the difficulty a lone female would face. All of these factors lead to the conclusion that removal would be a disproportionate interference with the appellant's article 8 rights.

Decision

A material error of law has been established in the decision of First-tier Judge Tobin. I remake the decision allowing the appeal on article 8 grounds only.

Francis J Farrelly
Deputy Upper Tribunal Judge

Dated 26 April 2018