Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01436/2016

THE IMMIGRATION ACTS

Heard at: Field House
Decision & Reasons Promulgated
On: 8 November 2016
On: 9 November 2016

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

SM
(anonymity direction made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G Cutting of R C Immigration Services
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals, with permission, against the decision of the First-tier Tribunal dismissing her appeal against the respondent's decision of 1 February 2016 refusing her asylum and human rights claim.
2. The appellant is a national of Pakistan born on 23 May 1983. She last entered the UK in January 2014. Following the refusal of her application for an extension of her visa she claimed asylum in August 2015. Her asylum claim was refused. Her appeal was heard in the First-tier Tribunal on 23 August 2016 and was dismissed on asylum and human rights grounds in a decision issued on 15 September 2016. Permission to appeal to the Upper Tribunal was granted on 29 September 2016.
3. The appellant's asylum claim was based upon a previous abusive relationship in the UK with a Pakistani national who had subsequently returned to Pakistan and a fear of her former partner and her own father on return to Pakistan arising out of that relationship. It was also the appellant's claim that she had since formed another relationship in the UK with a new partner MR, with whom she had entered into an Islamic marriage, and was expecting his child. The respondent did not consider the appellant's claim to be credible and did not accept that she was at risk on return to Pakistan.
4. By the time the appellant's appeal was heard in the First-tier Tribunal she had given birth to a daughter, EMR, on 25 April 2016, and her relationship with MR was said to be over. It was not in dispute that EMR was a British citizen. First-tier Tribunal Judge Eames rejected as incredible the appellant's claim in regard to the previous abusive relationship and found that she would be at no risk on return to Pakistan. He accepted that the appellant and MR were the biological parents of EMR and that MR had some involvement with his daughter but did not accept that the appellant had a family life with MR beyond some shared child care or that MR had a subsisting family life with his daughter and did not accept the appellant's claim that MR would take legal steps to block her removing her daughter from the UK to Pakistan or that he would have any success in such an application. When considering paragraph EX.1(a) of Appendix FM of the immigration rules, the judge accepted that EX.1(a)(i) was met but did not accept that it would be unreasonable to expect the appellant's child to leave the UK for the purposes of EX.1(a)(ii). He found that the appellant could not succeed under the parent route in Appendix FM and that she could not meet the criteria in paragraph 276ADE(1) on the basis of private life and he considered that the appellant's removal would be proportionate. He dismissed the appeal on asylum and human rights grounds.
5. The appellant sought, and was granted, permission to appeal that decision, in relation only to Article 8, on the basis that the judge's finding, that it was reasonable to expect the appellant's child to leave the UK, arguably conflicted with the principles in Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09.
6. At the hearing before me, I heard submissions from both parties. Mr Cutting relied on Zambrano and ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC, as well as the Home Office guidance in the Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0b Family Life (as a Partner or Parent) and Private Life: 10-Year Routes dated August 2015, in particular with reference to the judge's findings at [102] of his decision. Mr Clarke submitted that the Zambrano point had never been raised before the First-tier Tribunal or the grounds and that, if anything, the opposite was argued since it was claimed that there was a relationship between MR and his daughter. He accepted, however, that he was in some difficulty with the second ground relating to the best interests of the child, the reasonableness of expecting the child to leave the UK and the public interest, given the Home Office's own guidance and the judge's findings at [102].
7. I have to agree with Mr Cutting that, in view of the judge's findings at [102], the Home Office guidance leaves little room for any conclusion other than that the appeal has to succeed.
8. Section 11.2.3 of the Home Office guidance states 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.
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."
9. At [102] the judge said as follows: "It is true that the daughter is British. That is a powerful factor in reasonableness terms: she has an absolute right to be in the UK and cannot exercise that right without her mother." Having found that the appellant's removal would necessitate EMR's departure from the UK, the judge's only basis for concluding that that would not be unreasonable was that EMR could return to the UK later as an adult. Clearly that was a material error and it is inconsistent with the Zambrano principles and with the Home Office's own guidance which provides that the only circumstances in which it may not be appropriate to grant leave were where the conduct of the primary carer gave rise to such weighty considerations justifying separation as criminality and a repeated breach of immigration rules. Whilst the appellant had presented an asylum claim that was not found to be credible, Mr Clarke was, quite properly, reluctant to conclude that that would fall within those weighty considerations.
10. In accordance with the terms of the Home Office's own guidance, it seems to me that, on the basis of the findings made by the judge as to the limited relationship between EMR and her father, and his findings at [102], it must be concluded that it would be unreasonable to expect EMR to leave the UK. Accordingly, the criteria in EX.1(a)(ii) have been met and, following the undisputed conclusion of the judge at [101] in regard to the other criteria in section R-LTRPT.1.1, the appellant is able to meet the requirements for leave to remain as a parent under Appendix FM. The appeal is therefore allowed on human rights grounds under the immigration rules.

DECISION
11. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. The decision is set aside and is re-made by allowing the appellant's appeal on human rights grounds.
Anonymity
The First-tier Tribunal made an order pursuant to rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008).

Signed

Upper Tribunal Judge Kebede