Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01714/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 August 2016
On 26 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE APPLEYARD

Between

Enkelejda [K]
(anonymity direction NOT MADE)
Appellant
and

THE Secretary of State FOR THE Home Department
Respondent

Representation:
For the Appellant: Mr. B. Hawkin, Counsel.
For the Respondent: Mr. S. Kotas, Home Office Presenting Officer.

DECISION AND REASONS
1. The appellant is a citizen of Albania who entered the United Kingdom clandestinely in March 2012 and claimed asylum the following month at Croydon. During the period of time she was illegally in the United Kingdom she conceived a child by a British citizen and the child was born on [ ] 2015. The appellant not only pursued her claim for international protection but also she relied on Article 8 claims in relation to her British citizen child.
2. Her applications were refused by the respondent and she appealed and in a decision promulgated on 17 February 2016 Judge of the First-tier Tribunal Geraint Jones QC dismissed the appellant's appeals on asylum, Humanitarian Protection and human rights grounds.
3. The appellant sought permission to appeal which was initially refused by a First-tier Tribunal Judge but subsequently a renewed application to the Upper Tribunal was granted by Upper Tribunal Judge Perkins on 11 July 2016. The reasons he gave for so granting were:-
"1. I give permission on each ground. It is reasonably arguable that the First-tier Tribunal Judge did not have proper regard to the rights of the infant British citizen identified in the papers."
4. Thus the appeal came before me today. It is helpful to set out some of the findings of the judge. At paragraphs 19 to 25 of his decision he states:-
"19. I do not believe the appellant's account, even bearing in mind the extremely modest standard of proof applicable in asylum appeals. As a witness she was wholly unconvincing, at times evasive (for example as to why she had not claimed asylum earlier) and generally implausible. Her entire case about fearing her family in Albania is based upon an alleged subjective fear and is not based upon any evidence of any alleged threat towards her. The emphasis of her case decisively shifted from a fear of her ex-partner during the substantive interview to primarily a fear of her own family in her witness statement.
20. This is a case where section 8 of the Asylum and Immigration (Treatment of Claimants) Act 2004 is plainly relevant. That provision does not exist in a vacuum and has to be considered in the context of the whole of the relevant evidence.
21. I am in no doubt that this appellant is as manipulative as she is dishonest. I do not believe that she was in any relationship at the behest of her religious Muslim parents, outside wedlock, whilst resident in Albania. That is entirely implausible. The appellant was unable to give any significant detail about alleged quasi domestic violence save to allege that it occurred either once a week or once every other week over a period of six months. If the appellant had genuinely been in need of international protection there is no reason whatsoever why she could/should not have claimed asylum in Germany or France before taking the trouble and risk of making clandestine entry into the United Kingdom. I find as a fact that she was intent upon coming to the United Kingdom.
22. I find that once the appellant was in the United Kingdom she quite deliberately kept her head below the radar of the immigration authorities. When the appellant says that she did not claim asylum at an earlier juncture because her sister (who apparently had herself claimed asylum) did not have any chance to advise her to do so, I reject that evidence as a blatant lie. It is beyond all possible credence that two sisters, one of whom has previously made an asylum claim, would not discuss the appellant's lack of status in the United Kingdom and the manner in which she might go about obtaining status entitling her to remain in this country. They had three years in which to do so. I reject the absurd proposition that during a period of three years the appellant's sister had no opportunity to discuss such matters with her sister because she has a problem child.
23. I find as a fact that this appellant has manipulated circumstances with a view to turning them to her own advantage. She has manipulated them by waiting until such time as she has found a person with British citizenship with whom to bear a child so that she can advance her case on the basis that she has a British citizen child in this country. Indeed, this whole appeal was eventually argued on the basis that because the appellant has such a child she should not and cannot be required to depart.
24. I accept and find as a fact that the appellant has a British citizen child. That proposition is supported by the results of the DNA testing that took place - pages 17/22 of the appellant's bundle.
25. I am prepared to accept that the appellant is in a relationship with Mr [K], but I am satisfied that she entered into that relationship with the cynical intention of having a child by a British citizen, so as to enhance her prospects of remaining in this country."
5. At paragraph 28 the judge found:-
"28. I find that the appellant left Albania of her own volition and chose to come to this country clandestinely for her own social/economic purposes and chose to remain below the radar of the immigration authorities until such time as she had a British citizen child who she now cynically seeks to deploy to better her immigration position."
6. In his submissions to me Mr Hawkin particularly drew my attention to paragraphs 36 and 38 of the judge's decision which state:-
"36. Mr Nicholson makes the point that neither Kosovo nor Albania are in the EEC. It is easy to be far too precious about being in the EEC. It is true that the European Court has suggested that care should be taken before a decision is made that would result in a EEC citizen having to reside in a country outside the EEC, albeit that it has not given any persuasive reasons for that view. There would be no basis for suggesting that it would be unreasonable to expect an infant child to reside with its parents in, let us say, Australia or Canada simply because each of those countries is outside the EEC. Equally, there may well be circumstances in which it would be unreasonable to expect an infant child to reside with its parents in, let us say, Greece or Romania. One size does not fit all.
?
38. In my judgement there would be nothing unreasonable in expecting an infant whose world revolves around its parents to depart the United Kingdom to reside in the bosom of his family, even if such residence will be within a family unit in Albania or Kosovo. There was no suggestion in the evidence that Mr [K] would not accompany his partner and child if the appellant has to depart. No particular factors were highlighted to me as rendering it unreasonable that that result should flow. Instead, a much broader submission was made to the effect that it is simply unreasonable to expect a British citizen to reside in a country other than the United Kingdom or, at the very least, a country that is not within the European Union. In my judgement, that is far too broad a proposition and means adopting a rather precious view of the virtues of life in the United Kingdom or E.U."
7. In making his submissions Mr Hawkin specifically relied on the renewed grounds of appeal to the Upper Tribunal acknowledging that he pursued the issue in relation to the British citizen child alone and the error made by the judge in relation thereto. He particularly emphasised the failure of the respondent to follow her own guidance "Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0b Family Life (as a Partner or Parent) and Private Life: 10-Year Routes" where the respondent indicates that "absent criminality it would always be unreasonable to expect a British citizen child to leave the United Kingdom if the child would have to go and live in a country which was not part of the European Union."
8. It was argued that this issue was not confronted by the judge and that on the proper application of the Immigration Rules and of Section 117B(6) the appellant was entitled to succeed in her appeal.
9. Somewhat unusually post the hearing Mr Hawkin wrote to me seeking to clarify the appellant's position regarding whether or not there should be a further hearing in the Upper Tribunal or a rehearing in the First-tier Tribunal. He states that the appellant's primary submission is that her appeal should be allowed outright, as her case falls squarely within the clear wording of paragraph 11.2.3 of the Secretary of State's policy as referred to in the grounds of appeal, but if it considered that there needs to be further evidence and submissions then the appellant submits that there should be a full rehearing in the First-tier Tribunal. This letter has been copied to the respondent, but in light of the decision that I have come to regarding this appeal there is no need for me to receive further submissions from the respondent.
10. Mr Kotas argued that the failure of the judge to make reference to this guidance is immaterial. The issue is one of reasonableness. The judge has properly reasoned his findings and has not erred.
11. The first thing to say is that although Mr Hawkin himself did not pursue the ground concerning the judge's credibility findings in relation to the protection claim, I have nonetheless considered it and find that he was entitled to come to the decision that he did on the evidence that was before him and there is no flaw in those findings and they are not unsafe as is submitted.
12. Whilst the judge may not have made specific reference to the abovementioned policy of the respondent it nonetheless was open to him on the evidence to come to the conclusions that he did. In so doing he has outlined his analysis of the position at paragraphs 36 and 38 of his decision. He has also referred himself to the relevant case law and Section 55 of the Borders, Citizenship and Immigration Act 2009. He has come to a conclusion that was open to be made on the totality of the evidence and in particular, at paragraph 34 of his decision, recognises the age of the child (1 year) and the fact that his "world is his parents". It is clear that the focus of this child's life is upon his family and as such the judge was entitled to conclude that any disruption is far less serious than were the child to be older. The judge has fully explored the "reasonableness test" and has subsumed within his Article 8 analysis the position of a 1 year old British citizen child. The respondent's policy referred to above is not determinative of the appeal. The judge has concluded that the best interests of this child is a primary consideration which has to be taken into account. It is clear from the decision that this was a highly relevant factor when the judge applied the reasonableness test. The judge has focused on the child whilst embracing all aspects of the public interest. This includes the immigration history and conduct of the appellant (the child's mother).
13. The judge has acknowledged that one of the child's parents has the right to remain in the United Kingdom and it is that background against which he has carried out his assessment. The nub of the appeal was whether it was reasonable to expect the appellant's child to follow her to her country of origin given she has no right to remain in the United Kingdom.
14. The judge has given cogent and sustainable reasons which were fully open to him on the evidence for coming to his conclusion in relation to the child. There was ample justification for the adverse credibility findings referred to earlier in this decision and there has clearly been no material error of law. Ultimately, the grounds seeking permission to appeal are no more than a disagreement with the judge's findings.
15. In the context of this particular appeal it is difficult to see how the judge could have come to any other decision than the one that he did.
16. There is here no arguable error of law.
17. I do not set aside the decision.
18. No anonymity direction is made.

Signed Date 26 August 2016

Deputy Upper Tribunal Judge Appleyard