Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/01764/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29 July 2016
On 15 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE STOREY

Between

Secretary of State for the Home Department
Appellant
and

S Z
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Ms Z Ahmed, Home Office Presenting Officer
For the Respondent: Mrs Shaw, Counsel instructed by Corbin & Hassan

DECISION AND REASONS
1. The respondent (hereafter the claimant) is a citizen of China. On 30 September 2015 the appellant (hereafter the SSHD) made a decision to remove him. The claimant's subsequent appeal came before First-tier Tribunal (FtT) Judge Greasley who on 25 May 2016 allowed his appeal on human rights grounds.
2. The SSHD's grounds of appeal are essentially threefold. First it was alleged that the judge had failed to consider the Article 8 claim through the prism of the Rules and had not anywhere shown an understanding that the relevant test was one of compelling circumstances. Second, it was submitted that the judge failed to apply correctly the consideration set out in s.117B of the Nationality, Immigration and Asylum Act 2002 concerning the attachment of little weight to relationships developed whilst a person's immigration status is precarious. Third, the SSHD argued that the FtT judge had failed to engage with case law principles on the best interests of the child.
3. I am indebted to Ms Ahmed and Mrs Shaw for their submissions.
4. I am satisfied that the judge materially erred in law. First, the judge wholly failed to show that he had applied established case law principles. Despite noting at [54] that the appellant could not succeed under the eligibility criteria set out within Appendix FM, the judge nowhere identified the relevance of this failure to the issue of the weight to be attached to the public interest. Neither did the judge anywhere show an understanding that what the appellant had to show was the existence of compelling or exceptional circumstances.
5. Second, the judge's treatment of the matter of the immigration status of the claimant, his wife and daughter betrays legal error. For one thing the first sentence [60]: "although the above provisions indicate that little weight should be given to the private life interests when immigration status is precarious, this does not mean that no weight should be given" appears to state that because little weight is not the same as no weight this serves as a justification for him going on to give great weight to the claimant's private life.
6. However, for another thing the judge appears to have attached very significant weight to the fact that the claimant's wife and children have been granted DL until March 2017 and "I have not received any evidence, and nor has any formal indication been given, which might suggest that such DL would not continue beyond March 2017". It is difficult to see how DL is a status which for the purposes of s.117B must be considered as precarious: see AM (s.117b) Malawi [2015] UKUT 0260 (IAC).
7. Mrs Shaw sought valiantly to persuade me that it was entirely rational assumption for the judge to attach signficant weight to the DL because from September 2016 the couple's oldest child would have been in the UK seven years and so the claimant would have a fresh legal basis of stay under the Immigration Rules and s.117B(6). Ms Ahmed's response was to point out that both under s.117B(6) and the corresponding Immigration Rule, there is a requirement that in addition to there being a "qualifying child" "it would not be reasonable to expect the child to leave the UK. It was not established, submitted Ms Ahmed, that the claimant would be able to succeed under either provision. For Mrs Shaw this was not a strong point because the judge had accepted that the children could not be returned to China because it was recorded at [28] that:
"The appellant stated he illegally departed China in 2000 which meant that he would be imprisoned if returned. He was also in breach of the family planning policy in China as he had three children and he would not be able to add them to the family household register which would prevent them from attending school."
However at [42]-[43] the judge rejected the claimant's asylum and Article 3 claims based on China's family planning policy.
8. This brings me to the third reason I have for concluding that the judge materially erred in law. It is clear from established case law principles that assessment of the best interests of the child requires a balancing exercise taking into account not just the situation of the children in the UK but the likely circumstances the child would face if returned with the parent or parents. The FtT judge failed to deal at all with the latter scenario. I do not consider that the factors identified by the judge at [57] establish a proper balancing of the relevant factors. For example there is no reference to the children's cultural or linguistic ties with China or the likely schooling situation they would face on return.
9. For the above reasons I conclude that the judge materially erred in law. I was asked by Mrs Shaw to consider (if I found a material error of law) remitting the case to the FtT. Ms Ahmed submitted the case could be retained in the Upper Tribunal. On reflection, I have decided to remit the case to the First-tier Tribunal as it seems to me that the failure of the judges to connect together in any rational way the negative findings on the asylum and Article 3 and the findings on Article 8 (and the best interests of the child) effectively mean the case will need to be heard afresh on all grounds. It also seems to me that notwithstanding the SSHD's decision to grant DL to the claimant's wife and children, there remain serious questions about whether the claimant and his wife have both given a candid account of their family circumstances before they came to the UK. In any event, it seems necessary that the First-tier Tribunal look afresh at the evidence, with particular focus on whether the claimant and his wife and two children, P and K, would be able to reintegrate in China without very significant obstacles.
Notice of Decision
The First-tier Tribunal judge materially erred in law and his decision is set aside.
The case is remitted to be heard by the FtT not before Judge Greasley.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date: 8 August 2016

Dr H H Storey
Deputy Judge of the Upper Tribunal