Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03126/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10th August 2016
On 31st August 2016

Before

UPPER TRIBUNAL JUDGE T KAMARA
DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

PETER [P]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Ghana born on 15th January 1986. The Appellant has an extensive immigration history. He was first encountered on 12th June 2006 by the Metropolitan Police and questioned as to his identity. The Appellant could not confirm how he had entered the UK or how he had supported himself for the previous six years but claimed to have arrived in the UK in 2000 and had never made any attempt to regularise his stay. He was served with form IS151A notice as an illegal entrant.
2. On 8th October 2008 the Appellant was convicted of using threatening and abusive behaviour with intent to cause fear or provocation of violence and was given a caution. He received a further caution in November 2013 after a conviction of possession of a class B controlled drug. On 25th June 2014 he was convicted of burglary and theft and sentenced to twelve months' imprisonment suspended for 24 months.
3. On 11th September 2014 the Appellant was served with notices requiring him to submit any reason why he believed he should remain in the UK and he submitted his daughter's birth certificate. There was no evidence that the Appellant was living with, or supporting, the child. His claim was refused with an in-country right of appeal, however the Appellant did not take the opportunity to appeal.
4. On 9th July 2015 he was detained on reporting pending removal from the UK and on 14th July confirmation was received of family separation. On 23rd July 2015 the Appellant formally claimed asylum on the basis that the Appellant asked to be recognised as a refugee with a well-founded fear of persecution in Ghana on the basis of the fact that he did not have any family members in Ghana. That application was refused by the Secretary of State on 11th November 2015.
5. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Cary sitting at Taylor House on 18th March 2016. In a decision and reasons promulgated on 29th April 2016 the Appellant's appeal was allowed on human rights grounds.
6. On 29th April 2016 the Secretary of State lodged Grounds of Appeal to the Upper Tribunal. Those grounds contended that by allowing the appeal under paragraph 117B(6) following Treebhawon [2015] UKUT 00674 the Tribunal had erred in law.
7. On 25th May 2016 First-tier Tribunal Judge Davidge refused permission to appeal. Renewed Grounds of Appeal were submitted by the Secretary of State on 14th June 2016. Those grounds re-asserted the original grounds, but also made reference to the fact that the First-tier Tribunal had failed to follow the decision of PD and Others [2016] UKUT 00108.
8. On 27th June 2016 Upper Tribunal Judge Keki? granted permission to appeal. Those grounds noted that the Appellant was an illegal entrant with a criminal conviction but that no deportation order had been made. They noted that the judge had given weight to the Appellant's relationship with his daughter and took guidance from Treebhawon but that it was arguable that the relationship was insufficient for a successful Article 8 claim and that the judge arguably had failed to consider all the other factors in Section 117B which he was required to do and had failed to consider the decision of PD [2016] UKUT 00108.
9. It is on that basis that the appeal comes before us to determine initially whether there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears in person. He advises that he can no longer afford legal representation. The Secretary of State appears by her Home Office Presenting Officer Mr Jarvis. We note that this is an appeal by the Secretary of State but for the purpose of continuity throughout the appeal process, the Secretary of State is referred to herein as the Respondent and Mr [P] as the Appellant.
10. It is noted that the issues before the Tribunal are matters of law rather than matters of fact. The historical basis of this appeal is not in dispute. Mr [P] is a litigant in person. We explained to him the process that would be followed and he indicated his understanding. We advised that following submissions made by Mr Jarvis, we would listen to anything he had to say without interruption and take it into account.
The Law
11. It is useful herein to set out the relevant law that we are asked to consider. The statutory authority is to be found in Section 117B of the Nationality, Immigration and Asylum Act 2002. Whilst the predominant Section is paragraph 117B(6) the whole Section is of relevance:-
"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".

The Grounds of Appeal
12. The submission of the Secretary of State is that the Tribunal erred in law in allowing the appeal under paragraph 117B(6) following Treebhawon [2015] UKUT 00674. That case analysed Section 117B(6) and found that it was a reflection of the distinction which Parliament has chosen to make between persons who are, and who are not, liable to deportation. In any case where the conditions enshrined in Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 are satisfied, the Section 117B(6) public interest prevails over the public interests identified in Section 117B(1) - (3).
13. That approach was subsequently disapproved of in PD and Others [2016] UKUT 00108. The Tribunal found:-
"If and insofar as the application of 117B(6), where it arises, requires a more elaborate and comprehensive exercise in certain cases than that which was considered sufficient in the particular context of Treebhawon, we refer to our analysis of the Part 5A regime above and, having done so, conclude that Section 117B(6) should prevail, on the grounds and for the reasons elaborated extensively".
14. Therefore, the argument put by the Secretary of State as a matter of law is that Section 117B is not a self-contained, discrete provision that is determinative of the public interest question, let alone the broader question of whether there has been a disproportionate, and so unlawful, interference with rights protected by Article 8(1) of the ECHR. It is one of the considerations to which regard must be had in making that assessment, and certainly it is a powerful consideration, but not one that excludes considerations of any matter that indicates that the public interest does require the Appellant's removal, despite that not being required simply on account of the absence of leave to remain.
Submissions/Discussion
15. Mr Jarvis acknowledges that the Appellant has a British citizen daughter born on 5th August 2012. However, he submits that following the current case law the correct approach when carrying out an assessment under Section 117B(6) is a proportionality assessment and not one solely centred on the rights of the qualifying child. He refers us to the recent authority of MA (Pakistan) and Others, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) and Another [2016] EWCA Civ 705. He consequently submits that by following Treebhawon at paragraphs 37 to 40 the Tribunal is wrong and that the judge has materially erred in his assessment.
16. We invited comment from the Appellant. He indicated that he would uphold his leave to remain and that he wanted to support his partner and child. He produced a letter from the Social Services which related to the adoption of his son but we acknowledge that whilst this letter was produced it does not add anything to the Appellant's appeal.

Findings of Error of Law
17. The judge erred in his approach to Section 117B as a whole. He followed the guidance given in Treebhawon which has now been superseded by the approach adopted in PD and MA (Pakistan). Proportionality is not a discrete item and the approach that should be adopted on Article 8 ECHR claims involving multiple family member decision makers is to apply the Immigration Rules to each individual applicant and then consider Article 8 outside the Rules. All material facts and considerations must be taken into account and it is inappropriate to look at the position solely restricted to the position of the relevant child. In such circumstances the judge materially erred in law and we set aside the decision.
Re-making the Decision
18. Despite the representations of Mr Jarvis who relies on the substantive findings of the First-tier Tribunal Judge and his skeleton argument, having given full and due further consideration to this matter we preserve the findings of the relationship that the Appellant has with his partner and daughter and now re-apply the considerations taking into account all the up-to-date relevant case law.
19. Having carried out such considerations and due analysis we remain of the view that the factual conclusions made by the First-tier Tribunal Judge at paragraph 40 remain correct and that the public interest does not require the Appellant's removal from the United Kingdom and that such removal would be disproportionate. In reaching that decision we take into account the Appellant's failure to meet the Immigration Rules, his poor immigration history and time spent as an overstayer, the factual detail of his offending history and all the considerations required in Section 117B of the 2002 Act. In such circumstances, we re-make the decision allowing the appeal on human rights grounds.
Notice of Decision
The Appellant's appeal is allowed on human rights grounds.

No anonymity direction is made.

Signed Date 25th August 2016

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date 25th August 2016

Deputy Upper Tribunal Judge D N Harris