Tribunal decisions

The decision

IAC-AH-dh-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03204/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3rd January 2017
On 8th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

Calvin burton
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms I Mahmud (Counsel)
For the Respondent: Mr D Clarke (Senior HOPO)

DECISION AND REASONS

1. This is an appeal against the determination of First-tier Tribunal Judge Buckwell, promulgated on 28th September 2016, following a hearing at Hatton Cross on 14th September 2016. In the determination, the judge dismissed the appeal of Calvin Burton, whereupon he subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a male, a citizen of Jamaica, who was born on 28th September 1968. He appeals against a decision of the Respondent dated 17th March 2016, which rejected his application for asylum and dismissed a claim on Article 8 human rights grounds. For the purpose of this hearing, only the latter, namely, the Article 8 claim is in contention.
The Appellant's Claim
3. The Appellant's claim is that he has two children who are resident in this country. The eldest, Tyannah Burton, was born on 17th June 2004. Her mother is Joyce Burton. The younger daughter is Ketsyanah Burton, and she was born on 14th June 2009. Her mother is Arlette Sita, who is French. Tyannah is British and Ketsyanah has French nationality. The judge heard evidence that Ketsyanah spends weekends and school holiday periods with the Appellant and there is a strong bond. There was a letter from her mother and school letters to confirm this. Tyannah, on the other hand, spent less time with the Appellant (see paragraph 46).
The Judge's Findings
4. The judge accepted that the consequences of the Appellant being removed to Jamaica would be that he would be "restricted to a significant degree" with respect to his ability to see Ketsyanah (see paragraph 60). The judge applied Section 117B of the 2002 Act (see paragraph 61). The judge took into account the Appellant's immigration history and observed that "the Appellant only lawfully entered this country when he had entry clearance as a spouse and following a successful appeal to the Tribunal" after he had first come to the UK as a visitor in 2001 and overstayed his visa (paragraph 62). Consideration was given to the best interests of the two minor children which had to be put in the balancing exercise with a view to the assessment of proportionality and the judge concluded that the balance of considerations fell against the Appellant and the appeal was dismissed (paragraph 64).
Grounds of Application
5. The grounds of application state that the Home Office had accepted that the Appellant had a genuine and subsisting relationship with his daughters and so it was not reasonable to expect the daughters to move to Jamaica with their father (see paragraph 44 of the determination). Second, paragraph 117B of the 2002 Act stated that
"In the case of a person who is not liable to deportation, the public interest does not require the person's removal where the person has a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect the child to leave the United Kingdom" (see sub-paragraph 6).
6. This was the situation here. There was a genuine and subsisting relationship and it would not be reasonable to expect the children to leave the UK to go to Jamaica with their father. In Treebhawon the President gave consideration to Section 117B(6) and concluded that in a case where a court or a Tribunal decides that a person who is not liable to deportation has a genuine and subsisting parental relationship with a qualifying child, and that it would not be reasonable to expect such a child to leave the United Kingdom consideration had to be given to the "public interest question", namely as to how proportionality fell to be determined.
7. What the statute makes clear is that where a person concerned is not liable to deportation; and where such person has a genuine and subsisting parental relationship with a qualifying child; and where it would not be reasonable to expect the qualifying child to leave the United Kingdom, then "within this discrete regime, the statute proclaims unequivocally that where these three conditions are satisfied the public interest does not require the removal of the Appellant from the United Kingdom". On 24th November 2016, permission to appeal was granted by the Upper Tribunal on the basis that the judge may have erred in the application of Section 117B(6) of the 2002 Act.
The Hearing
8. At the hearing before me on 3rd January 2017, Ms Mahmud, appearing on behalf of the Appellant, placed reliance upon her skeleton argument and emphasised the points that had already been made in the grounds of application. She submitted that the Respondent's representative at the hearing had accepted that the genuine parental relationship existed between the Appellant and his two daughters. In addition, "it was accepted that it was not reasonable for the Appellant's daughters to leave this country although that did not make the decision disproportionate" (paragraph 44). Furthermore at paragraph 51 of the determination the methodology with respect to the determination of the proportionality question was set out in a way that should have led to the appeal succeeding. Finally, the children were "qualifying children" in that they had been here for seven years and there was evidence of British nationality.
9. For his part, Mr Clarke submitted that the grounds overlooked the fact that the Appellant had been in the UK unlawfully from 2001 onwards, until he returned with entry clearance lawfully. In these circumstances, it is of no assistance to say that he had made a successful application before the authorities. If he had been in the UK unlawfully then he ought to have left the country to return back and make an application so that he could enter lawfully. It is at paragraph 62 that the judge addresses this issue specifically noting that
"The Appellant overstayed in this country at the end of his first stated visit in 2001. Indeed, according to the immigration history of the Appellant the Appellant only lawfully entered this country when he had entry clearance as a spouse following a successful appeal to the Tribunal" (paragraph 62).
Error of Law
10. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision and remake the decision. First, this was not a deportation case.
11. Second, there was a genuine and subsisting parental relationship with a qualifying child, because Ketsyanah, a French national, had by the time of the hearing, "been present in this country for more than seven years" (see paragraph 47) and reliance was placed before the judge to the decision in Treebhawon [2015] UKUT 00674.
12. Third, the question then was whether it would be reasonable to expect the qualifying child to leave the United Kingdom, but the Home Office Presenting Officer at the hearing had accepted that "it was not reasonable for the Appellant's daughters to leave this country..." (paragraph 44). The Presenting Officer did not accept that this made the decision disproportionate but it is difficult to see why that is the case if a genuine and subsisting parental relationship had been established between the Appellant and the children.
13. For these reasons, the decision amounts to an error of law. I proceed therefore to remake the decision on the basis of the findings now of the Immigration Judge, the evidence before him, and the submissions that I have heard today. I am allowing this appeal for the reasons that I have set out above. The decision in Treebhawon is not inconsistent with the judgment in PD (Sri Lanka) [2016] UKUT 00108 and in MA (Pakistan) [2016] EWCA Civ 705. This appeal is allowed.

Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is allowed.
No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 7th February 2017