Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/09776/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 January 2017
On 27 January 2017

Before

Deputy Upper Tribunal Judge Pickup

Between

MDQ
[No anonymity direction made]
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the appellant: Mr A Masood, instructed by Aden & Co Solicitors
For the respondent: Mr S Staunton, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant, MDQ, date of birth 30.3.82, is a citizen of Somalia.
2. This is his appeal against the decision of First-tier Tribunal Judge Blake promulgated 30.11.16, dismissing on all grounds his appeal against the decision of the Secretary of State, dated 30.8.16, to refuse his protection claim.
3. The Judge heard the appeal on 19.10.16.
4. First-tier Tribunal Judge Osborne granted permission to appeal on 22.12.16.
5. Thus the matter came before me on 20.1.17 as an appeal in the Upper Tribunal.
Error of Law
6. In the first instance I have to determine whether or not there was an error of law in the making of the decision of the First-tier Tribunal such that the decision of Judge Blake should be set aside.
7. The grounds assert that the First-tier Tribunal failed to give adequate weight to the evidence in relation to the appellant's contact and level of involvement and family life with his daughter. It is asserted that the judge took irrelevant matters into account between [142] and [147] of the decision. It is asserted that the judge failed to make clear and adequate findings on the appeal under the Immigration Rules based on the appellant's relationship with his daughter. It is asserted that she failed to make conclusions on family life and failed to consider the exceptional circumstances and relevant case law in relation to article 8 outside the Rules.
8. In granting permission to appeal, Judge Osbourne considered it arguable that in an otherwise careful and detailed decision the First-tier Tribunal Judge erred in fact and law when at [160] she accepted the that appellant and his daughter had some contact but considered that it could be maintained through modern communication. "Having found that the appellant and his daughter exercised direct contact, the judge arguably failed to explain how such contact could be maintained through modern communication. In that respect the judge arguably erred in law and therefore arguably erred in the assessment of what was in the best interests of the child."
9. The Rule 24 response, dated 9.1.17, submits that it was open to the judge to conclude that the very limited relationship and contact between the appellant and his daughter could be maintained through modern means of communication. It was also noted that the appellant's wife had previously returned to Somalia, so it was open to the parties to arrange some form of occasional face to face contact.
10. It is submitted that on the particular facts found in this case, it was open to the judge to conclude that there were no compelling circumstances to warrant consideration of article 8 outside the Rules. In reaching this conclusion, the judge took section 55 best interests of the child into account, and bore in mind that the child lived with her mother and had done so since birth. It is submitted that the findings were open to the judge on the evidence and no material error of law has been demonstrated.
11. It is clear from the decision that the First-tier Tribunal made a series of more than adequately reasoned adverse credibility findings against the appellant in respect of the core of his asylum claim. He was clearly untruthful.
12. The appellant was no longer in any relationship with the mother of his daughter, or any other partner.
13. It is also clear from [146], [158] and [159] that there was no significant contact between the appellant and his daughter prior to 2014. Thereafter, his contact was limited and at the highest amounted to taking her out occasionally and took her to the mosque. The judge found the partner's evidence not entirely credible. It follows that on the findings of the First-tier Tribunal the contact between the appellant and his daughter was very limited.
14. At [160] the judge concluded that there was no family life between the appellant and his daughter and at [163] did not find any exceptional circumstances to warrant consideration of article 8 outside the Rules.
15. The judge referenced the Rules and the Secretary of State's consideration at [163]. For the reasons set out below, I find she was not in error in not specifically considering article 8 family and private life under the Immigration Rules, pursuant to Appendix FM and paragraph 276ADE.
16. Mr Masood argued that the appellant could meet the requirements of EX1 under Appendix FM. However, the appellant does not meet E-LTRPT 2.4 which requires the appellant to prove that he is taking and intending to continue to take an active role in the child's upbringing. On the facts as found by the First-tier Tribunal, the appellant was taking no role in the child's upbringing. Without meeting this requirement, EX1 does not apply. Mr Masood appeared to be referring to a version of the Immigration Rules not in force at the date of the hearing of the appeal. It follows that even if there was an error in this regard, it was not material, as it is clear that the appellant could not meet the requirements of the Rules.
17. However, this failure is highly relevant to any consideration of article 8 outside the Rules that provision is made for family life within the Rules; they are the Secretary of State's proportionate response to private and family life rights and provide for leave to remain where there is a sufficiently genuine and subsisting relationship with a qualifying child.
18. It follows that the appellant was driven to make the case that outside the article 8 regime of the Rules, his compelling circumstances demand that the appeal be allowed on the basis that the impugned decision be allowed on the basis that the decision of the Secretary of State infringes his rights and the rights of his daughter under article 8 ECHR. That the governing test is compelling circumstances has been confirmed recently by the Court of Appeal in Rhuppiah v SSHD [2016] EWCA Civ 803.
19. A decision to subject any appeal to the test of 'compelling circumstances' proceeds, logically, on the basis that the first four of the five Razgar stages have all been overcome.
20. The judge may have been in error in finding that there was no family life at all between the appellant and his daughter, but she was certainly correct to take into account the very limited nature of the family contact between father and daughter.
21. It is also likely that the decision interferes with family life, even with the limited contact the appellant has with his daughter. However, it is arguable as to whether on the facts of this case the interference with family life that would be occasioned by his removal was sufficiently grave so as to engage article 8 ECHR. Even on the basis that article 8 is engaged, the limited nature of contact would have to be put into the scales in the proportionality balancing exercise, as well as the section 55 duty to have regard to the best interests of the child, which is a primary but not paramount consideration that trumps all others.
22. The judge was also in error in referring to 'exceptional circumstances,' rather than compelling circumstances. However, considering the evidence, I am far from satisfied that on the facts of this case as found by the First-tier Tribunal that there could be any sufficiently compelling circumstances that are insufficiently recognised in the Immigration Rules so as to justify consideration of allowing the appellant to remain in the UK outside the Rules on the basis that the decision infringes the appellant's family life rights with his daughter under article 8 ECHR, so that otherwise the decision of the Secretary of State would be unjustifiably harsh.
23. Even if the judge had gone on to conduct an article 8 ECHR Razgar stepped proportionality assessment outside the Rules, I am satisfied that she would have had to conclude, for the same reasons as given above, that the decision of the Secretary of State was entirely proportionate and not disproportionate to the rights of the appellant and his daughter, particularly taking into account the Rule 24 submission that there was no reason why there could not be visits to Somalia by the daughter, or indeed occasional visits by the appellant to visit his daughter in the UK. In the modern age for work and other reasons many families live far apart around the world, but still maintain family life with other members through occasional visits and modern means of communication. Mr Masood sought to rely on Omotunde (best interests Zambrano applied - Razgar) Nigeria [2011] UKUT 00247 (IAC), but in that case there was an active parent with a far greater involvement in the life of the child than in the present case. It is not authority for the proposition that a person with very limited and occasional contact with a child in the UK should be granted leave to remain on that ground alone.
24. In all the circumstances, whilst there are some errors in the decision of the First-tier Tribunal, they are not material to the outcome, which frankly on the facts of this case was inevitably a dismissal of the appeal.
Conclusions:
25. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law such that the decision should be set aside.
I do not set aside the decision.
The decision of the First-tier Tribunal stands and the appeal remains dismissed on all grounds.

Signed

Deputy Upper Tribunal Judge Pickup

Dated

Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal made an order pursuant to rule 13(1) of the Tribunal Procedure Rules 2014.
Given the circumstances, I continue the anonymity order.
Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award pursuant to section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007.
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: No fee is payable and thus no fee award can be made.

Signed

Deputy Upper Tribunal Judge Pickup

Dated