PA/14048/2016

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The decision




Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/14048/2016

THE IMMIGRATION ACTS

Heard at North Shields Decision Promulgated
On 24th November 2017 On 19th December 2017


Before


DEPUTY UPPER TRIBUNAL JUDGE FARRELLY


Between


MR.P A Q
(ANONYMITY DIRECTION MADE)
Appellant

And


SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mrs Cleghorn, Counsel, instructed by Miles Hutchinson & Lithgow
For the Respondent: Mr Mills, Home Office Presenting Officer

DETERMINATION AND REASONS

1. The presenting officer, Mr Mills, concedes that the grounds argued in relation to article 8 and the Zambrano principal are valid. Ms Cleghorn, for the appellant, in turn accepts the judge's findings in relation to the rejection of the underlying claim under the Refugee Convention.

2. The judge erred in law at paragraph 70 in rejecting the claim made on Zambrano principles on the basis the factual matrix did not engage European Treaty provisions.

3. The appellant is the primary carer of her son who was born on the 22nd March 2017. He is entitled to British citizenship through his father. It is likely that if the appellant were removed she would take her child with her, thus depriving him of the benefit of his British nationality. SF (Guidance, post 2014 Act) Albania [2017] UKUT 00120 states the tribunal ought to take the respondent's guidance into account. The respondent's guidance on appendix FM at 11.2.3 is that the decision maker must not take a decision which means the British child would have to leave save in cases of criminality. This does not apply here. Section 117B (6) of the 2002 Act applies in relation to the public interest.

4. I set aside the decision of First-tier Judge Hands and remake it, allowing the appeal under article 8. I preserve the adverse credibility findings in respect of the underlying claim and maintain the refusal of asylum for the reasons summarised at paragraph 46 of the decision. No challenge is being made to the findings on humanitarian protection.

Decision

The decision of First-tier Judge Hands materially errs in law in respect of article 8 and is set aside. The other findings are maintained. I remake the decision allowing the appeal under article 8.



Deputy Judge Farrelly of the Upper Tribunal