Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00026/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 April 2017
On 25 April 2017

Before
UPPER TRIBUNAL JUDGE FINCH

Between
LULZIM SELIMaj
(aka lulzim selimi)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms A. Fijiwala, Home Office Presenting Officer
For the Respondent: Mr. R. O’Dair of counsel
DECISION AND REASONS

BACKGROUND TO THE APPEAL

1. The Appellant was born on 27 June 1975 in Albania and not 3 July 1975, which was the date on which is birth was registered. He entered the United Kingdom on 18 May 2000 and applied for asylum on the basis that he feared persecution in the Federal Republic of Yugoslavia, as someone who had served in the Kosovo Liberation Army. He was interviewed at Oakington Reception Centre on 22 May 2000 and the Refugee Legal Centre submitted further representations on his behalf on 24 May 2000. His application was refused on 25 May 2000. He appealed against this decision and his appeal was allowed on 21 September 2000 by a special adjudicator, Dr. Juss. He was subsequently granted refugee status and indefinite leave to remain on 20 December 2000.

2. The Appellant met his British partner in 2001 and they started a relationship in 2002. Their first child was born on 22 June 2011 and their second on 26 April 2013. They are both British citizens.

3. On 17 November 2008 the Appellant applied to be naturalised as a British citizen but his application was refused on 16 February 2012 on the basis that he had taken part in war crimes. He was subsequently granted a travel document in 2013. He travelled to Albania and on his return issues were raised about his refugee status. On 9 February 2015 the Appellant admitted that he was a national of Albania and on 29 April 2015 UNHCR accepted that the Appellant’s claimed asylum was a material factor in his recognition as a refugee and, therefore, it was its view that there would , subject to procedural safeguards and standards, appear to be grounds for considering cancellation of his refugee status.

4. On 2 March 2016 the Respondent decided to revoke the Appellant’s refugee status and also refused him leave to remain on family and private life grounds. He appealed against this decision and First-tier Tribunal Judge Callow allowed his appeal in a decision promulgated on 9 January 2017. The Respondent appealed on 23 January 2017. First-tier Tribunal Judge Grant-Hutchinson granted her permission to appeal on 2 February 2017.

ERROR OF LAW HEARING

5. The Home Office Presenting Officer said that she relied on the Respondent’s grounds of appeal. She noted that in the decision letter the Respondent had accepted that it would not be reasonable to expect the Appellant’s children to leave the United Kingdom to live with him in Albania. She also sought to distinguish the Appellant’s case from that of The Queen on the application of MA (Pakistan) & Others [2016] EWCA Civ , as that case involved children who had been in the United Kingdom for more than seven years as opposed to children who were British citizens. She also referred me to the case of SF and others (Guidance, post-2014 Act) Albania [2017] UKUT 00120 (IAC) and submitted that the Tribunal should follow guidance which had been published.

6. Counsel for the Appellant then replied and submitted that the First-tier Tribunal Judge had not misapplied section 117B(6) of the Nationality, Immigration and Asylum Act 2002. He asserted that there were two limbs to the test contained in section 117B(6) and that the First-tier Tribunal Judge had found that the first limb had been met and the Respondent had already conceded that the second limb had been met. Therefore, it was not necessary to consider the Appellant’s misconduct, as the concession in relation to the second limb had not been withdrawn by the Respondent. In any event, he submitted that, following MA (Pakistan) the question of his immigration history would have been part of the Respondent’s consideration of the reasonableness test.

7. He also submitted that nothing in the recent case of Treebhawon and Others (NIAA 2002 Part 5A – compelling circumstances test) [2017] UKUT 00013 (IAC)

DECISION

8. The Appellant was relying on his right to a family and private life with his partner and children as protected by Article 8 of the European Convention on Human Rights. It was not submitted that the Appellant was entitled to leave to remain under Appendix FM or paragraph 276ADE of the Immigration Rules.

9. However, in R (on the application of Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) Sales J held at paragraph 29 that:

“the new rules do provide better explicit coverage of the factors identified in case-law as relevant to analysis of claims under Article 8 than was formerly the position, so in many cases the main points for consideration in relation to Article 8 will be addressed by decision-makers applying the new rules. It is only if, after doing that, there remains an arguable case outside the Rules by reference to Article 8 that it will be necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under the new rules to require the grant of such leave”.

10.. This approach was approved by MM (Lebanon) v Secretary of State for the Home Department [2014] EWCA Civ 985.

11. In paragraph 12 of his decision and reasons First-tier Tribunal Judge Callow found that the facts in the Appellant’s case showed that there were arguably good grounds, not already addressed in consideration under the Rules, to show that residual Article 8 protection ought to be extended. This finding was not challenged by the Respondent.

12. In paragraph 10 of his decision and reasons First-tier Tribunal Judge Callow also found that the evidence shows the existence of a genuine and subsisting relationship between the appellant, his partner and the children. Again this finding was not challenged by the Respondent.

13. This finding meant that the requirements of Article 8(1) of the European Convention on Human Rights were met. However, the First-tier Tribunal Judge also had to consider whether the Respondent had established the decision to refuse the Appellant leave to remain was proportionate for the purposes of Article 8(2) of the European Convention on Human Rights. When doing so the First-tier Tribunal Judge had to take into account section 117B of the Nationality, Immigration and Asylum Act 2002.

14. Section 117B(4) states that:

“(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”

15. I have reminded myself that in The Queen on the application of MA (Pakistan) & Others v Secretary of State for the Home Department [2016] EWCA Civ 705 Elia LJ found in paragraph 45 that “if the court should have regard to the conduct of the applicant and any other matters relevant to the public interest when applying the “unduly harsh” concept under section 117C(5), so should it when considering the question of reasonableness under section 117B(6)”.

16. However, the parties agreed that the circumstances in the current appeal were slightly different. This was because at page 3 of the decision letter the Respondent had found that the Appellant’s British citizen children had been resident in the United Kingdom since their birth and that it would be unreasonable for them to leave the United Kingdom because both them and their mother were British born and their removal could not be enforced.

17. In her grounds of appeal the Respondent had submitted that this concession had only been made because she had not found that the Appellant had a subsisting relationship with his children. But the Home Office Presenting Officer referred me to the Home Office’s policy on Appendix FM 1.0 Family Life (as a Partner or a Parent) and Private Life: 10-Year Routes, August 2015. Paragraph 11.2.3. of the policy stated that “save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of the child”.

18. The Home Office Presenting Officer also relied on the case of SF and Others. In this case the Upper Tribunal was referred to paragraph 11.2.3. of the Appendix FM policy referred to above and found at paragraph 10 of its decision that:

“It is clear that the appellants do not have available to them a ground of appeal on the basis that the decision was not in accordance with the law such as before the amendments made to the 2002 Act by the 2014 Act they might have had. Nevertheless it appears to us that the terms of the guidance are an important source of the Secretary of State’s view of what is to be regarded as reasonable in the circumstances, and it is important in our judgement for the Tribunal at both levels to make decisions which are, as far as possible, consistent with decisions made in other areas of the process of immigration control”.

19. The head note also reads :

“Even in the absence of a “not in accordance with the law” ground of appeal, the Tribunal ought to take the Secretary of State’s guidance into account if it points clearly to a particular outcome in the instant case. Only in that way can consistency be obtained between those cases that do, and those cases that do not, come before the Tribunal”.

20. As a consequence, as the Respondent was now relying on the Appendix FM policy referred to above, her position had changed from that adopted in the grounds of appeal. Therefore, there was no challenge to the finding to the First-tier Tribunal’s decision that both limbs of section 117B(6) were met.

21. Furthermore, since the policy relied upon implicitly referred to the immigration status of a parent but only excluded a parent from the policy in cases of criminality, counsel for the Appellant was correct in his submission that the question of the maintenance of immigration control had already been incorporated into the reasonableness test to be applied under that policy. The Home Office Presenting Officer did not resile from this analysis.

22. Therefore, it was not necessary to give separate consideration to section 117B(1) of the Nationality, Immigration and Asylum Act 2002 and I am satisfied that First-tier Tribunal Judge Callow did not make material errors of law in his decision and reasons.

DECISION

(1) The Respondent’s appeal is dismissed.

(2) The decision by First-tier Tribunal Judge Callow is upheld.

Nadine Finch

Signed Date 11 April 2017

Upper Tribunal Judge Finch