Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001199

First-tier Tribunal No: HU/00508/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 7 March 2025

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

CHANAKAN PAKA
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No attendance
For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer

Heard at Cardiff Civil Justice Centre on 23rd January 2025

DECISION AND REASONS
1. The appellant, a national of Thailand born on 15th January 1975, appeals against the decision of First-tier Tribunal Judge (the judge) dated 4th January 2024 which dismissed the appellant’s appeal. She had appealed against the respondent’s decision of 29th December 2022 refusing her application dated 17th October 2022 for leave to remain in the UK as an unmarried partner. She had entered the UK as a visitor on 17th April 2022 and that visa was valid to 17th October 2022.
2. The appellant has a child who is a British national, TA, who at the time of the hearing in December 2023 was 11 years old. The grounds of appeal were as follows:
(i) The judge addressed Section 117(6) of the Nationality and Asylum Act 2022 (the NIA Act) but found it would not be unreasonable for the child to leave the UK. It was submitted the approach of the judge was flawed when assessing the position of the child. The judge found the appeal could not succeed under EX.1 but that the analysis was flawed. The judge failed to consider the insurmountable obstacles test by not looking at the cumulative effect of all the difficulties that could arise once the partner was in Thailand and then asking if that amounted to very serious hardship (Lal v SSHD [2019] EWCA Civ 1925 [45]). The judge should have considered cumulatively all the significant difficulties that the partner had in relocation. The partner had provided medical evidence on his condition as noted by Dr Masani which highlighted the illness and the partner’s life expectancy [112]. The judge did not consider how the health of the partner would represent a very significant difficulty in him moving to Thailand and whether there were steps which could be taken to mitigate the very significant difficulty. The approach to EX.1 was flawed and it was submitted that it infected the remainder of the findings.
(ii) Ground 2. The judge addressed the issue of Section 117(6) at [57] to [59] but took the view that it would not be unreasonable for the child to leave the UK. The judge’s approach was flawed when assessing the position of the child. The child was a qualifying child for the purposes of 117D, and the assessment appeared to be based on the fact that the child had entered the UK in June 2022 and had a support structure in Thailand, but the child was not responsible for this or the acts of the appellant and sponsor. The position had to be looked at solely from the point of the child and then ask as to whether it would be reasonable for her to leave. The judge considered the support structure in Thailand but took the view that any disruption to her education would not have a negative impact on her. The judge ignored The Family Policy Family life (as a partner or parent) and exceptional circumstances, version 19.
(iii) The judge was guided to SF and others (Guidance, post-2014 Act) Albania [2017] UKUT 120 (IAC) at [12] which allows the Tribunal to apply the respondent’s guidance when considering its decision. The judge was advised the processing times were 24 weeks and started once identity is verified. The disruption to the child’s education was a feature which should have been taken into account. It was not reasonable to expect the child to leave.
(iv) Ground 3. The judge failed to note Parveen [2018] EWCA Civ 932 which is referred to at [96] of Younas (section 117B(6)(b); Chikwamba; Zambrano) [2020] UKUT 129 (IAC). The judge should have considered if the public interest required her to leave and make an out of country application and did not consider if it was to be successful, then what was the public interest in her removal and how this then intersected with Section 117(B)? To expect the child to return to Thailand even for a temporary period will impact on her education as she was now in school, and this should have been factored into the proportionality assessment.
3. Permission to appeal was granted and which grant noted that the judge found the appellant did not meet the definition of partner in GEN.1.2. It was stated the findings on insurmountable obstacles regarding return of the partner were arguably inadequately reasoned as to the extent of the health issues. On ground 2 it was arguable the judge failed to undertake an adequately needed best interests assessment as a result of granting on 1 and 2 the judge also permitted the ground on 3 to be argued.
4. The Secretary of State’s submitted a Rule 24 application. The judge made a reference to EX.1. but that was not a standalone provision. In relation to ground 2 the judge provided reasons for the determination of finding it would not be unreasonable to expect TA to return to Thailand with her. The respondent’s guidance did not have the force of statute and did envisage the possibility of a qualifying child leaving the UK. In relation to public interest in an Article 8 claim, Younas explained that Section 117B of the Nationality Immigration and Asylum Act 2002 still applied. In relation to ground 3 the possibility of applying for entry clearance to return to the UK did not render removal disproportionate. This needed justification but in this case the justification arose from the fact the appellant’s status in the UK was precarious and she did not qualify for leave to remain under the Rules and there would be no insurmountable obstacles to the family continuing in Thailand.
5. The husband of the appellant had in the past split his time between Thailand and the UK and his illness did not inhibit him from travelling and residing abroad.
6. At the error of law hearing before me on 23rd January 2025 there was no appearance by the appellant. She was no longer represented. I considered it was in the interests of justice, bearing in mind a previous adjournment, under the overriding objective to proceed with the appeal.
7. At the hearing Ms Rushforth, Home Office Presenting Officer, conceded that there was an error of law and invited me to allow the appeal on the basis that the decision was not in accordance with the Home Office policy and there was no public interest advanced in relation to removal of the appellant because she had a British citizen child for whom she had care and it was not, Ms Rushforth submitted, reasonable to expect the child to leave the United Kingdom
8. In the circumstances and owing to the concession of the Home Office, in relation to this qualifying child, I therefore find a material error of law. Not only did the judge appear to fail to apply Lal in relation to the medical evidence of the British citizen the partner but also failed to acknowledge the Family Policy Family life (as a partner or parent) and exceptional circumstances, version 19 at page 52 which stated:
“The starting point is that we would not normally expect a qualifying child to leave the UK. It is normally in a child’s best interest for the whole family to remain together, which means if the child is not expected to leave, then the parent or parents or primary carer of the child will also not be expected to leave the UK”.
9. As noted in Younas at [96]
‘In some cases, the fact that a person will be able to re-enter the UK means that there will be no public interest at all in his or her removal. By way of example, in Parveen v The Secretary of State for the Home Department [2018] EWCA Civ 932 the appellant had entered the country lawfully and genuinely on a spouse visa and had remained married to her husband and resident in the UK ever since but had not, thirteen years earlier, made an application for leave. Underhill LJ observed at para. 28:
"It is hard to see how it could be right to insist on the empty but disruptive formality of leaving the country in order to correct a venial administrative error made thirteen years previously".
10. I re-make the decision. I note the applicant made an application for leave to remain when she was in the UK lawfully. The child would appear to be in secondary school.
11. Bearing in mind the concession of the Home Office inviting me to allow the appeal on the basis there is no public interest in the removal of the appellant, the mother of the child, and the respondent’s own Family Policy, I allow the appeal.
Notice of decision
The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007) and remake the decision under section 12(2) (b) (ii) of the TCE 2007 and allow the appeal.

Helen Rimington

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27th February 2025