(Immigration and Asylum Chamber) Appeal Number: HU/02908/2017
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 3 rd January 2019
On 29 th March 2019
DEPUTY UPPER TRIBUNAL JUDGE MANDALIA
(anonymity direction NOT made)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Mr. J Plowright, Counsel instructed by Adam Bernard Solicitors
For the Respondent: Mr. S Kotas, Home Office Presenting Officer
DECISION AND REASONS
1. The appellant is a national of Nigeria. He arrived in the United Kingdom in April 2007 and made a claim for asylum. That claim was refused for the reasons set out in a decision dated 11 th May 2007, and an appeal against that decision was dismissed in July 2007. The appellant then made a number of applications for an EEA residence card, all of which were refused. Most recently, on 3 rd February 2017, a decision was made by the respondent to refuse the appellant leave to remain in the UK. The appellant had sought leave to remain in the UK based on his family life with his partner ("GB") and his two daughters who I shall refer to as ("WA") and ("PA"). The appellant's appeal against the decision of 3 rd February 2017, was heard by First-tier Tribunal ("F tT") Judge Callow and dismissed for the reasons set out in a decision promulgated on 5 th July 2018. It is that decision of the F tT Judge that is the subject of the appeal before me.
2. Permission to appeal was granted by Deputy Upper Tribunal Judge Doyle on 16 th November 2018. In granting permission, the Judge observed that:
"The appellant lives with his EEA national wife and two British citizen children. The Judge finds that the appellant's children are British citizens. It is arguable that the Judge has failed to properly determine whether or not the appellant's wife is settled in the UK (she has a grant of EEA permanent residence). It is arguable that at  the Judge fails to apply the guidance given in MA(Pakistan) (approved in KO (Nigeria) and Others v SSHD  UKSC). It is arguable that the Judge did not consider s.117B(6) of the 2002 Act."
3. I do not need to make any express reference to the findings and conclusions of the F tT Judge. Mr Kotas, rightly in my judgment, accepted from the outset that there is a material error of law in the decision of the F tT Judge, and the decision must be set aside. He accepts that the Judge erred at paragraph  of the decision, in reaching the conclusion that the appellant gains no assistance from paragraph EX.1.(b) of Appendix FM because his partner, a national of Nigeria who holds "EEA permanent residence in the UK, is not ' a British citizen, settled in the UK or in the UK with refugee leave or humanitarian protection.'.". Although the Judge refers to the definition of 'settled in the UK' in s33(2A) of the Immigration Act 197, the Judge did not consider the interpretation provision set out at paragraph 6 of the Immigration Rules. The rules provide that 'settled in the UK' means that the person concerned is settled in the United Kingdom and, at the time that an application under the Rules is made, is physically present here. The definition set out in paragraph 6 of the rules provides that for the purposes of an application under Appendix FM, an EEA national with a permanent right to reside in the UK under European law must hold either a valid residence permit issued under the Immigration (European Economic Area) Regulations 2000 which has been endorsed under the Immigration Rules to show permission to remain in the UK indefinitely, or a valid document certifying permanent residence issued under the Immigration (European Economic Area) Regulations 2006, in order to be regarded as present and settled in the UK. The evidence was therefore capable of establishing that the appellant's partner is present and settled in the UK.
4. Mr Kotas also accepts that although the Judge refers to the relevant authorities at paragraph  of the decision, the Judge's analysis of the issues and consideration of the relevant evidence, has been undermined by the subsequent decision of the Supreme Court in KO (Nigeria) & Others -v- SSHD  UKSC 53. In a decision handed down on 24 th October 2018, Lord Carnwath, with whom Lord Kerr, Lord Wilson, Lord Reed and Lord Briggs agreed, referred to paragraphs 276ADE(1)(iv) of the Immigration Rules, and s117B(6) of the 2002 Act. Having referred to the requirement that appears at paragraph 276ADE(1)(iv) of the rules, he stated, at :
"It will be seen immediately that the substance of this provision, in particular the seven year criterion and the "reasonableness" tests, appears identical to that of section 117B(6), taken with the definition of "qualifying child"
At paragraphs  to , Lord Carnwath stated:
"17. As has been seen, section 117B(6) incorporated the substance of the rule without material change, but this time in the context of the right of the parent to remain. I would infer that it was intended to have the same effect. The question again is what is "reasonable" for the child. As Elias LJ said in MA (Pakistan) Upper Tribunal (Immigration and Asylum Chamber)  EWCA Civ 705,  1 WLR 5093, para 36, there is nothing in the subsection to import a reference to the conduct of the parent. Section 117B sets out a number of factors relating to those seeking leave to enter or remain, but criminality is not one of them. Subsection 117B(6) is on its face free-standing, the only qualification being that the person relying on it is not liable to deportation. The list of relevant factors set out in the IDI guidance (para 10 above) seems to me wholly appropriate and sound in law, in the context of section 117B(6) as of paragraph 276ADE(1)(iv).
18. On the other hand, as the IDI guidance acknowledges, it seems to me inevitably relevant in both contexts to consider where the parents, apart from the relevant provision, are expected to be, since it will normally be reasonable for the child to be with them. To that extent the record of the parents may become indirectly material, if it leads to their ceasing to have a right to remain here, and having to leave. It is only if, even on that hypothesis, it would not be reasonable for the child to leave that the provision may give the parents a right to remain. The point was well-expressed by Lord Boyd in SA (Bangladesh) v Secretary of State for the Home Department 2017 SLT 1245 :
"22. In my opinion before one embarks on an assessment of whether it is reasonable to expect the child to leave the UK one has to address the question, 'Why would the child be expected to leave the United Kingdom?' In a case such as this there can only be one answer: 'because the parents have no right to remain in the UK'. To approach the question in any other way strips away the context in which the assessment of reasonableness is being made ..."
19. He noted (para 21) that Lewison LJ had made a similar point in considering the "best interests" of children in the context of section 55 of the Borders, Citizenship and Immigration Act 2009 in EV (Philippines) -v- Secretary of State for the Home Department  EWCA Civ 874, para 58:
"58. In my judgment, therefore, the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world. If one parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted. If neither parent has the right to remain, then that is the background against which the assessment is conducted. Thus the ultimate question will be: is it reasonable to expect the child to follow the parent with no right to remain to the country of origin?"
To the extent that Elias LJ may have suggested otherwise in MA (Pakistan) para 40, I would respectfully disagree. There is nothing in the section to suggest that "reasonableness" is to be considered otherwise than in the real world in which the children find themselves.
5. Therefore, contrary to the consideration of the evidence by the Judge, the conduct of a parent is not directly relevant to the public interest consideration set out in s117B(6), although the record of the parent may become indirectly material, if it leads to their ceasing to have a right to remain here, and having to leave. It is only if it would not be reasonable for a child to leave the UK that s117B(6) of the 2002 Act may give a parent a right to remain.
6. As to disposal, the assessment of a human rights claim such as this is always a highly fact sensitive task. I have decided that it is appropriate to remit this appeal back to the F tT for hearing afresh, having taken into account paragraph 7.2 of the Senior President's Practice Statement of 25 th September 2012. The nature and extent of any judicial fact-finding necessary will be extensive. The parties will be advised of the date of the First-tier Tribunal hearing in due course.
Notice of Decision
7. The appeal is allowed. The decision of F tT Judge Callow promulgated on 5 th July 2018 is set aside, and I remit the matter for a de novo hearing in the First-tier Tribunal.
Signed Date 30 th January 2019
Deputy Upper Tribunal Judge Mandalia
TO THE RESPONDENT
8. I make no fee award as I have remitted the matter to the F tT for hearing afresh.
Signed Date 30 th January 2019
Deputy Upper Tribunal Judge Mandalia