(Immigration and Asylum Chamber) Appeal Number: HU/08221/2018
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 31 July 2019
On 09 September 2019
DEPUTY UPPER TRIBUNAL JUDGE BAGRAL
THE ENTRY CLEARANCE OFFICER
(anonymity direction made)
For the Appellant: Mr S Kotas, Home Office Presenting Officer
For the Respondent: Mr S Nwaekwu, Solicitor, Moorehouse Solicitors
DECISION AND REASONS
1. The First-tier Tribunal made an anonymity order to safeguard the interests of the child concerned. I have not been invited to rescind the order. The order is appropriate and continues.
2. This is the Entry Clearance Officer's (ECO) appeal from the decision of First-tier Tribunal Judge J S Burns (the judge) promulgated on 23 May 2019 allowing the appeal of CNB (the Claimant) against the ECO's decision refusing her application for entry clearance to join her husband in the UK.
3. The claimant is a citizen of the Democratic Republic of Congo (DRC) born on 23 February 1993. She is married to a British citizen present and settled in the UK (the sponsor). They have a young child who is also a British citizen but who is residing with the Claimant in France. At the date of hearing before the judge the Claimant was about to give birth to a second child. There was no dispute about the family relationship(s), and it was accepted that the sponsor visited the Claimant and his daughter frequently in Paris and financially supported them.
4. The sole live issue before the judge was that of suitability, all other matters in dispute being resolved by the evidence filed on appeal.
5. The refusal on the grounds of suitability related to the issue of deception. On 27 December 2016 the Claimant was apprehended by an immigration officer when she attempted to enter the UK to visit the sponsor using a Belgium identity card that did not belong to her. She was refused entry under paragraph 320(7A) of the Immigration Rules (the Rules) and was subject to a re-entry ban of a year pursuant to paragraph 320(7B) thereof. Following the expiration of that period, on 4 January 2018, the Claimant made an application to join the sponsor in the UK the refusal of which was the subject of the appeal before the judge.
6. In this application the Claimant denied that she had been known by another name and denied that she had been refused entry to the UK in the last ten years. That led the ECO to refuse the application on suitability grounds.
7. The judge heard evidence from the sponsor. The judge found that the sponsor knowingly funded the purchase of the identity card for the purposes of attempting deception and rejected the explanation that the answers given in the application was an innocent mistake.
8. The judge found that the invocation of paragraph 320(7A) by the ECO was indeed correct and that the Claimant could not therefore meet the requirements of the Rules. The judge then embarked on a consideration outside of the Rules contrary to Article 8 of the ECHR as required. The judge answered the first four questions in Razgar v SSHD  UKHL 27 affirmatively and accordingly the issue in the appeal boiled down to that of proportionality.
9. The judge observed that the Claimant's rights and that of her family were to be balanced against the public interest  and further noted at , by reference to section 117B(1) of the Nationality Immigration and Asylum Act 2002, that the maintenance of effective immigration controls is in the public interest. The judge acknowledged at  the aggravating features of the Claimant's deception and recognised that "allowing entry clearance in these circumstances does undermine immigration control and set a bad example". (sic)
10. The judge took into account that the sponsor had resided in the UK for twenty-three years. He was in full-time employment and lived in rented accommodation. The judge found that it was open to the sponsor to live in France or the DRC with his family but concluded that it was unreasonable and impractical to expect him to do either  given his length of residence in the UK, the considerable disruption in his personal and working life if he were required to uproot himself with financial consequences for his family.
11. The judge observed that the refusal of entry clearance would prolong the separation between the sponsor and his young family and that any further application may be refused on mandatory grounds which was unjustifiably harsh. The judge considered that the Claimant had suffered for her mistakes and to keep the family apart was not in the best interests of the child who was British and whose interests were served by being able to live with both parents. Accordingly, the judge found that the public interest was outweighed by family and private life considerations and concluded that the refusal of entry clearance was disproportionate .
12. The principal arguments advanced on behalf of the ECO are that the judge erred in law by failing to set out the extent of the family life between the Claimant and her sponsor and so, failed to provide adequate reasons why there was an interference in that family life and, failed to identify any exceptional circumstances that would justify a finding that refusal was disproportionate.
13. First-tier Tribunal Judge O' Brien in granting permission stated that "it was at least arguable that the judge failed to have regard to the public interest when finding that refusal was disproportionate."
14. It is not correct to assert that the judge failed to set out the extent of family life between the Claimant and sponsor and failed to provide adequate reasons for finding that there was an interference with family life. The judge was assessing the circumstances of a young family at the heart of which was a British child whose British father had been living in the UK for a significant period. The judge found that it was unreasonable to expect the sponsor to leave the UK to continue family life elsewhere. The judge further noted that the sponsor frequently visited the Claimant and his daughter in Paris. There is no challenge to these findings of fact much of which appear to have been uncontentious before the judge. It is thus clear why the judge concluded that there was family life and an interference with it.
15. The grounds assert that the judge was wrong to find an interference on the basis that the refusal prevented the British child from entering the UK to join the sponsor at , but this fails to recognise that the judge was considering the reality of the situation faced by this family with a young child who was likely to be dependant on the mother for care. In my judgement reading the decision as a whole the judge viewed this as a "practical bar" to the child returning to the UK in light of the reality of the situation faced by the family.
16. Looking at the decision as a whole, I am satisfied that the judge gave adequate reasons for his findings, and that it was open to him to find that the refusal caused an interference with family life.
17. Further, it is incorrect to say, as referenced in the grant of permission, that the judge arguably failed to have regard to the public interest. The judge was acutely aware of the circumstances relating to the use of a false document in 2016 and the false representations made in 2018 and considered the public interest with that fully in mind. The judge referred to the public interest and to the fact that immigration control was undermined where there was deception at  to  describing this as a "serious attack on immigration control" and was mindful that allowing entry clearance in these circumstances undermined immigration control and sets a bad example . It is plain from this that the judge was aware of the weighty consideration to be given to the public interest, and that this was at the forefront of his mind during his consideration.
18. Mr Kotas acknowledged that the judge did in fact refer to the public interest but submitted that it was "inadequate" and criticised the judge for failing to specifically record that he had attached "considerable weight" to the public interest: see § 40 of Agyarko  UKSC 11.
19. In light of what the judge stated at  to  I do not find this to be a fair criticism of him. Whilst the judge did not expressly state that he attached "considerable weight" to the public interest, it is not necessarily a phrase that the judge has to give lip service to, but rather, he is required to demonstrate that he was aware of the significance to be attached to the public interest in the balancing exercise and attach appropriate weight to it. I am satisfied that that is what the judge did and that he did not lose sight of his finding that the Claimant had knowingly employed deception on two occasions in conducting his proportionality assessment.
20. The core issue in the appeal was whether the decision to refuse the claimant entry clearance was a disproportionate interference with the right to respect for family life. The judge placed various factors into the balance on either side including the possibility of the sponsor living with his family in France and the DRC. Whilst I acknowledge that the factors the judge referred to at  as to the possible eventualities of a refusal are speculative, the underlying reasons for the judge allowing the appeal, are notwithstanding clear. These included the best interests of a British child, the sponsor's established private life in the UK developed over a significant period and the unreasonableness of expecting him to leave the UK and the considerable disruption this would cause to his family who were reliant on him for financial support.
21. Not every judge would have reached the same decision and it may be that the Claimant is the beneficiary of a generous decision by the judge. That said, the function of the Upper Tribunal is not to make a second decision based on the evidence but to enquire whether there is any error of law in the approach adopted by the First-tier Tribunal such that justice requires it to be set aside. I do not consider that there is anything in the decision to suggest that the judge's approach was other than on all fours with the proper legal framework.
22. It therefore follows that this appeal is dismissed.
Notice of Decision
The a ppeal is dismissed, and the decision of the First-tier Tribunal is affirmed.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Claimant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of her family. This direction applies to both parties. Failure to comply with this direction could lead to contempt of court proceedings.
Signed Date 20 August 2019
Deputy Upper Tribunal Judge Bagral