(Immigration and Asylum Chamber) Appeal Number: HU/12228/2016
THE IMMIGRATION ACTS
Heard at Fox Court
Decision & Reasons Promulgated
On 12 th February 2019
On 13 th March 2019
DEPUTY UPPER TRIBUNAL JUDGE GRIMES
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
m S G
(ANONYMITY DIRECTION made)
For the Appellant: Mr P Duffy, Home Office Presenting Officer
For the Respondent: Mr MSG in person
DECISION AND REASONS
1. Although this is an appeal by the Secretary of State I refer to the parties as they were in the First-tier Tribunal.
2. The Appellant, a national of Pakistan, appealed to the First-tier Tribunal against the decision of the Secretary of State dated 27 th April 2016 refusing his application for leave to remain in the United Kingdom on the basis of his private and family life in the UK. First-tier Tribunal Judge Baldwin allowed his appeal in a decision promulgated on 12 th December 2018. The Secretary of State now appeals to this Tribunal with permission granted by First-tier Tribunal Judge Lever.
3. The Secretary of State had refused the application on the basis that the Appellant did not meet the suitability requirements of S-LTR because he had submitted a TOEIC certificate from Educational Testing Service (ETS) which was fraudulently obtained and that accordingly his presence in the UK is not conducive to the public good. The Appellant had a child born on 29 th March 2012. He and the mother of the child are separated and the Appellant has obtained a Child Arrangement Order. The couple separated in April 2013. Since then the Appellant has lived with his sister and her husband. The Appellant has obtained a court order giving him contact with his child.
4. In considering the appeal the First-tier Tribunal Judge considered the TOEIC issue and found that the Appellant had probably not undertaken the English language test and accordingly found that he did not meet the suitability requirements of the Rules. In his assessment under Article 8 the judge considered the child's best interests at paragraph 26 noting that at the date of the hearing the child was aged 6 years and 8 months, had been born in the UK and was established at school, and that, although contact with his father was initially supervised because of the Appellant's violence within the family home, the judge accepted that it is in the child's best interests that he continues to have regular contact with his father. The judge noted that neither the child nor his mother is a British national or settled in the UK. The judge noted that previous applications made by the mother for leave to remain had been refused but that the she had made a fresh claim for asylum although there was no documentary evidence to corroborate that assertion. The judge however found that the child's best interests are probably best served by him being able to stay in the UK and to have regular meaningful contact with his father, which he could not do if he remains in the UK with his mother and his father returns to Pakistan.
5. The judge considered proportionality at paragraph 27 acknowledging that it may be that the mother's time in the UK is very close to running out but that, given how close it may be to a decision it would be unreasonable and disproportionate to expect the Appellant to leave now both for him and more particularly his son who is not responsible for any shortcomings on the part of his parents. The judge said that the period of such leave is a matter for the Respondent who is best placed to determine it based on what happens in the next few weeks.
6. In his grounds the Secretary of State contends that the judge erred in allowing the appeal under Article 8 and in doing so he utilised this provision as a general dispensing power. It is submitted that ETS deception has been found, therefore the Appellant cannot meet the requirements of the Rules on suitability grounds and in any event neither his ex-wife nor child have any status nor is the child a qualifying child. It is contended that the judge was required to deal with the situation at the time of hearing and not to speculate as to what may happen in the future. It is contended that the Appellant's ex-wife and child have no basis of stay in the UK and therefore their natural expectation when examining the real world test would be for the child to accompany his mother to Pakistan. It is further contended that the First-tier Tribunal Judge failed to balance the Appellant's immigration history, fraudulent activity and propensity to violence adequately. Moreover, it is contended that the Appellant's family life claim is based on a limited contact order with his son who lives 150 miles away while he resides in London and that this has to be balanced against the competing public interest for his removal on the basis of the ETS fraud. It is contended further that Section 117B(6) is not determinative of the issue in hand as the judge failed to consider what special factors would make it unreasonable for the child to be removed and that no such factors had been advanced.
7. Permission to appeal was granted on the basis that it is arguable that, in considering the case outside of the Immigration Rules, the judge did so briefly and was in some respects speculative as to the circumstances and this decision was arguably too heavily based on speculation as to future events and did not fully consider Section 117B of the Nationality, Immigration and Asylum Act 2002.
8. At the hearing before me Mr Duffy contended that, in recommending that a limited period of leave be granted, the judge may have had in mind the decision in MS (Ivory Coast)  EWCA Civ 133 which dealt with the removal of a parent during contact order proceedings. He contended that this was the wrong approach as in this case the Appellant is not seeking to stay to resolve proceedings in the Family Court. He contended that, in considering the appeal under Article 8 outside the Rules, the judge treated the child's best interests as determinative of the appeal. In his contention the judge had not factored in the fact that the Appellant cheated in his English language test nor had he considered the precarious situation of the family life. He highlighted that no members of the family have a right to be in the UK and if they do get leave then that would be a subject of another application. He clarified that the submission made in paragraph 5 of the grounds was that, even if the child were here and settled, the Secretary of State would still contend that the Appellant could leave. He relied on the test set out in the case of KO (Nigeria) & Others -v- Secretary of State for the Home Department  UKSC 53 which requires assessment of the situation in the real world.
9. Mr MSG submitted that his son and the child's mother have a case going on and that they have an appointment in Liverpool in connection with an asylum application on 28 th February as the previous appointment arranged for December had to be cancelled due to a medical issue with his son. He said that access was previously supervised but that he had unsupervised access to his son for the past year and a half. He said that he has access to his son every two weeks but sometimes every week as he is not working. He lives in London with his sister and his ex-wife and child live in Newcastle.
10. In response Mr Duffy said that the judge's consideration at the end of paragraph 27 appeared to be with the decision of MS (Ivory Coast) in mind. He highlighted that in his view this was not applicable in this case.
Error of Law
11. There is no challenge to the judge's findings in relation to the TOEIC English language test and to the judge's finding that the Appellant cannot meet the requirements of the Immigration Rules. Accordingly, the issue is whether the judge erred in his approach to the assessment under Article 8.
12. The judge considered the best interests of the child at paragraph 26 concluding that it was in the child's best interest to remain in the UK and to have regular meaningful contact with his father. The judge acknowledged that that was not a trump card at paragraph 26. The judge assessed proportionality at paragraph 27 of the decision. However, the only issue the judge considered in looking at proportionality was the fact that the Appellant's ex-wife and child had an application for asylum pending. The judge indicated that he had canvassed the possibility during submissions that one possible outcome might be a grant of limited leave in order to allow a decision to be made in the application made by the Appellant's ex-wife and child. However, the judge accepted that there was no documentary evidence of any application.
13. In my view the judge's assessment of proportionality was inadequate. He failed to consider the Appellant's fraud in relation to the ETS test in line with his findings at paragraph 25 that those who abuse the systems established to demonstrate sufficient ability in the English language threaten the willingness of the authorities here to continue to encourage International Students to come the UK and "such abuse strikes at the heart of effective immigration control and is a serious matter". Further, although the judge set out paragraph 24 that he had regard to the considerations set out in Section 117 he failed to mention those factors in any detail and did not refer to them at all in his consideration of proportionality at paragraph 27.
14. I have considered the prospect that the judge was endeavouring to apply MS (Ivory Coast) and the prospect of the grant of temporary permission to stay whilst family proceedings are resolved. However, in my view, there is no basis for consideration of the principles of that case here given that in this case the family proceedings have already been processed and there is no indication that there are any further family proceedings outstanding. The judge's decision that a grant of a period of temporary leave to remain in this case is based instead on the speculative conclusion that the Appellant's ex-wife and child may have an application for asylum pending with the Home Office. There was no documentary evidence before the judge in relation to any outstanding application. In reaching a conclusion on proportionality based only on this speculative submission the judge erred in failing to consider the other public interest requirements as set out in Section 117B and all of the factors relevant to the assessment of proportionality.
15. In these circumstances I consider that the decision of the First-tier Tribunal should be set aside. There has been no challenge to any of the findings of fact and I therefore preserve them. I indicated at the hearing that, if I accepted that the Grounds of Appeal were established, I would go on to remake the decision on the basis of the findings of fact and the material before me and I do so now.
Remaking the Decision
16. In remaking the decision I follow the steps set out by Lord Bingham in the case of R v SSHD ex parte Razgar  UKHL 27. It is not in dispute that the Appellant has family life with his child to whom he has access through orders of the court. I accept that, if the Appellant's ex-wife and child do not return to Pakistan, this decision may interfere with their family life.
17. In considering proportionality I start with considering the best interests of the child. The child was born on 29 th March 2012 and is accordingly 6 years and 10 months. The child is attending school. The child lives with his mother and has contact with his father on foot of orders of the Family Court. What is said to be the final Court Order is at pages 19 to 21 of the Appellant's bundle. It sets out a consent order which states that the child spends time with his father by Skype each Wednesday and on alternate Saturdays from 10am to 5pm in the North East of England under arrangements whereby the Appellant's sister is to collect and return the child to the mother and is present throughout contact. Provision is also made for such reasonable times and on such occasions as the parties may from time to time agree to vary these arrangements giving priority to the needs of the child. This Court Order was made on 11 th April 2016. I accept that it is in the best interests of the child to continue to have contact with his father.
18. In considering proportionality I take into account that the Appellant cannot meet the requirements of the Immigration Rules because he cannot meet the suitability requirements based on the findings in relation to the fraud he practised in obtaining the TOEIC certificate.
19. I take into account the domestic violence perpetrator programme final assessment report of 23 rd September 2015 which notes that it is clear that the Appellant had demonstrated forms of abuse within his relationship with his ex-wife involving some physical violence and other forms of abuse, such as emotional, financial, isolation, male privilege and irresponsible parenting.
20. I take into account that the Appellant states that his ex-wife and child are pursuing an application for asylum in the UK and that his ex-wife has an appointment with the Home Office on 28 th February 2019. There is no documentary evidence before me to support this assertion. In any event it is clear that the Appellant's ex-wife and the child do not have current leave to remain in the United Kingdom.
21. I take into account the factors set out in Section 117B of the Nationality, Immigration and Asylum Act 2002. That provision set outs that the maintenance of effective immigration control is in the public interest and sets out various factors to be taken into account in assessing the public interest. It appears that the Appellant can speak English. He represented himself in English at the hearing before me. There is no evidence before me that he is financially independent and I take this into account in accordance with Section 117B(3). The Appellant has been in the UK since December 2012 initially with leave to remain as a student. However it seems that further applications for leave to remain were withdrawn, therefore it appears that he has not had any leave to remain since May 2012. Accordingly, any private life he has developed and much of the family life he developed with his ex-wife and child were formed at a time when he was in the UK unlawfully.
22. I have considered Section 117B(6) however, the Appellant's child has not been in the UK for seven years and is not therefore a qualifying child within Section 117D(1). In any event I have taken account of the guidance given by the Supreme Court in KO (Nigeria) & Others -v- Secretary of State for the Home Department  UKSC 53 . Lord Carnwath said at paragraph 16 that Rule 276ADE(1)(iv) contains no requirement to consider the criminality or misconduct of a parent as a balancing factor and that it was impossible in his view to read it as importing such a requirement by implication. At paragraph 17, he said that section 117B(6) incorporated the substance of the Rule without material change, but this time in the context of the right of a parent to remain. He inferred that it was intended to have the same effect. The question again was what is reasonable for the child. Lord Carnwath endorsed as a highly relevant consideration the following guidance contained in an Immigration Directorate Instruction (IDI) of the Home Office cited at paragraph 10:
" It is generally the case that it is in a child's best interests to remain with their parent(s). Unless special factors apply, it will generally be reasonable to expect a child to leave the UK with their parent(s), particularly if the parent(s) have no right to remain in the UK."
23. At paragraph 18, he continued:
"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 would 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."
24. Lord Carnwath went on to say that the point was well expressed by Lord Boyd in SA (Bangladesh) -v- SSHD  SLT 1245 at 22, and also by Lewison LJ in EV (Philippines) -v- SSHD  EWCA Civ 874 at paragraph 58 where Lewison LJ said, inter alia: "If neither parent has the right to remain, then that is a background against which the assessment is conducted. Thus the ultimate question would be: is it reasonable to expect the child to follow the parent with no right to remain to the country of origin?" Lord Carnwath said, at 19, " 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."
25. Accordingly, even if section 117B (6) applies, I must consider the situation of the Appellant and his ex-wife and child in the real world. There is no evidence before me that the Appellant's ex-wife and child have any permission to reside in the UK at present. Accordingly, they too would be expected to return to Pakistan. Any contact between the Appellant and his child could continue there.
26. Weighing all of these factors I conclude that the decision to refuse the application for the Appellant to reside in the UK is proportionate to the public interest.
Notice of Decision
The decision of the First-tier Tribunal contained a material error of law and I set it aside.
I remake the decision by dismissing the appeal on human rights grounds.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.
Signed Date: 11 th March 2019
Deputy Upper Tribunal Judge Grimes
TO THE RESPONDENT
The appeal has been dismissed therefore I make no fee award.
Signed Date: 11 th March 2019
Deputy Upper Tribunal Judge Grimes