(Immigration and Asylum Chamber) Appeal Number: HU/16387/2018
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 10 December 2019
On 30 December 2019
UPPER TRIBUNAL JUDGE MARTIN
mr Faizan Zaman
(ANONYMITY DIRECTION not made)
For the Appellant: Mr R Sharma (instructed by Maliks and Khan Solicitors)
For the Respondent: Mr N Bramble (Senior Home Office Presenting Officer)
DECISION AND REASONS
1. This is an appeal to the Upper Tribunal by the appellant in relation to a Decision and Reasons of Judge Devittie in the First-tier Tribunal promulgated on 12 April 2019 in which he dismissed the appellant's human rights appeal.
2. The appellant is a national of Pakistan born on 20 June 1991.
3. He entered the UK in May 2011 with entry clearance as a Tier 4 student valid until August 2012. That leave was then extended on the same basis until November 2014. However, his leave was curtailed on 26 March 2013 to expire on 25 May 2013.
4. The appellant then made a human rights application on 27 July 2017 on the basis of his relationship with his wife and two children in the UK. That application was refused on 23 July 2018 and it was the refusal of that application which was the basis of the appeal before the First-tier Tribunal.
5. The application was refused firstly on suitability grounds, on the basis that the Secretary of State alleged that, in his application of July 2012 for further leave as a student, he had submitted a TOEIC certificate which the Secretary of State concluded, on the basis of information provided to him, had been obtained fraudulently. The appellant thus failed the suitability requirements of Appendix FM. The Secretary of State, in the Letter of Refusal, considered paragraph Ex.1, although if the appellant did not meet the suitability requirements Ex.1 could not be available to him.
6. The Secretary of State then went on to consider the circumstances of the appellant's relationship with his wife and two children, who, it was noted are British. The Secretary of State noted that the appellant commenced his relationship knowing he was in the UK on a temporary basis and that it was open to the appellant to continue contact with his partner and children in the UK from Pakistan. So far as his private life was concerned, the Secretary of State also took into account the fact that the appellant had been in the UK on a temporary basis only.
7. In his judgment, Judge Devittie considered first of all the suitability issue at some length and his findings commence at paragraph 9 of his Decision and Reasons in that regard. He noted that in oral evidence the appellant had been unable to give a coherent response to basic questions about whether he had paid for the examination by a bank card or cash. He had been unable to recall when he opened a bank account in the UK and the judge found that aspect of his evidence did not enhance his credibility in terms of whether he had sat the test in person.
8. The judge set out in his decision a verbatim record of the appellant's evidence at the hearing, from which it is clear that the appellant was struggling to express himself coherently in relation to the contents of the examination he claimed to have sat. The judge stated that he would have expected, eight years after taking the test, that the appellant would have been able to show fluency sufficient to explain, in basic terms, the content of the test. On the other hand, the judge said that if the appellant's responses did not relate to his lack of English language proficiency, then they surely showed that he had not the slightest clue about the content of the examination and that he was trying to make up answers on matters he had no knowledge of. He found that undermined the credibility of the appellant's claim to have sat the examination.
9. The judge then went on to say that it was clear that the appellant had a very strong incentive to practice deception, as the scrutiny of his bundle of documentary evidence did not reveal that he had been able to produce a single document showing that he had ever completed any of the courses for which he was enrolled since arriving in the UK
10. Further, the appellant had stated in his evidence that he had received a copy of the recording of his speaking test and acknowledged that the voice on the recording was clearly not his. Having accepted that, the appellant then took no further action in relation to the voice recording or evidence provided, which the judge concluded entitled him to draw an adverse inference.
11. The judge therefore concluded that he was satisfied, having regard to the evidence as a whole, that the respondent had discharged the legal burden of showing that the appellant had practiced deception in relation to his 2012 test. He also found, at paragraph 9, that the appellant had failed to provide an innocent explanation.
12. The judge then turned to the Article 8 claim outside the Immigration Rules, the appellant being unable to succeed under the Rules on suitability grounds.
13. The judge found the appellant had established a private and family life in the UK which would be interfered with should he be removed. He noted that the appellant's two children were both born in 2017, being only nine months apart in age, that both were British citizens, which involves rights which they would be unable to exercise in Pakistan. The judge then went on to note that nationality is not a trump card and may be outweighed by countervailing considerations and that in this case the appellant had practiced deception and begun his relationship in full knowledge that his immigration status was precarious.
14. The judge went on to note that the children were of an age where they could readily adapt to life in Pakistan as they were tender in years and had not reached an age where they had begun to establish a private life independently of their family unit. The judge noted that there was no evidence that the appellant had no close family members in Pakistan to facilitate his integration and that of his family and children. He noted the appellant's spouse also had family in Pakistan. The judge noted that the appellant had come to study in the UK, which indicated that at the time of the grant of his student visa he was a person of some financial means. Whilst accepting that the children's long-term interests may best be served by remaining in the UK, he found it reasonable for them to settle in Pakistan.
15. The judge noted there was evidence showing that the appellant's spouse suffered from various ailments and in particular, depression and arthritis. He accepted that she had mobility problems and that it is with the assistance of the appellant that she is able to care for her two children. However, the judge found that they would be able to access appropriate medical care in Pakistan.
16. The judge noted that little weight should be attached to the appellant's family life, it having been commenced in the full knowledge that he had no right to remain in the UK and found there to be compelling public interest considerations in this case.
17. Permission to appeal was initially refused by a judge of the First-tier Tribunal. The grounds had argued the judge had failed to take into account an expert report. However, the judge refusing permission to appeal noted that there was no evidence that this was ever submitted to the judge and certainly it was not contained in the file. The judge found that the conclusions reached by the judge were open to him and that he had considered the best interests of the children.
18. A judge of the Upper Tribunal subsequently granted permission on the basis that the judge may have overlooked the IDI, cited in the grounds and in the skeleton argument. The judge granted permission finding that failure arguably material as this was not a deportation case and the applicant had two British children with whom it was accepted he had a genuine and subsisting relationship. However, the materiality of any such error would be dependent upon the guidance, relied upon by the appellant, remaining in force at the date of hearing.
19. Before me Mr Bramble helpfully provided the applicable IDI's. One was published on 22 February 2018 and a further on 19 December 2018 and it is that latter that was applicable at the date of the hearing before the First-tier Tribunal.
20. Mr Sharma argued that the Judge's treatment of the allegation of deception was flawed and that he had not considered the appellant's innocent explanation. He also relied upon the arguable error referred to by the Upper Tribunal judge who granted permission.
21. In terms of the error of law, I do not find any error in the Judge's treatment of the allegation of deception. It is clear from the decision that the judge gave detailed consideration to this, as I have set out above, and gave reasons why the appellant had not offered an innocent explanation and therefore that the Secretary of State's had met the burden of proof in that regard.
22. In relation to the judge's consideration of Article 8 outside the rules, I note that no mention whatsoever is made of section 117 of the Immigration and Asylum Act 2002, which is mandatory when considering Article 8 outside the Rules and the proportionality of removal. In particular, the judge ought to have considered section 117B(6), it being accepted that the appellant had a genuine and subsisting relationship with two qualifying children. His consideration of the reasonableness of either the appellant's British wife and children removing to Pakistan is brief in the extreme and I find a material error of law.
23. Having found an error of law it was agreed that I was able to redecide it on the basis of the evidence that was before the First-tier Tribunal.
24. The issue for me to decide is the proportionality of removal, bearing in mind section 117 and in particular the appellant's relationship with his wife and two British children.
25. One of the children has liver problems which require six monthly checks. No other treatment is required, assuming the checks remain satisfactory. The child also has impaired speech development. Neither of those conditions is life threatening and there is no evidence that treatment for both cannot be received in Pakistan.
26. The appellant's wife is of Pakistani heritage. The couple met in April 2015 and discovered that their families in Pakistan knew each other and that in fact they are related. The relationship developed and they were married in March 2016. They subsequently had their first child, a daughter in January 2017 and their second child in November 2017.
27. The appellant's wife has problems with her knees, for which she takes painkillers. This means it is difficult for her to go upstairs and so the appellant assists her with taking the children up and down stairs. She also suffers from anxiety and low mood. It is said that she would struggle without the support of the appellant.
28. A lot of emphasis is placed on the IDI on the appellant's behalf. However, the IDI in force at the date of the hearing was that issued in December 2018.
29. According to the IDI, having established that there is a genuine relationship with a qualifying child, the decision-maker is required to ask themselves whether the consequences of refusal of the application will be that the child is required to leave the UK. Clearly that is not the case here as both children would have their mother in the UK. However the guidance goes on to state that where there is a genuine and subsisting parental relationship between the applicant and child, the removal of the applicant may still disrupt their relationship with that child and for that reason the decision-maker would still need to consider whether, in the round, removal of the applicant is appropriate in light of all the real-life circumstances of the case, taking into account the best interests of the child as a primary consideration and the impact on the child of the appellant's applicant's departure from the UK or them having to leave the UK with them. If it is considered that refusal would lead to unjustifiably harsh consequences for the applicant, the child and their family, leave will fall to be granted on the basis of exceptional circumstances.
30. So far as the reasonableness of expecting a child to leave the UK is concerned, it is said that the starting point is that it would not normally expect a qualifying child to leave the UK and that it is normally in the child's best interests for the whole family to remain together, which means that if the child is not expected to leave, then the parent or parents with primary care of the child would also not be expected to leave the UK.
31. The guidance quotes the case of KO and Ors.  UKSC 53 where the Supreme Court found that reasonableness is to be considered in the real-world context in which the child finds themselves and the parents' immigration status is a relevant fact to establish that context. If the child's parents are both expected to leave the UK, the child is normally expected to leave with them, unless there is evidence that it would be unreasonable.
32. The guidance goes on to suggest specific circumstances where it may be reasonable for a qualifying child to leave the UK with the parent or primary carer or for the parent or primary carer to leave the UK and for the child to stay. The guidance provides that in such cases, the decision-maker must consider the best interests of the child and the facts relating to the family as a whole. The decision-maker should also consider any specific issues raised by the family or by, or on behalf of the child (or other children in the family).
33. It goes on to say that it may be reasonable for a qualifying child to leave the UK with the parent or primary carer where for example: -
(a) the parent or parents, or child, are a citizen of the country and so able to enjoy the full rights of being a citizen in that country
(b) there is nothing in any country information including as contained in the relevant country information which suggests that relocation would be unreasonable
(c) the parent or parents or child have existing family, social, or cultural ties with the country and if there are wider family relationships with friends or community overseas that can provide support:
(i) the decision-maker must consider the extent to which the child is dependent or requires support from wider family members in the UK in important areas of his or her life and how the transition to similar support overseas would affect them
(ii) a person who was extended family or a network of friends in the country should be able to rely on them to support to help reintegrate there
(iii) parent or parents or a child who have lived or visited the country before for periods of more than a few weeks should be better able to adapt, or the parent or parents would be able to support the child in adapting, to life in the country
(iv) the decision-maker must consider any evidence of exposure to, and the level of understanding of, the cultural norms of the country
(v) for example, a period of time spent living amongst a diaspora from the country may give a child an awareness of the culture of the country
(vi) the parent of parents or child can speak, read and write in a language of that country, or are likely to achieve this within a reasonable time period
(vii) fluency is not required - an ability to communicate competently with sympathetic interlocutors would normally suffice
(d) removal would not give rise to a significant risk to the child's health
(e) there are no other specific factors raised by or on behalf of the child.
34. In this case the appellant is a national of Pakistan. His wife of Pakistani heritage. They are related to each other. Both have family members in Pakistan and their families approve their relationship. There is therefore no suggestion that they would not have support if returned to Pakistan.
35. Whilst I accept that the best interests of these children would be to remain in the UK with both parents, I have to consider the reasonableness of their leaving the UK notwithstanding that to remain would be in their best interests.
36. The children are both very young and their parents are the centre of their lives. Whilst one of the children does have a medical issue, it is not life-threatening and there is no suggestion that treatment is unavailable in Pakistan.
37. Given the heritage of both parents, integrating into Pakistani culture would not be difficult for either parent or the children.
38. The interests of immigration control in this particular case are strengthened by the appellant's practice of deception in the submission of a false TOEIC certificate.
39. The appellant knew when he entered into his relationship with his wife that he had no right to be in the UK and that it was by no means certain he and his wife would be able to continue their family life together in the UK.
40. The guidance to the Home Office does not state that it is never reasonable to expect a British child to leave the UK. Reasonableness has to be assessed "in the real world." The real world in this case is that they are very young, their father has an appalling immigration history and no right to be in the UK. Both of their parents are familiar with the culture and language of Pakistan and have family support there. Whilst the appellant's wife has some medical issues, again, with the help and support of the appellant, there is no reason why sha cannot relocate with him to Pakistan.
41. For those reasons I find that the requirements of section 117B(6) of the Immigration and Asylum Act 2002 do not require the appellant to remain in the UK and that it would not be unreasonable for either his wife or the children to accompany him to Pakistan; whether they in fact do so of course is a matter for them.
42. For the above reasons I do not find the removal of the appellant would be a disproportionate breach of Article 8 and the rights of the appellant, his wife or children to a private family life.
Notice of Decision
43. The appeal to the upper tribunal is dismissed
44. No anonymity direction is made.
signature electronic"Date 23 December 2019
Upper Tribunal Judge Martin