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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2024-003533 |
|
First-tier Tribunal No: HU /58763/2023 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 28 th of March 2025
Before
UPPER TRIBUNAL JUDGE JACKSON
DEPUTY UPPER TRIBUNAL JUDGE CHANA
Between
SUMAN PAUDEL
(NO ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation :
For the Appellant: Mr A Jaffar of Counsel, instructed on a direct access basis
For the Respondent: Ms S Lecointe, Senior Home Office Presenting Officer
Heard at Field House on 14 January 2025
DECISION AND REASONS
1. In a decision promulgated on 19 November 2024 (annexed to this decision), the Upper Tribunal found an error of law in the decision of the First-tier Tribunal, set that decision aside and gave directions for the relisting of the Appellant's human rights appeal. There were a number of preserved findings of fact (set out further below) and the sole issue for determination following this hearing was as to whether the section 117B(6) of the Nationality, Immigration and Asylum Act 2002 was met, namely whether the Appellant has a genuine and subsisting parental relationship with his partner's daughter (referred to for ease throughout the decision as "B") and if so, whether it would be unreasonable for her to leave the United Kingdom.
2. The Appellant is a national of Nepal, born on 7 July 1988, who first entered the United Kingdom on 1 October 2009 as a Tier 4 (General) student with leave to remain as such until 30 August 2012. Leave to remain as such was extended to 31 July 2015, albeit curtailed on 8 December 2014 to expire on 9 February 2015. The Appellant made a further application the same category, further to which leave to remain was granted to 4 July 2017, albeit curtailed again on 12 April 2017 to expire on 2 July 2017.
3. The Appellant made an application for leave to remain outside the Immigration Rules on 29 June 2017 which was refused by the Respondent on 2 May 2018 and a similar application made on 15 May 2018 was refused and certified as clearly unfounded on 18 January 2019. A further application was made on 18 April 2019 and the appeal against the Respondent's refusal was dismissed on 31 December 2019. The Appellant made another application on 17 November 2020 which was refused on 1 October 2021.
4. The Respondent refused the Appellant's most recent application made on 13 December 2021 on the basis of his private life because he did not meet any of the requirements of the Immigration Rules for a grant of leave to remain. At the time of application, there was no claim of any family life in the United Kingdom, but by the time of his appeal, the Appellant relied on a relationship with a partner, Binita Sitaula (the "Appellant's partner") and her daughter.
The appeal
Legal background
5. There is no dispute in the present case that the Appellant does not meet any of the requirements of the Immigration Rules in relation to private or family life and therefore his appeal rests solely on Article 8 of the European Convention on Human Rights. For these purposes, the five stage test in the case of Razgar v Secretary of State for the Home Department [2004] UKHL 27 applies.
6. Pursuant to section 117A(2)(a) of the Nationality, Immigration and Asylum Act 2002, this Tribunal, when considering the public interest question for an Article 8 assessment, is required to have regard to the considerations listed in section 117B of the same. So far as relevant to this appeal, section 117B(6) provides:
In the case of a person who is not liable to deportation, the public interest does not require the person's removal where -
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.
7. The meaning of 'genuine and subsisting parental relationship' was considered by the Court of Appeal in AB (Jamaica) v Secretary of State for the Home Department [2019] EWCA Civ 661, in which it was concluded that these are "words of the ordinary English language and no further gloss should be put upon them. Their application will depend on an assessment by the relevant court or tribunal of the facts of the particular case before it. The exercise is a highly fact-sensitive one." The Court of Appeal also drew assistance on this point from the decision in R (RK) v Secretary of State for the Home Department [2016] UKUT 31 (IAC), which included the following analysis of the concept of "parental relationship":
"42. Whether a person is in a 'parental relationship' with a child must, necessarily, depend on the individual circumstances. Those circumstances will include what role they actually play in caring for and making decisions in relation to the child. That is likely to be a most significant factor. However, it will also include whether that relationship arises because of their legal obligations as a parent or in lieu of a parent under a court order or other legal obligation. I accept that it is not necessary for an individual to have 'parental responsibility' in law for there to be a relevant factor. What is important is that the individual can establish that they have taken on the role that a 'parent' usually plays in the life of their child.
43. I agree with Mr Mandalia's formulation that, in effect, an individual must 'step into the shoes of a parent' in order to establish a 'parental relationship'. If the role they play, whether as a relative or friend of the family, is a caring relative or friend but not so as to take on the role of a parent then it cannot be said that they have a 'parental relationship' with the child. It is perhaps obvious to state that 'carers' are not per se 'parents'. A child may have carers who do not step into the shoes of their parents but look after the child for specific periods of time (for example where the parents are travelling abroad for a holiday or family visit). Those carers may be professionally employed; they may be relatives; or they may be friends. In all those cases, it may properly be said that there is an element of dependency between the child and his or her carers. However, that alone would not, in my judgment, give rise to a 'parental relationship'."
The witness evidence
8. The Appellant submitted two written statements in support of his appeal. So far as relevant to the remaining issue, in his first statement, he stated that he has been very close to B since August 2019, she used to call him when stuck with her homework and they went on many family trips together. He was looking after her in September 2020 when his partner was advised to keep her distance from younger children for 20 days for medical reasons. The Appellant takes B to and from school, to dentist and GP appointments.
9. In his second written statement, the Appellant states that he has responsibility for B, dropping her off/picking her up from school, attending her school programme, helping with homework, preparing food for her and paying for her to attend a cooking club. The Appellant also took her to dentist appointments on 5 and 19 December 2024; the family are all registered at the same GP practice.
10. The Appellant attended the oral hearing, adopted his written statements and gave oral evidence primarily in English, with a court appointed Nepalese interpreter available as and when needed.
11. In cross-examination, the Appellant was asked questions about his relationship with both his partner and B; including the history of their relationships and the current situation. We summarise the key points from the Appellant's oral evidence without referring to it in full, particularly as a number of the questions were not directly relevant to the sole remaining issue of the Appellant's relationship with B.
12. The Appellant stated that he started living together with his partner and B on 15 October 2023 and before that he had been living in Hounslow since 2015 or 2016; during which time he used to visit his partner and B during the day. Before they lived together, sometimes the Appellant used to look after B alone while his partner went shopping.
13. B's birthday is on 4 April and they all celebrated her most recent birthday with her. The Appellant has attended school celebrations and attended parent's evening; maybe on 5 or 6 different occasions. The Appellant named B's teachers and said she was in year 5. He was not able to say how often parent's evenings were held at school. The Appellant mostly does the school drop offs and pick ups for B since they have lived together; before that, he and his partner used to go together to the school. The school times were identified. After school, B does netball and swimming on a Friday. The Appellant talks to B about her day at school, helps her with her homework and plays things like hide and seek.
14. The Appellant stated that he took B to GP appointments and recently took her to the dentist, together with his partner.
15. The Appellant and his partner speak mixed English and Nepali to B, who can understand Nepali but finds it hard to speak. She is able to say a few words to relatives in Nepal, who include grandparents on the maternal side. B has visited Nepal with her mother in the summer of 2024 for about three weeks, staying with grandparents and visiting aunts and cousins whom she has a good relationship with and stayed overnight with as well. On that visit, B did not meet the Appellant's relatives as they live in a different place in Nepal to his partner's relatives.
16. We asked the Appellant if there was anything he did for B without his partner also being present. He said that he takes her to and from school, to the park, to the dentist and doctors. The Appellant is listed as an emergency contact for B at school and books appointments for her at GP and the dentist. He stated that he did this and helped B specifically with her homework because his English skills are better than his partners; but this is also part of his duty as a father. For appointments, if all three of the family are available, both adults would take B, if mum is busy, the Appellant would take her alone. Any significant decisions, such as medical treatment or education are taken by the Appellant and his partner together.
17. The Appellant's partner submitted two written statements in relation to this appeal. So far as relevant to the remaining issue, in her first statement she said that the Appellant takes an active role in the day-to-day care of B, treats her like his own daughter, helping her with homework, going out together and attending parents evenings. Much of the Appellant's partner's statement is almost word-for-word identical to that of the Appellant's first statement and therefore will not be repeated here. The Appellant's partner's second witness statement is again almost word-for-word identical to that submitted by the Appellant and is also therefore not repeated.
18. The Appellant's partner attended the oral hearing, adopted her two written statements and gave evidence in Nepali through a court appointed interpreter. She stated that the Appellant and B have a father/daughter relationship and B would be very upset if she was to be separated from him as he supports them both. B was born in the United Kingdom, she can speak a little Nepali but not read/write it and has never lived in Nepal so would find it very difficult to move there.
19. In cross-examination, the Appellant's partner stated that she started living together with the Appellant on 15 October 2023, prior to which he lived in Hounslow. They would see each other, always together with B before they lived together, but not with any overnight staying. At first, the Appellant did not look after B alone, but later this happened sometimes before they lived together. He has not every looked after B overnight. The family celebrate birthdays and attend school events, such as parents evening and the Christmas show together. The Appellant takes B to school on his own around 2 or 3 times a week, she takes her the other days.
20. At home, B is spoken to in Nepali and English by both adults and the Appellant and his partner speak to each other in Nepali. B talks to both maternal grandparents and the Appellant's parents in Nepal and she has visited maternal family in Kathmandu. B has a good relationship with her cousins in Nepal but feels a bit awkward due to language difficulties and did not stay with them overnight. B last had contact with her biological father in about 2018.
21. The Appellant's wife was asked whether she visited the Appellant's parents in Nepal. Her answers were somewhat inconsistent, saying that she did meet them at the temple, then that it was her own parents she met at the temple, then that she met both sets of parents there as per custom. However, she had not told the Appellant she met his parents as they had previously agreed she would do so when they were together and she did not follow the custom as to where she should have met them first at their home. Part of the custom depended on whether the couple were yet married, which they were not at the time of the visit.
22. We asked about who made important decisions for B. The Appellant's wife said that they would make these together. The Appellant does not make any decisions about B alone, it hasn't been necessary and if there was something like a medical emergency, the Appellant would contact his partner first who would tell him what to do and she would join them.
23. B has visited Nepal in 2018, 2019, 2020 and 2023, although on the latter there was some differences in whether this was 'last summer', 2023, or 2024. She also met the Appellant's parents on the last occasion.
24. There is a short statement from B dated 5 January 2025, which says: "My name is [b]. My baba (Dad) name is Suman. I love him so much. We go to park, shopping, McDonald's together. He takes me to school. All my friend and my schoolteacher know him. He helps me to do schoolwork and I love him so much."
25. There was a further short statement from a family friend confirming they know and see the Appellant, his partner and B and confirm their genuine relationships. He did not give oral evidence at the hearing.
Other evidence
26. In a letter dated 5 May 2022, Viking Primary School confirmed that B has been a pupil there since 26 February 2020 and the Appellant's wife is registered as her mother with parental responsibility. A letter of the same date from Broadmead Surgery confirms the Appellant's wife and B had been registered there since January 2022.
27. In a letter dated 7 January 2025, Viking Primary School confirmed that B attends the school and lives with her mum and the Appellant.
28. There are a number of family photographs, including some at or outside of school and the dentist. In addition, there are various medical records, bank statements/bills, school documents (none of which name or refer to the Appellant), identity documents, cultural marriage documents/photographs and so on, none of which are directly relevant to the outstanding issue in this appeal and are not therefore referred to individually. We have however considered the entirety of the evidence before us.
Closing submissions on behalf of the Respondent
29. On behalf of the Respondent, it was submitted that the Appellant was not in a genuine and subsisting relationship with B as when considering the relationship, it was not comparable to that with her mother. The Respondent's position as that the evidence should be approached with some caution given the earlier preserved findings which did not accept the claims as to the nature and extent of the relationship previously and there has been little further specific evidence as to the relationship or the Appellant's involvement with B's upbringing since.
30. In terms of the documentary evidence, this now included photographs and whastapp messages, but neither show a genuine and subsisting parental relationship. There is a letter from B's school that names the Appellant, but does not include any details of his involvement with B or the school and does not name his as an emergency contact. Overall, at best it confirms that the Appellant and his partner are in a relationship, but nothing more to corroborate the claim as to parental relationship.
31. As to whether it would be reasonable to expect B to leave the United Kingdom, it was submitted that overall it was in B's best interests to be with her mother and a matter for them if they wished to relocate to Nepal with the Appellant. B is a British citizen, but has been to Nepal a number of times, has family there and although not fluent in Nepali, can communicate.
Closing submissions on behalf of the Appellant
32. On behalf of the Appellant, Mr Jaffar relied on his skeleton argument and submitted that the Appellant had clearly established that he had a genuine and subsisting relationship with B. In particular, B calls him 'baba', meaning daddy and the Appellant has a high degree of involvement with B to at least an equal if not greater extent than her mother. This is a parental type relationship and there has been no challenge to its genuineness.
33. Previously the First-tier Tribunal found that the Appellant had not given any constant assistance to his partner or B prior to sometime in 2024; although both maintain that they had lived together since late 2023. There were further messages now available to show that the Appellant and his partner had met as claimed in 2019 and further evidence now shows that their relationship started earlier as claimed. There is more evidence now of the history of the relationship than there was before the First-tier Tribunal which can be relied upon.
34. Mr Jaffar also referred to now consistent evidence of a genuine parental relationship, which is not precluded by activities as a family unit. There is no requirement for the Appellant to spend any or any particular time alone with B. The activities as a family are of a parental nature rather than as a friend and parental responsibility is not required.
35. As B is unfamiliar with the language, culture and education system in Nepal and as she is a British citizen, it would be unreasonable to expect her to leave the United Kingdom. B is also at an important time in her life. It was also highlighted that the Appellant had intended to return to Nepal to apply for entry clearance, but this had not been possible when his partner's application for indefinite leave to remain had been refused as she was not eligible to sponsor his return. The couple had, on the face of it, done what they could to regulate the Appellant's status.
Findings and reasons
36. The preserved findings of fact from the First-tier Tribunal, which deal with the Appellant's relationship with his partner and broader Article 8 issues are as follows:
18. I am satisfied that the appellant and Ms Sitaula are now in a relationship. I consider that the oral evidence in relation to spending time together and celebrating events since Christmas 2023 to be consistent and withheld cross examination.
19. I am also satisfied that the couple are now living together. The appellant has provided evidence that he registered at a GP practice local to where Ms Sitaula lives, his new patient screening was completed on 7 March 2024 (SB 9). He has also provided a copy of his bank statement confirming the address was updated to that of Ms Sitaula on 22 January 2024 (AB 10) and there is also a copy of a joint gas and electricity bill covering the period 26 March 2024 to 18 April 2024.
20. It has not been established that the couple met as long ago as 2019. The medical evidence at AB 98 indicates that Ms Sitaula lived with her husband in March 2019 and no satisfactory explanation was given for this.
21. Whilst the appellant has provided a printout of some communication between he and Ms Sitaula from 2019 (from AB 193), this does not appear to be an official printout provided by a mobile phone application, the appearance of the document is a page of messages which has been typed and so I place little weight on this.
22. I do not accept that the appellant had a significant parental role when Ms Sitaula had to keep some distance from children in September 2020, his evidence on this point was not consistent and the oral evidence did not support the claim made in his statement to have been the one looking after the child during this period.
23. Had the relationship existed at the time of the appellant's application for leave in 2021 I find that he would have mentioned this in the application or at least in the letter containing further submissions dated 18 January 2022.
24. Whilst the presence of baby teeth on photographs indicates these were taken over a period of time, this is not a reliable method of dating any photographs and not a substitute for the absence of dates on the photographs.
25. It is not possible to make a finding as to when the relationship began but I find that the relationship was not serious before the summer of 2023, had the appellant been part of the family unit at this time I find it more likely than not that the couple would have approached the school before September 2023 to request records be updated so that the appellant was named as a contact for this school year.
26. I am not satisfied that the couple started to cohabit in October 2023. The earliest document confirming cohabitation is 22 January 2024, this is when the appellant updated his address on his bank account. Had the couple been living together by 8 December 2023 I find that Ms Sitaula would not have described herself as a single parent being solely responsible for her daughter in her application for leave made on 8 December 2023. I find the duration of the cohabitation period has been exaggerated but not to a great extent.
27. Some of the cross examination focused on whether any family life could be continued in Nepal. I do not consider there are insurmountable obstacles to family life continuing in Nepal because of Ms Sitaula's connections and visits there and her knowledge of the language which her daughter understands. Having said that, in my assessment, given the nature of the relationship and the amount of time I have found it to have been ongoing, the reality is that if the appellant is required to return to Nepal, I find that the appellant and Ms Sitaula would not live together because Ms Sitaula who has been here for over 14 years would not relocate to Nepal with her daughter who has been here since birth and is now 9 and settled in school.
28. In terms of whether the appellant meets the requirements of the immigration rules the question is whether a refusal amounts to unjustifiably harsh consequences. I find that the separation of the appellant from Ms Sitaula and her daughter is not unjustifiably harsh because whilst there is a relationship, I am not satisfied that there is real strength and depth to this. I find the relationship has not been formed for a very long period of time. I do not accept that Ms Sitaula relies on the appellant to the extent that has been presented because I have found that she has managed to bring up here daughter without the constant assistance of the appellant until some time last year.
Article 8 outside of the rules
29. I am satisfied that Article 8 is engaged in terms of private life, as the appellant has been here since 2009 and also in terms of family life because I accept there is a family unit. Unlike private life, the strength of family life is not reduced by the nature of the appellant's stay which has always been precarious.
30. I have found that a refusal will mean this family unit will be separated but family life will not be severed altogether because there is nothing to prevent Ms Sitaula and her daughter maintaining indirect contact and visiting the appellant in Nepal. Ms Sitaula has travelled there in 2017 and 2020 and is clearly familiar with the culture and customs there.
31. I have considered the best interests of the child, the evidence is that Ms Sitaula's daughter has been used to spending time with the appellant but this has not been the case for the majority of her life and I do not accept that the appellant has played a significant role in her upbringing. She may prefer to continue to spend time with the appellant but as stated above, contact both direct and indirect can continue.
32. In considering the factors set out in section 117B, the appellant does speak English but there is no evidence that he will be financially independent. There is no evidence that he has worked and contributed to society by the payment of taxes in the years that has passed since he ceased his studies in 2018.
33. In terms of his private life, there is also no evidence to suggest any volunteer work or impact on the community other than the assistance that he has started to provide to his partner and her child over the past year.
37. There was no direct challenge to any of those findings, either at error of law stage or before us at the later hearing and we have no reason to disturb any of those findings.
38. As above, the outstanding issue to determine in this appeal is whether section 117B(6) of the Nationality, Immigration and Asylum Act 2002 is satisfied; for which we make further findings as to the nature of the Appellant's relationship with his step-daughter. There is no dispute that B is a qualifying child as she is a British citizen and no direct challenge to the genuineness of her relationship with the Appellant. Similarly, there was no direct submission on behalf of the Respondent that it would not be unreasonable to expect B to leave the United Kingdom, at its highest, this was referred to as a matter of choice. In circumstances where B is a British citizen who has lived all of her life in the United Kingdom, we find that it would be unreasonable to expect her to leave to move to Nepal, even though she has some family contacts, familiarity and knowledge of the language there.
39. The sole issue is therefore whether the relationship between the Appellant and B is a parental relationship such as to engage section117B(6) at all. Although we find, as did the First-tier Tribunal, that there is a form of family relationship between the Appellant and B; we do not find that it has been established on the balance of probabilities that the relationship is of a parental nature for the reasons set out below.
40. At the time of the hearing before the First-tier Tribunal (in early 2024), it was found that the relationship between the Appellant and his partner/B was of a shorter duration than claimed; had not been formed for a very long period of time and had no real strength or depth. It was also found that the extent of the reliance on the Appellant was not as much as presented. Further, it was not found that the Appellant not had any significant role in B's upbringing, it being accepted only that they had spent some time together.
41. Before us, the Appellant and his partner maintained a number of claims which had been rejected by the First-tier Tribunal without addressing at all those previous preserved findings. These included the date on which the relationship started, the date on which they moved in together, and the Appellant's involvement with B in particular around 2020. We do not find that some additional, mostly untranslated messages between the Appellant and his partner, nor additional photographs gave any rational basis upon which to depart from those earlier findings. It is clear that the Appellant and his partner were not found to be entirely credible before the First-tier Tribunal and had exaggerated the nature and extent of their relationship in the past (although in terms of cohabitation, not significantly exaggerated).
42. At the hearing before us, there were a number of inconsistencies in the oral evidence of the Appellant and his partner. These included about which relatives were visited in Nepal recently, when that visit took place, where the two of them lived prior to living together and on how many days a week they each took B to school. There was some explanation for discrepancies around dates and visits in Nepal, which in any event were not material to the issue remaining before us, nor were discrepancies as to previous addresses. However, combined with the findings of the First-tier Tribunal, we have approached the evidence of the Appellant and his partner with some degree of caution and do not necessarily accept all of their written and oral evidence as credible.
43. There was little in the way of detail from the Appellant or his partner to identify his relationship with B as a parental one, as opposed to his being part of the wider family unit because of his relationship with his partner. The majority of the activities described, consistent with family photos, show the Appellant's involvement with B primarily together with his partner rather than independently. Whilst we accept that it is not a requirement of a genuine and subsisting parental relationship for there to be time spent alone or independently by a person, the nature of a parental relationship would normally involve this. We attach weight in particular to the Appellant's partner's oral evidence that although decisions would be taken together about B, if there was an emergency, she would expect the Appellant consult with her first rather than taking his own decision/action. It would be reasonable to expect someone in a parental relationship to do this independently, particularly in an emergency situation. Further, there were no examples given of any specific decisions taken, even together, in relation to B's upbringing to show the Appellant having more of a parental role or involvement rather than just spending time with her.
44. We find the evidence of the Appellant doing things like helping B with her homework (which was said to have happened by phone long before they lived together and at a time during which it has already been found there was no significant role or relationship at all) and booking medical/dental appointments for her to be more consistent with this being a practical approach given the Appellant has better English language skills than his partner, than this being undertaken as part of a parental role.
45. We also find that there is a lack of any supporting evidence of the Appellant's role as a parent, rather than as part of the wider family unit. Specifically, we attach significant weight to the fact that despite two letters being obtained from B's school, these do not in any way support his involvement in a parental capacity at all. The first letter does not even mention the Appellant, despite his claim to have been regularly taking B to and from school prior to them living together and as early as 2020. The second letter does not state that the Appellant is an emergency contact for B at school, nor does it refer to any direct contact with him or involvement by him. For example, nothing to suggest he is also sent school reports, parents evening or event invites or the like which would normally be sent to all of those with parental involvement.
46. Overall, for these reasons, we do not find that the Appellant has established that he has a genuine and subsisting parental relationship with B. As such, he does not benefit from the section 117B(6) of the Nationality, Immigration and Asylum Act 2002. As indicated in the error of law decision, absent the Appellant benefitting from section 117B(6), there would be no reason to disturb the overall finding in paragraph 34 of the First-tier Tribunal decision that the Appellant's removal from the United Kingdom would not be a disproportionate interference with his right to respect private and family life. We heard nothing form the parties against this conclusion and as such, we dismiss the Appellant's appeal on human rights grounds.
Notice of Decision
For the reasons set out in the decision annexed, the making of the decision of the First-tier Tribunal did involve the making of a material error of law. As such it was necessary to set aside the decision.
The appeal is remade as follows:
The appeal is dismissed on human rights grounds.
G Jackson
Judge of the Upper Tribunal
Immigration and Asylum Chamber
25 th March 2025
ANNEX
A black and white emblem with lions and unicorns AI-generated content may be incorrect.
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2024-003533 |
|
First-tier Tribunal No: HU/58763/2023 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
.......................................
Before
UPPER TRIBUNAL JUDGE JACKSON
Between
SUMAN PAUDEL
(NO ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation :
For the Appellant: Mr A Jaffar of Counsel, instructed on a direct access basis
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer
Heard at Field House on 5 November 2024
DECISION AND REASONS
1. The Appellant appeals with permission against the decision of First-tier Tribunal Judge Moon promulgated on 21 May 2024, in which the Appellant's appeal against the decision to refuse his human rights claim dated 10 July 2023 was dismissed.
2. The Appellant is a national of Nepal, born on 7 July 1988, who first entered the United Kingdom on 1 October 2009 as a Tier 4 (General) student with leave to remain as such until 30 August 2012. Leave to remain as such was extended to 31 July 2015, albeit curtailed on 8 December 2014 to expire on 9 February 2015. The Appellant made a further application the same category, further to which leave to remain was granted to 4 July 2017, albeit curtailed again on 12 April 2017 to expire on 2 July 2017.
3. The Appellant made an application for leave to remain outside the Immigration Rules on 29 June 2017 which was refused by the Respondent on 2 May 2018 and a similar application made on 15 May 2018 was refused and certified as clearly unfounded on 18 January 2019. A further application was made on 18 April 2019 and the appeal against the Respondent's refusal was dismissed on 31 December 2019. The Appellant made another application on 17 November 2020 which was refused on 1 October 2021.
4. The Appellant's most recent application, which is the subject of these appeal proceedings, was made on 13 December 2021 on the basis of his private life established in the United Kingdom. At the time of application there was no claim to have established any family life within the United Kingdom.
5. The Respondent refused the application the basis that the Appellant did not meet any of the requirements under the Immigration Rules for a grant of leave to remain on private life grounds, by reference to paragraph 276ADE of the same. In particular, the Respondent did not consider that the Appellant would face very significant obstacles to his reintegration in Nepal where he lived until the age of 21 and where he still had parents and siblings living. Further, there would be no disproportionate interference with his right to respect for private and family life contrary to Article 8 of the European Convention on Human Rights.
6. The Respondent considered the Appellant's claim that he would be at risk of torture on return to Nepal from money lenders from whom he had borrowed money for his education United Kingdom and not repaid. The Appellant was offered an asylum appointment which was not taken up and in any event the Respondent considered that the Appellant's credibility on this point was damaged because it had not been raised previously and in his previous appeal his evidence was that his parents had already paid for his education in the United Kingdom. Overall, therefore it was considered that he was not at risk on return to Nepal.
7. Judge Moon dismissed the appeal in a decision promulgated on 21 May 2024 on all grounds. The decision records that the Respondent had given consent to the consideration of a new matter raised in the appeal, that being a relationship with a partner in the United Kingdom and with her nine-year-old child, who was a British citizen. The Respondent however did not accept that there was a genuine and subsisting relationship between the Appellant and either his claimed partner or her child.
8. Judge Moon found that as at the date of hearing the Appellant was in a relationship and cohabiting with his partner, albeit it was impossible to know when they met and when that relationship started. It was found that the relationship had not been a serious one at least before the summer of 2023 and there was only evidence of cohabitation from January 2024. The Judge found that there would be no insurmountable obstacles to family life continuing in Nepal, albeit accepted that in reality the Appellant's partner and her child would not relocate there. In any event, it was found that there would be no unjustifiably harsh consequences caused by the separation given that the relationship was of a short duration and had no real strength or depth to it. The Appellant could maintain contact and it was not accepted that the Appellant played a significant role in the child's upbringing. Overall, the Appellant's removal was considered to be a proportionate interference with his right to respect for private and family life in the United Kingdom.
The appeal
9. The Appellant sought permission to appeal on the basis that the First-tier Tribunal had (i) failed to properly consider the best interests of the child; (ii) made inconsistent findings; and (iii) failed to properly consider the proportionality balancing exercise required. When granting permission to appeal, UTJ Bulpitt considered that none of the grounds advanced by the Appellant were arguable as they amounted to no more than disagreement with the findings made by First-tier Tribunal. However, permission to appeal was granted on the basis of what he considered to be a Robinson obvioius point, that was that the First-to Tribunal failed to consider or make any relevant findings on the application of section 117B(6) of the Nationality, Immigration and Asylum Act 2002 ("section 117B(6)"), namely whether there was a genuine and subsisting parental relationship between the Appellant and his partner's child, and if so, whether it would be unreasonable to expect her to leave the United Kingdom.
10. At the hearing, Mr Jaffar relied on the grant of permission and in essence submitted that the First-tier Tribunal had failed to expressly refer to or ask the relevant questions in relation to section 117B(6) and did not in substance make sufficient findings on this point. Mr Jaffar accepted that there were some parts of the decision which considered aspects which would be relevant to the assessment for the purposes of section 117B(6) and submitted that there was sufficient evidence before the First-tier Tribunal for a finding of both a subsisting parental relationship and that it would be unreasonable for the child to leave the United Kingdom. In any event, none of the findings which were made by the First-tier Tribunal precluded a positive finding under section 117B(6).
11. On behalf of the Respondent, Ms Isherwood submitted that there was no material error of law in the decision of the First-tier tribunal and it was notable that section 117B(6) was not raised as an issue before the First-tier Tribunal, either in the skeleton argument or in oral submissions. The Appellant's focus was on paragraph GEN3.2 of Appendix FM and whether there were any exceptional circumstances or whether separation which be unduly harsh on any of those concerned. Ms Isherwood highlighted that there was no documentary evidence at all before the First-tier Tribunal of the Appellant having any parental responsibility for the child and to the contrary, evidence that this solely rested with her mother. It was however submitted, based on the findings that were made by the First-tier Tribunal, that in substance section 117B(6) had been considered and rejected. Read as a whole, the findings were that there was no genuine subsisting parental relationship in this case.
Findings and reasons
12. In the Appellant's skeleton argument before the First-tier Tribunal, the following issues were identified for resolution in the appeal:
(i) Is there family life between A and his partner and the BC child;
(ii) Whether or not the couple faces insurmountable obstacles in continuing his family life in Nepal;
(iii) Applying Chikwamba is it proportionate for the Appellant to return to Nepal and make an application for entry clearance.
13. In substance, the skeleton argument, submitted by Mr Jaffar, submitted that the Appellant had been entrusted with a parental role in relation to the child, with reference to that being relevant to the question of whether paragraph GEN.3.2 and GEN.3.3 of Appendix FM applied. There followed reference to case law as to a parental relationship and although there was specific reference to section 117B(1), (2) and (3) of the Nationality, Immigration and Asylum Act 2002; there was no reference to nor reliance on section 117B(6).
14. In the cases of TC (PS compliance - "issues-based" reasoning) Zimbabwe [2023] UKUT 164 (IAC) and Lata (FtT: principal controversial issues) [2023] UKUT 163 (IAC), the Upper Tribunal emphasised the duty on the parties, in accordance with the relevant practice direction to identify the principal issues to be determined by the First-tier Tribunal which in turn, together with a focussed review, will lead to a focussed and effective First-tier Tribunal decision addressing those matters, and only those matters, which need to be decided. The task of the Judge being to deal with the issues identified by the parties and not being expected to consider all potential issues that may favourably arise. The exception to this, identified in Lata is a Robinson obvious point and in the absence of such a point, a Judge's decision can not be alleged to contain an error of law on the basis that a Judge failed to take into account a point not raised before it as this would undermine the principles clearly laid out in the Procedure Rules.
15. In the present appeal, the Respondent did not dispute the issues identified by the Appellant and identified and responded to each in turn. In the First-tier Tribunal's decision, the issues are identified in paragraph 10, using slightly different wording to that used by the parties, as follows:
(a) Whether the appellant has established a genuine and subsisting relationship with his partner and British citizen child.
(b) Whether a refusal results in unjustifiably harsh consequences for the appellant, his partner or her child.
(c) Whether Article 8 is engaged, in other words, does family life exist between the appellant and his partner and her child and if so whether the relationship outweighs issues of public interest concerning immigration control.
16. The Appellant's case is summarised throughout the decision by reference to paragraph GEN.3.2 of Appendix FM to the Immigration Rules and Article 8, with nothing to suggest any amendment to the relevant issues identified or any specific reliance on section 117B(6) at the hearing. Unless section 117B(6) was a Robinson obvious point, I would not find that there was any error of law in the First-tier Tribunal not addressing this specifically given that it was not raised by the parties. The Appellant was legally represented at the hearing before the First-tier Tribunal (although I appreciate not at the point at which an application for permission to appeal was made to the Upper Tribunal) and it would be reasonable to expect if relevant (and obvious in the Appellant's favour), this would have been expressly relied upon and identified as an issue between the parties. No reason at all was advanced as to why it was not.
17. The first issue in this appeal is therefore whether section 117B(6) was a Robinson obvious point. Whilst I recognise that permission to appeal was granted on this basis, having considered the First-tier Tribunal's decision and the evidence before it, I am not entirely persuaded that it was. The principle of a Robinson obvious point stems from the Court of Appeal's decision in R (on the application of Robinson) v Secretary of State for the Home Department [1997] EWCA Civ 3090, [1997] Imm AR 568. This is summarised in paragraph 39 as:
"Because the rules place an onus on the asylum-seeker to status grounds of appeal, we consider that it would be wrong to say that mere arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are found to be in the oral argument before the special adjudicator or, so far as the Tribunal is concerned, in the written grounds of appeal which leave to appeal is sought. They are not required to engage in a search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he is not taking it, the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could properly be characterised as merely "arguable" as opposed to "obvious". ... When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. ..."
18. My concerns in particular are as to the distinction as to whether section 117B(6) was merely arguably or whether it had a strong prospect of success if argued. Although Mr Jaffar submitted that there were a number of positive findings in the First-tier Tribunal's decision and sufficient evidence to support a finding in the Appellant's favour under section 177B(6), I do not find that that was a fair or accurate reading of the decision and I find greater force in Ms Isherwood's submission that there was no documentary evidence of a parental relationship at all. Without quoting unnecessarily extensively from the First-tier Tribunal, reading it as a whole, it seems clear to me that much of the Appellant's evidence , and that of his partner (in particular the written and oral evidence), was rejected by the First-tier Tribunal; including the claimed evidence of the extent of his involvement with his partner's child. The only thing that was accepted was a relatively recent relationship and cohabitation since January 2024, but not one of any strength or depth [paragraph 28] and in relation to the Appellant's relationship with the child, it was found that although they had spent time together, the Appellant had not played a significant role in her upbringing [paragraph 31]. There is little within the evidence or the findings, read properly as a whole, to support a view a view that section 117B(6) had strong prospects of success.
19. However, given the grant of permission on this point, together with (i) the First-tier Tribunal identifying as an issue whether there was a genuine and subsisting relationship with the British child (which was broader than that identified by the Appellant or Counsel and relevant as to whether section 117B(6) was engaged at all but without a specific finding on it); (ii) that section 117B(6) was a matter to which the First-tier Tribunal must have regard in accordance with section 117A(2) of the Nationality, Immigration and Asylum Act 2002; and (iii) the point ultimately concerns the best interests of a British citizen child; I find that it was an error of law for the First-tier Tribunal not to have expressly considered and made clear findings on the point. It is however an error which was significantly contributed to by the conduct of the Appellant in failing to identify this as an issue and there was no reasonable explanation as to why, if such an obvious point that Robinson applied, it was not raised at all.
20. I do not accept Ms Isherwood's submission that in substance, the First-tier Tribunal did consider section 117B(6) and therefore implicitly rejected it on the facts of this case. Whilst there are a number of factors that were considered and could have been relevant to the assessment, there was no clear finding on whether there was a genuine and subsisting parental relationship - only that there was no significant parental relationship, which is not an answer to the relevant question and addresses a different point within the Article 8 assessment.
21. In all of these circumstances, the First-tier Tribunal decision contains a material error of law and as such it is necessary to set aside the decision of the First-tier Tribunal. There has however been no challenge to any of the factual findings made by the First-tier Tribunal (only the absence of findings on section 117B(6)), such that the findings made in paragraphs 18 to 28 and 29 to 33 of the decision are preserved. The re-making of the appeal will solely be on the basis of whether section 117B(6) is met, namely whether there is a genuine and subsisting parental relationship and if so, whether it would be unreasonable for the child to leave the United Kingdom. If so, that will be determinative of the human rights appeal and if not, there is at present no reason as to why the conclusion in paragraph 34 would be disturbed as to the final balancing exercise. As this is a fairly limited point with limited further findings required, this appeal is suitable to retain in the Upper Tribunal to determine and listing directions are given below for a further hearing.
Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of a material error of law. As such it is necessary to set aside the decision.
I set aside the decision of the First-tier Tribunal.
Listing Directions
1. The appeal to be re-listed for a face to face hearing on the first available date before UTJ Jackson with a time estimate of 2.5 hours. A Nepalese interpreter is required.
2. The Appellant may file and serve any further evidence upon which he wishes to rely no later than 14 days before the re-listed hearing. Any person who intends to give oral evidence at the hearing must file and serve a written statement (or updated written statement), signed, dated and accompanied by a statement of truth; to stand as their evidence in chief.
3. The Respondent may file and serve any further evidence upon which he wishes to rely no later than 7 days before the re-listed hearing.
G Jackson
Judge of the Upper Tribunal
Immigration and Asylum Chamber
12 th November 2024