United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/00968/2016

 

THE IMMIGRATION ACTS

 

Heard at Manchester	Decision & Reasons Promulgated
On May 4, 2018	On May 11, 2018

Before

 

DEPUTY UPPER TRIBUNAL JUDGE ALIS

 

Between

 

MRS FARHAT JABEEN

(NO ANONYMITY DIRECTION MADE)

Appellant

 

and

 

the Secretary of State for the Home Department

Respondent

 

Representation :

For the Appellant: Miss Bremag, Counsel, instructed by Protection of Human Rights

in Public Law

For the Respondent: Mr McVeety, Senior Home Office Presenting Officer

Interpreter: Miss Mehter

 

 

DECISION AND REASONS

1.              I do not make an anonymity order.

2.              The appellant is a national of Pakistan. She entered the United Kingdom most recently as a visitor on May 6, 2005. When she entered the United Kingdom she had with her two children. Both children had been born in America and were therefore citizens of the United States of America. Since being here she has also given birth to her youngest son.

3.              Shortly after being served with Form IS 151A as an overstayer her husband applied for asylum on behalf of himself and their two sons but he was refused by the respondent on March 26, 2010.

4.              She then made an application on family/private life grounds for limited leave to remain but this was refused on June 1, 2015.

5.              On October 22, 2015 the appellant lodged a protection and human rights claim but this was refused by the respondent on January 15, 2016. The appellant appealed that decision on February 1, 2016 and her appeal came before Judge of the First-tier Tribunal Williams on May 15, 2017 and in a decision promulgated on June 14, 2017 the Judge dismissed all her claims.

6.              Grounds of appeal were lodged on July 7, 2017 and Judge of the First-tier Tribunal Adio granted permission to appeal on July 19, 2017 identifying that the Judge had erred in his approach to paragraph 276ADE HC 395 as he had failed to have regard to the eldest two children in his consideration.

7.              A rule 24 statement dated August 7, 2017 opposed the application but when the matter came before me on the above date Mr McVeety accepted that there was an error in law because firstly the Judge had taken as his starting point a decision of Judge of the First-tier Tribunal Nicholson as his starting point, even though that decision was almost 6 years old, and secondly; the Judge should have considered the position of the two eldest children who had been in the United Kingdom for over 12 years when he heard the appeal. The failure to consider their interests under the Immigration Rules was, he conceded, an error in law.

8.              Having considered the grounds of appeal and Mr McVeety's submissions I agreed there was an error in law. Whilst a previous decision from 2011 could be relevant to an asylum claim I was satisfied that the human rights position would have substantially changed between 2011 and 2017 when this appeal was reheard. Taking the earlier findings as a starting point for human rights purposes amounted to an error in law. Additionally, the Judge should have considered the position of the two eldest children as they were the appellant's dependants. They clearly came within paragraph 276ADE(iv) HC 395 and in such circumstances that consideration should have been addressed before any article 8 consideration. There was merit therefore in both grounds of appeal.

9.              The representatives agreed that this decision could be remade in the Upper Tribunal and I was informed by the appellant's representative that the eldest two children, in particular, were taking various GCSE examinations and had established a considerable private life. Their primary carer remained their mother.

10.          The starting point of any reconsideration is whether the appellant can establish that the Immigration Rules were met. The appellant had two children who were aged three and four when they entered the United Kingdom with her. They had been here ever since and had spent their formative part of their lives in this country attending school, establishing themselves within the community and learning the language.

11.          There was evidence contained within the papers that they were taking exams and both were intent on taking A-levels. There was a younger sibling who was born on December 13, 2010 who was a Pakistani national. The weight to be attached to that child is less than the weight attached to the older two children who effectively have lived the majority of their lives in this country and who were born in America.

12.          Paragraph 276ADE HC 395 had to be considered in this appeal. The starting point in any human rights appeal is whether the Immigration Rules were met. Both children came within paragraph 276ADE(iv) HC 395 as they had lived here for more than seven years. The issue was therefore whether it would be reasonable to expect them to leave the United Kingdom.

13.          The respondent's own policy from February 2018 places an emphasis on whether a child would have to leave the United Kingdom in the event of a refusal decision. These children were dependants of the appellant and it therefore follows that if she had to leave the United Kingdom they would have to follow with her. The children would be unable to remain if their primary carer would have to leave.

14.          Taking into account all the background and the time these two children, in particular, had been in the United Kingdom I am satisfied that requiring them to leave the United Kingdom would be unreasonable.

15.          Whilst the appellant herself would not have succeeded under paragraph 276 ADE HC 395 I am satisfied that her two dependent children would have succeeded and it therefore follows that it would be unreasonable to require the appellant to leave the United Kingdom.

16.          Having established that the Immigration Rules would had been met so far as the children were concerned it follows the appellant also succeeds as she is their primary carer.

17.          On the basis the Immigration Rules were met the appellant succeeds under article 8 ECHR as the public interest does not require removal where a person meets the Immigration Rules.

18.          For the record, Mr McVeety did not disagree with this approach in light of the evidence presented in this case to the Tribunal.

DECISION

19.          The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

20.          I have set aside the original decision only insofar as the article 8 ECHR decision is concerned. In all other respects the decision is upheld.

21.          I remake the decision by allowing the appeal under article 8 ECHR.

 

 

Signed Date 04/05/2018

 

Deputy Upper Tribunal Judge Alis

 

 

 

TO THE RESPONDENT

FEE AWARD

 

I make no fee award as the appeal has been allowed following further evidence been submitted after the initial refusal decision.

 

 

Signed Date 04/05/2018

 

Deputy Upper Tribunal Judge Alis