Upper Tribunal (Immigration and asylum chamber), 2017-06-08, IA/50080/2014

JurisdictionUK Non-devolved
Date08 June 2017
Published date24 July 2017
Hearing Date02 May 2017
StatusUnreported
CourtUpper Tribunal (Immigration and Asylum Chamber)
Appeal NumberIA/50080/2014

Appeal Number: IA/50080/2014


Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/50080/2014



THE IMMIGRATION ACTS


Heard at Newport (Columbus House)

Decision & Reasons Promulgated

On 2 May 2017

On 8 June 2017




Before


UPPER TRIBUNAL JUDGE GRUBB

DEPUTY UPPER TRIBUNAL JUDGE DAVIDGE


Between


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT


Appellant

and


R L B

(ANONYMITY DIRECTION MADE)


Respondent


Representation:


For the Appellant: Mr S Kotas, Senior Home Office Presenting Officer

For the Respondent: Mr G Hodgetts instructed by South West Law



DECISION AND REASONS

  1. The anonymity order made in our decision promulgated on 10 March 2017 remains in force. The order was imposed, and remains in force, in order to protect the anonymity of RLB’s children.

  2. For convenience, we will refer to the parties as they appeared before the First-tier Tribunal.

Introduction

  1. The appellant is a citizen of the United States of America who was born on [ ] 1984. In 2009, the appellant began a relationship with a British Citizen (“JB”). They married in the United Kingdom in April 2011. They have three children, “A1” born on [ ] 2011, “A2” born on [ ] 2013 and “A3” born on [ ] 2015. All three children are British Citizens.

  2. The appellant served in the US Military. As a consequence, during the course of his relationship with JB, he spent much of his time in the USA. JB lived in the USA (although not necessarily with the appellant) between March 2012 and February 2013 along with A1. They returned to the UK in late February 2013. Shortly after, JB discovered that she was pregnant. The appellant came to the UK as a visitor on 15 October 2013 shortly before A2 was born. Thereafter, he overstayed his leave and has remained in the UK since that date.

  3. On 19 August 2014, the appellant and JB were interviewed by Immigration Officers and the appellant was served with a notice of removal under s.10 of the Immigration and Asylum Act 1999.

  4. In September 2014, the local social services became involved with the appellant and his family following contact from the police. This arose because of information received from the USA concerning the appellant’s conduct there in May-October 2012. That conduct involved sexually explicit contact with women and young girls through internet chat rooms. Some of those with whom he was in contact were underage. A civil investigation took place in the USA and subsequently the appellant was discharged from the US Military for misconduct.

  5. The appellant was told by the social services that he should inform JB of the investigation in the US or the children (A1 and A2) would be removed and placed in care. When he did so, the relationship with JB came to an end and they separated on 29 September 2014. JB suffers from mental health problems and A1 and A2 went to live with JB’s parents.

  6. Currently, as a result of Family Court proceedings A1 and A2 live with their maternal grandparents under Child Arrangement Orders. A3, who was born in February 2015, is subject to a care order and initially resided with JB. However, since January 2017, because of a deterioration in JB’s mental health, A3 has been placed with foster parents.

  7. The appellant, pursuant to an order of the Family Court, has supervised contact with A1 and A2 on 10/12 per year basis. Although the appellant does not formally have contact with A3 pursuant to a court order, A3 has accompanied A1 and A2 on occasions of supervised contact with the appellant. JB has contact with A3 four times a week.

  8. At the hearing, we were told that the appellant has applied to the Family Court for custody of all three children, in particular in relation to A3. That application, we were told, was made on 26 April 2017. A copy of the application is in the papers.

  9. On 10 October 2014, the appellant was detained in order to remove him. However, on 10 November 2014, the appellant applied for leave to remain relying upon Art 8 of the ECHR and, in particular, his relationships with his children.

  10. On 8 December 2014, the Secretary of State refused the appellant’s claim for leave under Art 8 and made a new decision to remove him under s.10 of the IA Act 1999. The appellant was released from detention in January 2015.

The Appeal

  1. The appellant appealed to the First-tier Tribunal. His appeal was heard on 26 May 2016 by Judge Loughridge. He relied upon Art 8 and principally upon his relationships with A1 and A2. He did not then rely on any relationship with A3, who at that time lived with JB, and he accepted JB’s position that she did not wish the appellant to have any contact with her or A3.

  2. Judge Loughridge allowed the appellant’s appeal under Art 8. First, he concluded that the appellant could not succeed under the relevant rules in Appendix FM because his history of sexual activity conducted via the internet with, inter alia, underage girls meant he fell within the suitability requirement in S-LTR.1.6.1 in that it made his “presence … in the UK … not conducive to the public good” so that it was “undesirable to allow [him] to remain in the UK”. Secondly, Judge Loughridge accepted that the appellant had a “genuine and subsisting parental relationship” with A1 and A2 who were each a “qualifying child” as defined in s.117D(1) of the Nationality, Immigration and Asylum Act 2002 (“NIA Act 2002”). Applying s.117B(6) of the NIA Act 2002, Judge Loughridge found that it was not “reasonable to expect” either A1 or A2 to leave the UK and, as a result, the public interest did not require the appellant’s removal. Thus, the judge allowed the appeal under Art 8 outside the rules.

  3. The Secretary of State sought to appeal that decision. Permission was initially refused by the First-tier Tribunal but on 17 November 2016, the Upper Tribunal granted the Secretary of State permission to appeal.

  4. The appeal came before us on 27 February 2017. In our decision promulgated on 10 March 2017, we concluded that the judge’s decision to allow the appeal under Art 8 involved the making of a material error of law in that the judge had failed to take into account the “public interest” in determining whether it was reasonable to expect A1 or A2 to leave the UK as required by the Court of Appeal’s decision in R (MA and Others) (Pakistan) v SSHD [2016] EWCA Civ 705 which post-dated Judge Loughridge’s decision.

  5. As a consequence, we set aside Judge Loughridge’s decision and directed that the appeal be relisted before the Upper Tribunal in order to remake the decision under Art 8.

The Hearing

  1. The hearing to remake the decision took place on 2 May 2017 when the appellant was again represented by Mr Hodgetts of Counsel and the Secretary of State was, on this occasion, represented by Mr Kotas, a Senior Home Office Presenting Officer.

  2. Mr Hodgetts indicated that he did not intend to call any oral evidence and that the appeal should proceed on the basis of submissions and the documentary evidence before us.

  3. In that latter regard, in addition to the bundles of documents before the First-tier Tribunal (“FTT1” and “FTT2”), Mr Hodgetts sought permission to admit before us three further bundles (“UT1”, “UT2” and “UT3” respectively) under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269 as amended) and a position statement from the local social services dated 27 April 2017. Mr Kotas indicated that he had no objection to these documents being admitted and, on behalf of the Secretary of State sought permission to admit into evidence email correspondence from the USA relating to the investigation of the appellant there. Mr Hodgetts did not object to the admission of this email having taken instructions from the appellant.

  4. In the circumstances, we considered it proper to admit the new evidence under rule 15(2A).

The Submissions

  1. On behalf of the appellant, Mr Hodgetts put the appellant’s case on two bases under Art 8 of the ECHR.

  2. Mr Hodgetts principally placed reliance upon s.117B(6) of the NIA Act 2002.

  3. Mr Hodgetts submitted that the appellant had a “genuine and subsisting parental relationship” with each of A1, A2 and A3 who were each qualifying children. It was in their best interests to retain contact with the appellant. He submitted that these matters had been accepted by the Senior Presenting Officer before the Upper Tribunal at its earlier hearing.

  4. Mr Hodgetts accepted that in the light of MA (Pakistan) the “reasonableness” of whether A1, A2 and A3 should leave the United Kingdom had to be determined in the light of the public interest.

  5. Mr Hodgetts relied upon the following factors:

(1) All three children are British;

(2) A2 and A3 were born in the UK and had never left the UK. A1 was also born in...

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