Upper Tribunal (Immigration and asylum chamber), 2016-05-24, IA/10983/2015
| Jurisdiction | UK Non-devolved |
| Date | 24 May 2016 |
| Published date | 23 May 2017 |
| Hearing Date | 03 May 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/10983/2015 |
Appeal Number: IA109832015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10983/2015
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 3 May 2016 |
On 24 May 2016 |
|
|
|
Before
DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN
Between
MOHAMAD RADI LAHUAK
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: No appearance
For the Respondent: Mr T Melvin, Home Office Presenting Officer
DECISION AND REASONS
-
The appellant is a citizen of Iraq who was born on 1 July 1981. This appeal arises from the respondent’s decision to refuse his application for leave to remain in the UK on the basis of his private and family life under Article 8 ECHR. The appellant’s ensuing appeal was heard by First-tier Tribunal (“FtT”) Judge Manuell who, in a decision promulgated on 2 October 2015, dismissed the appeal. The appellant now appeals that decision.
Background
-
In 2007 the appellant left Iraq and was granted refugee status in Bulgaria. He then moved to Denmark.
-
The appellant’s sister lives in the UK. In 2010, whilst the appellant was in Denmark, his sister introduced him to a female British citizen, originally from Kuwait, who visited him in Denmark and subsequently became his partner.
-
In September 2011 the appellant was refused leave to enter the UK.
-
In January 2013 the appellant entered the UK unlawfully. On 26 February 2013 he and his partner entered into an Islamic marriage and began living together.
-
The appellant and his partner have two children: the eldest was born on 2 December 2013 and the youngest was born on 29 January 2016. Both are UK citizens. The eldest child has medical problems relating to her hip, for which she has required surgery on several occasions.
-
The appellant applied for leave to remain on the basis of his relationship with his partner and their first child (the second child not yet having been born). The respondent refused the appellant’s application, finding both that he was unable to satisfy the relevant Immigration Rules (Appendix FM and Section 276ADE) and that there were no exceptional circumstances that would warrant a grant of leave to remain outside the Rules.
Decision of First-tier Tribunal
-
At paragraph [11] the FtT stated that Counsel for the appellant accepted that the Immigration Rules could not be met. The decision does not include any consideration of the Immigration Rules and only assesses the appellant’s Article 8 claim outside the framework of the Rules.
-
The FtT accepted that the appellant had established a family life in the UK with his partner and child. It then proceeded to consider whether there were compelling or exceptional circumstances that would warrant the appeal being allowed outwith the Rules. In finding that there were not, the FtT identified a number of factors relevant to the proportionality of the appellant being removed from the UK. These included the following:
-
The appellant is a persistent immigration offender and his partner has been “complicit in his behaviour”.
-
His marriage has not been recognised in English law and he and his partner chose to have children knowing he had no right to be in the UK
-
The appellant and his wife have no real ties to the UK and have “shown wholesale contempt for UK law”
-
The appellant’s partner has family in the UK, including a sister in law, who could assist her if she remained in the UK whilst her partner was removed.
-
Family life with the appellant’s partner and child could continue, and the future needs of the appellant’s child could be met, outside the UK. The decision as to whether the family life should continue outside the UK would be a choice for the appellant and his partner.
-
-
At paragraph [4], when setting out the relevant law, the FtT stated that Sections 117A-D of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) must be taken into account. Consideration of these sections was undertaken at paragraphs [19] and [20] where it was stated:
“19. ... The appellant met none of the positive factors set out in section 117B, which in any event do not create a right of entry.
20. The appellant has recently established family life in the United Kingdom, which was no longer in dispute. The appellant developed his family life in the United Kingdom while he and Mrs Al Anazi [his partner] were well aware that his presence was “precarious” to apply the terms used in section 117B(6). Indeed, it could hardly be more precarious”
-
At paragraph [21] the FtT assessed the best interests of the appellant’s child, and stated as follows:
“21. The best interests of the appellant’s child favour the appellant’s presence in the United Kingdom. But this is a special situation where there has been flagrant breach of immigration control. The child’s best interest are not paramount. No evidence was provided to show that family life could not be lived elsewhere, as already noted above. The child is young and adaptable. Her medical needs have been met. There was no evidence that any future needs could not be met elsewhere. Many British Citizens live abroad by choice, which in the present appeal would (if in fact made) be a choice of the parents”
Grounds of appeal and submissions
-
Several grounds of appeal were submitted but permission to appeal was limited to two of the grounds which, taken together, essentially argue that the FtT erred by failing to properly construe and apply Section 117B(6) of the 2002 Act or give proper consideration to the best interests of the appellant’s child.
-
Mr Lahuak was not represented and addressed the Tribunal through an interpreter. He explained that he now has two children, both of whom are British citizens. In response to questions posed about his status in Bulgaria, he submitted that he previously had temporary residence but this had now expired. He claimed that he would not be able to return to Bulgaria – or Denmark (where his status depended on his right to reside in Bulgaria) - and would, if removed from the UK, have no alternative other than to be sent to Iraq. He considers it unacceptable to be sent to Iraq because of the danger he maintains he and his family would face. His wish is to live in the UK in peace and safety with his wife and children, all of whom are British citizens.
-
Mr Melvin argued that, taking all of the material circumstances together, it was clear that it was proportionate, and reasonable, for the appellant to be removed and there were no compelling circumstances that would justify the appeal being allowed outside the Rules.
-
He argued that the FtT had not misapplied Section 117B(6) of the 2002 Act. To the extent that its decision was inconsistent with Treebhawon and others (section 117B(6)) [2015] UKUT 00674 (IAC), Mr Melvin argued that (a) Treebhawon was promulgated after the FtT decision and (b) Treebhawon was wrongly decided and should not be followed. He argued that the correct interpretation of Section 117B(6), when having regard to Section 117A(2), is that all of the factors in Section 117 must be considered and it should not be treated as a stand-alone provision. This, he argued, is consistent with KMO (section 117 - unduly harsh) Nigeria [2015] UKUT 543 (IAC) as well as a recent unreported decision (which I was invited to consider).
Consideration of the applicable law
-
Part 5A of the 2002 Act sets out mandatory public interest considerations that the FtT must take into account when assessing the proportionality of a person’s removal from the UK under Article 8 outside the framework of the Immigration Rules.
-
One of the considerations in Part 5A is section 117B(6) which states:
‘(6) 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.
-
On its face, the wording in 117B(6) is very clear: where a person satisfies subsections 6(a) and 6(b) the public interest does not require his or her removal.
-
The Upper Tribunal recently, in Treebhawon and others (section 117B(6)) [2015] UKUT 00674 (IAC), considered how Section 117B(6) should be interpreted and stated as follows:
“20. In section 117B(6), Parliament has prescribed three conditions, namely:
-
the person concerned is not liable to deportation;
-
such person has a genuine and subsisting parental relationship with a qualifying child, namely a person who is under the age of 18 and is a British citizen or has lived in the United Kingdom for a...
To continue reading
Request your trial