Upper Tribunal (Immigration and asylum chamber), 2017-05-12, DA/00063/2016
| Jurisdiction | UK Non-devolved |
| Date | 12 May 2017 |
| Published date | 07 July 2017 |
| Hearing Date | 27 April 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/00063/2016 |
Appeal Number: DA/00063/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00063/2016
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 27 April 2017 |
On 12 May 2017 |
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Before
UPPER TRIBUNAL JUDGE JORDAN
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
mr Neville Franz Delcardo Whyte
(ANONYMITY DIRECTION not made)
Respondent
Representation:
For the Appellant: Mr S. Whitwell, Home Office Presenting Officer
For the Respondent: Ms C. M. Fielden, Counsel instructed by Greenland Lawyers LLP
DECISION AND REASONS
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I annex to this determination the reasons why I considered the First-tier Tribunal had made an error of law in its decision and why the decision had to be re-made. I shall refer to Mr Whyte as ‘the appellant’, as he was before the First-tier Tribunal.
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The appellant is a citizen of Jamaica who was born on 11 May 1984. He entered the United Kingdom as a visitor on 30 July 2001 when he was just 17 years old. He was granted one month’s leave to enter. On 13 August 2001 he submitted an application to leave to remain as a student. It was refused on 19 October 2001 and his unsuccessful appeal was dismissed on 2 January 2003. This had, of course permitted the appellant to remain in the United Kingdom while the appeal process continued but he did so with no underlying right to remain. The fact that he applied for student leave so soon after his arrival (some 14 days later) strongly suggests that he was never a genuine visitor. Nevertheless, the conclusion of his appeal in January 2003 ended any period of lawful presence and thereafter he has remained without leave. As we shall later see, he remained in the United Kingdom and worked unlawfully.
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Ms Kowacka is a Polish citizen who was born on 25 February 1987. She is 30 years old. She entered the United Kingdom, she told me, on 9 June 2006, aged 19. She met the appellant, then aged 23, in July 2006 and they entered into a relationship which resulted in the birth of [N] on [ ] 2007. [N] is now aged 9.
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It may appear that the determination loses sight of [N] but that is only because the evidential and legal implications of her presence have proved complex. She remains the primary consideration of this determination. This is not a mechanistic invocation of s. 55 of the Borders, Citizenship and Immigration Act 2009 under which both the Secretary of State and the Tribunal are placed under a duty to make arrangements for ensuring that immigration, asylum, and nationality functions are discharged having regard to the need to safeguard and promote the welfare of children in the United Kingdom. Rather, [N] becomes the driving force behind the appellant’s arguments on proportionality. For the reasons that follow, neither the appellant nor Ms Kowacka can lay claim to a compelling case that the appellant’s removal is disproportionate. Instead, it is [N] who becomes the focus of the proportionality exercise; after all, she is the innocent victim of these events and whilst her best interests are not the only or, indeed, the paramount consideration, they remain in the forefront of my mind.
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According to paragraph 5 of the determination of the First-tier Tribunal Judge (‘the determination’), Ms Kowacka had told the authorities in the course of the appellant’s earlier application for a residence card that the relationship had not subsisted since [N] was born in 2007. The same is recorded in the decision letters. Ms Kowacka made no express denial of what she is alleged to have told the authorities either in her statement or in her evidence. The couple may well have kept in touch. I am not satisfied they were living together. There was apparently no satisfactory evidence of cohabitation. However, it seems probable that the appellant was visited by Ms Kowacka and [N] while he was in prison. It appears he joined her after his release from prison on 18 December 2013. I am, however satisfied that the couple married on 30 May 2014 and, since that time, have enjoyed a genuine and durable relationship with each other. [N] has, of course, been part of the household.
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On 3 July 2012 the appellant was convicted of an offence of wounding with intent to do grievous bodily harm, the event having taken place on 22 February 2012. He was sentenced to 3 years’ imprisonment and an additional four months’ imprisonment for an associated offence of an assault occasioning actual bodily harm. Pursuant to s. 32(5) of the UK Borders Act 2007 the appellant was subject to automatic deportation subject to the exceptions contained within s. 33 of the 2007 Act and, in particular, that his removal would violate his human rights.
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A deportation order was signed against the appellant on 14 June 2013 on which reliance was placed by the Secretary of State on paragraphs 398, 399 and 399A of the Immigration Rules to the effect that deportation was lawful. The appellant lodged an appeal against that decision on 10 July 2013 which was scheduled to be heard on 30 September 2013 but adjourned in order to permit the appellant to make an application based upon what he claimed was his durable relationship with Ms Kowacka. In due course, on 22 October 2013 such an application was indeed made based upon his being an unmarried partner of a Union citizen exercising Treaty rights. That application was refused on 29 November 2013. It was presumably at this stage that Ms Kowacka told the authorities that the relationship had not subsisted since [N] was born in 2007. The refusal was not challenged by the appellant by way of an onward appeal or in judicial review proceedings.
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The substantive hearing against the appellant’s deportation decision was still outstanding. That decision was adjourned until 24 June 2014. At the hearing the appellant presented a marriage certificate showing that on 13 May 2014, a month before, the appellant had married Ms Kowacka. The appeal was, accordingly, adjourned to permit the Secretary of State to reconsider the case in light of his marriage. Thereafter, the appeal moved away from a deportation appeal to which the appellant had responded by raising its human rights claim and had moved into the territory of the Immigration (European Economic Area) Regulations 2006 (2006 No 1003). From then on, the appeal had these two separate strands within it; the EEA appeal and the deportation appeal.
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The decision made by the Secretary of State on 18 June 2013 was limited to a consideration of the appellant’s human rights claim following the application of the automatic deportation provisions in the 2007 Act. The decision recorded that [N] was born in the United Kingdom and consideration was given to the deportation of a parent of a British child, see page 5 of 14 of the 18 June 2013 decision letter.
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Later, a further decision was made on 26 January 2016. This is the formal decision by the respondent under the 2006 Regulations, the EEA decision. A subsequent decision was made on 4 March 2016 apparently resolving the same issue. Nothing turns on how these two decisions came to be made. In paragraph 13 of the 26 January 2016 decision, [N] is recorded as being of British Polish and Jamaican citizenship. The same is recorded in paragraph 13 of the March 2016 decision. Accordingly, the consideration of the appellant’s human rights and his EEA rights were viewed through the prism of [N] as a British child.
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I raised my concerns with the parties at the error of law hearing. The appellant’s case was being advanced on the basis that he had a permanent right of residence based upon his relationship with a Union citizen who also enjoyed such a right. If Ms Kowacka had settled status, [N] born in the United Kingdom would have derived her British nationality through her mother’s status. This would suggest that Ms Kowacka did, indeed, enjoy a right to permanent residence. However, I was not content to find Ms Kowacka’s status established by a bare inference. In particular, I could not fathom how [N], born in June 2007, could derive her British citizenship from the settled status of her mother’s permanent right of residence when Ms Kowacka had only arrived in the United Kingdom in the course of the previous June. I, therefore, made a direction following the hearing on 21 December 2016 in the following terms:
“Mr Whyte (‘the appellant’) is to file and serve a skeleton argument setting out the circumstances that give rise to his wife’s right to remain in the United Kingdom. Insofar as those rights are derived from her status as an EEA national, those rights are to be explained. The skeleton argument is to set out the basis of the appellant’s rights under EU law, if any, derived from (i) those of his wife and (ii) those of his daughter. Finally, the skeleton argument is to set out all relevant...
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