Upper Tribunal (Immigration and asylum chamber), 2015-03-04, IA/11855/2013
| Jurisdiction | UK Non-devolved |
| Date | 04 March 2015 |
| Published date | 27 May 2015 |
| Hearing Date | 26 January 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/11855/2013 |
Appeal Number: IA/11855/2013
IAC-FH-CK-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/11855/2013
THE IMMIGRATION ACTS
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Heard at Sheldon Court, Birmingham |
Determination Promulgated |
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On 26 January 2015 |
On 4 March 2015 |
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Before
UPPER TRIBUNAL JUDGE KOPIECZEK
Between
JN
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms D Revill, Counsel instructed by Peer & Co
For the Respondent: Mr N Smart, Home Office Presenting Officer
DETERMINATION AND REASONS
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This appeal comes before me following a hearing before Upper Tribunal Judge Hanson on 6 November 2014. At that hearing he decided that First-tier Tribunal Judge Graham had erred in law in her decision in the appellant’s appeal against an immigration decision made by the respondent.
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The appellant, who is a citizen of Burundi born on 18 August 1981, appealed to the First-tier Tribunal against a decision of the respondent dated 28 March 2013, being a decision to refuse to vary leave to remain. The application was made with reference to paragraph 287 of HC 395 (as amended) and it was refused under the immigration rules, including with reference to paragraph 322(1A) having regard to the appellant’s failure to disclose a conviction for driving with excess alcohol. Having considered the Article 8 immigration rules, paragraph 322(1A), and Article 8 proper, Judge Graham dismissed the appeal on all grounds.
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For the reasons given in the ‘Error of Law Finding and Directions’ Judge Hanson concluded that the decision in respect of Article 8 of the ECHR only, was to be set aside, for the decision to be re-made in the Upper Tribunal. I set out the material parts of Judge Hanson’s decision as follows:
“ERROR OF LAW FINDING AND DIRECTIONS
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This is an appeal against a determination of First-tier Tribunal Judge Graham promulgated on 5th August 2014 in which she dismissed the Appellant's appeal, both under the Rules and on Article 8 ECHR grounds outside the Rules, against the refusal of the Secretary of State to grant the Appellant indefinite leave to remain in the United Kingdom as the spouse of a person present and settled in this country under the provisions of paragraph 287.
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The Judge considered the evidence and sets out her findings from paragraph 13 of the determination. The Judge upheld the dismissal of the appeal under the Immigration Rules on the basis the Appellant deliberately intended to mislead by failing to disclose a previous conviction which engaged paragraph 322 (1A). The Judge stated that that was determinative and that the appeal must therefore be dismissed.
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Judge Graham thereafter went on to consider the Appellants contact with his children. The Judge noted the existence of proceedings in the Family Court in Birmingham and considered the case of RS (Immigration family Court proceedings) India [2012] UKUT 00218. The Judge accepted that the family proceedings may have relevance to the appeal although thereafter stated that in light of the findings in relation to paragraph 322 (1A) the appeal must be dismissed. The Judge was not satisfied the Appellant was able to meet the requirements of the Rules as a parent of a child in the United Kingdom.
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The Judge noted the existence of a report detailing two supervised contact sessions. The Judge noted that the children live with their mother and that the Appellant has contact on a supervised basis, fortnightly, although also states "whether it is in the best interests of the children for this to continue or for this level of contact to be increased is to be determined by the Family Court at a later date". The Judge acknowledged that a favourable CAFCASS report was available and her understanding that a second report was required, but thereafter concludes:
“Bearing all of this in mind and based on the evidence before me I am unable to find that it is in the best interests of the children to have more contact with their father than the present status quo. The children are of an age where the Appellant can communicate with them by modern means of communication whether or not he is in the UK. In the circumstances I do not find that the Appellant's contact with his children amounts to compelling circumstances which would give rise to a grant of leave outside the immigration Rules.”
Error of law
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The Appellant relies on four grounds of challenge. Ground one asserts that the refusal of the application made under paragraph 287 on the basis of the engagement of paragraph 322 (1A), which is mandatory, does not apply to applications and appeals under Appendix FM. Such cases are determined by reference to the suitability criteria in S-LTR 2.2 which provides that false representations and failure to disclose material facts are discretionary and not mandatory grounds of refusal. It is stated this is a material error as the Appellant arguably met the eligibility requirements for leave to remain as the parent of a child in the UK.
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Ms Revill’s interpretation of the legal provisions is not challenged. 322(1A) is a mandatory ground for refusal which was found to be established both in relation to the failure to disclose a previous conviction and the Appellant’s intention in deliberately not making such disclosure. The language of S-LTR 2.2 indicates that this is a discretionary factor which would have to be considered along with all relevant facts when thinking about how the discretion should be exercised. The Judge does indicate that the appeal would have to be dismissed as a result of the mandatory refusal and also stated she was satisfied that the Immigration Rules could not be met. The question is whether this is as a result of a misunderstanding of the law by the Judge or not. Even if the Judge has misunderstood the law, such that she has erred, it is necessary to consider whether such error is material. The conclusion that the Appellant failed under Appendix FM too as a result of his failure to disclose a material issue in his application form, when combined with the other relevant facts known to the Judge, does not appear to be a decision outside those the Judge was permitted to make on the evidence. The Upper Tribunal when considering this matter for itself would have come to the same conclusion on the facts, leading to the finding in relation to this ground being that no material error of law has been established.
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The remaining grounds have arguable merit but only in relation to the challenge to the Judge’s treatment of the appeal outside the Immigration Rules under Article 8 ECHR in light of the material before the Judge and the existence of contact proceedings in the Family Court in Birmingham, which discloses legal error. It is not suggested or found that this is a contact application made as a means to defeat removal from the United Kingdom and it is clear that those proceedings were at a fairly advanced stage with interim contact having been arranged to reintroduce the Appellant to his children, who had not seen him since 2011, with an initial report to hand and further reports anticipated.
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The Judge refers to RS but there are a number of other relevant cases when considering the correct approach to be taken in relation to such a matter. In addition to RS (immigration and family court proceedings) India [2012] UKUT 00218 (IAC) there is RS (immigration/family court liaison: outcome) [2013] UKUT 00082 (IAC) (Blake J), and the judgement of the Court of Appeal in Mohan v Secretary of State for the Home Department [2012] EWCA Civ 1363. In Mohan the court refer to the Tribunal case of Nimako-Boateng in which it was found that the family court was best placed to make the necessary evaluations. In Nimako-Boateng there was also material before the Tribunal to justify the conclusion that it would be unnecessary to delay determination of the deportation appeal in order to await the judgment of the family court because the material in favour of the claimant lacked substance and the public interest in deportation was overwhelming. The judgment of the family court, with all of the tools at its disposal (including the assistance of CAFCASS and the opportunity to assess the adults involved) could and should inform the decision-making of...
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