Upper Tribunal (Immigration and asylum chamber), 2019-04-01, HU/01666/2018
| Jurisdiction | UK Non-devolved |
| Date | 01 April 2019 |
| Published date | 16 May 2019 |
| Hearing Date | 26 March 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/01666/2018 |
Appeal Number: HU/01666/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/01666/2018
THE IMMIGRATION ACTS
|
Heard at Bradford |
Decision & Reasons promulgated |
|
on 26 March 2019 |
On 1 April 2019 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
CHAUDHRY [M]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Caswell of Counsel.
For the Respondent: Mr Diwnycz Senior Home Office Presenting Officer
DECISION AND REASONS
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The appellant appeals with permission a determination of First-tier Tribunal Judge Mensah who in a decision promulgated on 21 December 2018 dismissed the appellant’s appeal on human rights grounds.
Background
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The appellant is a citizen of Pakistan who it is noted by the Judge at [1] sought leave to remain in the United Kingdom on the basis of his family life with his child.
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The Judge correctly notes this is a human rights appeal setting out details of the appellant’s immigration history and findings of fact between [6 – 9] of the decision under challenge in the following terms:
“6. The appellant entered the UK on the 22 July 2012 on a spouse visa valid until January 2013. On the 29 September 2015 the appellant made a successful application on the basis of family and private life, granted until 10 May 2016. He made further successful application on the same basis granted until 6 March 2017. He made the application relevant to this decision on 7 March 2017. The appellant sought leave to remain in the UK to have a family life with his son [MH] [D.O.B: [~] 2013].
7. The appellant told me he was divorced from the mother of his child in 2016. The appellant confirmed his son lives with his mother Shazia [B] and he had lived with his son for one year before their marriage ended. He last saw his son in 2015 and through family court proceedings the appellant has established access to his son restricted to sending cards and gifts/clothing. The appellant told me he commenced family court proceedings in 2016 and was granted this indirect access.
8. The appellant says he is going to seek greater access to his son through the family court but he did not know when this would happen. There is no issue taken with the fact the appellant has a son in the UK. Under the rules he would have to have shown he had a parental relationship with his child. Even on his own evidence he has no direct contact with his son and hasn’t for 3 years. He took that matter to the Family court who have determined it is in the child’s best interests he remain living with his mother and importantly the appellant be restricted to indirect contact. The appellant has filed copies of a couple of cards he says he sent to his son; who is now 5 years of age. The appellant cannot meet the conditions of paragraph 276 ADE as per the refusal letter and has not raised any very significant obstacles to integration to Pakistan. His entire case is about his relationship with his son. He has spent the majority of his life in Pakistan, he speaks Punjabi and only identified his son as his family in the UK but accepted he has family in Pakistan. He failed to show why he could not integrate. Turning to Article 8 I have considered section 117B of the Immigration Act 2014.
9. On the current evidence I am not satisfied the appellant has a subsisting parental relationship with his son. He has not seen his son for 3 years and the family court have determined that is in his son’s best interests. The appellant may wish to pursue future contact proceedings to increase access to his son but I am considering the position as at the date of the hearing. I find he has failed to show he has an existing family life with his son. However, even if he had shown a very basic family life I would have still refused this appeal as on the current evidence it is entirely proportionate for the appellant to return to Pakistan and continue to have the indirect contact he currently is entitled to have. There is no reason he cannot send cards and gift/clothing from Pakistan. I find it far too speculative to accept his intention to pursue family proceedings makes the decision disproportionate on family and private life grounds absent any credible evidence such an application has any merit whatsoever.”
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The appellant sought permission to appeal claiming (a) the decision breached his article 8 rights in the Immigration Act 2014, (b) the decision can be classed as unlawful, (c) is a clear error of law, (d) that not all the evidence was considered, (e) that he has direct contact with his child, and, (f) that he has a direct bond with his child and that his child cannot remain without him.
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Permission to appeal was granted by another judge of the First-Tier Tribunal in the following terms:
“The appellant applied for permission to appeal against the decision of Judge of the First-Tier Tribunal Mensah promulgated on 21 December 2018 in which the judge dismissed the appeal on human rights (Article 8) Grounds. The application was made 3 days out of time, the appellant prepared the grounds personally and I have exercised my discretion so as to treat the application as having been made in time. The grounds amounted to no more than a disagreement with the findings of the judge, an attempt to reargue the appeal and they did not disclose an arguable error of law but for which the outcome of the appeal might have been different. Mindful, however, that the appellant is unrepresented, I have considered the Judge’s decision in order to ascertain whether it disclosed an arguable error of law but for which the outcome of the appeal might have been different. The judge arguably failed to arrive at findings of fact in circumstances where upon it was incumbent upon her to do so. If paragraph 1 of the skeleton argument on which the appellant relied at the hearing and his witness statement were considered it was plain that in addition to the family life which the appellant maintains with his son (referred to variously as [MM] and [MH]) the appellant was also contending for family life with his current partner, Salam [B] (Mrs [B]) with whom he lives and whom, that the date of the hearing, he was intending to register as his spouse according to an Islamic ceremony. At paragraph 8 of her decision the judge remarked of the appellant, “his entire case is about his relationship with his son”. Indeed, nowhere in the judge’s decision did the judge refer to the relationship with Mrs [B] for which the appellant contended in the skeleton argument, in the witness statement by way of closing remarks made by the appellant’s representative at the hearing. That the appellant did rely on the relationship with Mrs [B] at the hearing was surely conveyed by the judge’s Record of Proceedings, the judge noting in the penultimate paragraph of her Record of Proceedings, “current marriage – Salam [B] - 10.8.17 via Islamic ceremony. Living together 10.8.7. She has ILR - see her witness statement”. It was arguably incumbent upon the judge to arrive at findings of fact in respect of the appellant’s relationship with Mrs [B] and the judge did not do so. The Judge’s decision disclosed an arguable error of law but for which the outcome of the appeal might have been different. The application for permission is granted.”
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In his Rule 24 response dated 20 March 2019 the respondent states:
“2. In granting permission to appeal, First Tier Tribunal Judge (FTTJ) Keane found that the grounds prepared by the Appellant did not disclose an arguable error of law in the decision of FTTJ Mensah. However, FTTJ Keane considered it arguable that FTTJ Mensah had erred in failing to consider the Appellant’s relationship with Ms Salma [B].
3. The Respondent notes that the decision letter of 13 December 2017 does not mention Ms [B], indicating that the Appellant did not raise this relationship in his application.
4. The Respondent relies on the recent decision in AK and IK (s.85 NIAA 2002 -new matters) Turkey [2019] UKUT 00067 (IAC), in which the Upper Tribunal approved the earlier decision in Mahmud (s.85 NIAA 2002 – ‘new matters’) [2017] UKUT 000488 (IAC). The headnote of AK and IK reads:
“If an appellant relies upon criteria that relate to a different category of the Immigration Rules to make good his Article 8 claim from that relied upon his application for LTR on human rights grounds or in his s.120 statement such that a new judgement falls to be made as to whether or not he satisfies the Immigration Rules, this constitutes a “new matter” within the meaning of s.85(6) of the Nationality, Immigration and Asylum Act 2002 which requires the Secretary of State’s consent even if the facts specific to his own case (for example, as to accommodation, maintenance et cetera) remain the same.”
5. In the Respondent submission, the...
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