Upper Tribunal (Immigration and asylum chamber), 2020-01-07, HU/07439/2019 & HU/07445/2019
| Jurisdiction | UK Non-devolved |
| Date | 07 January 2020 |
| Published date | 02 March 2020 |
| Hearing Date | 12 December 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/07439/2019 & HU/07445/2019 |
Appeal Number: HU/07439/2019; HU/07445/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/07439/2019
HU/07445/2019
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 12 December 2019 |
On 7 January 2020 |
|
|
|
Before
UPPER TRIBUNAL JUDGE SMITH
Between
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S K
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A K
[Anonymity direction made]
Appellants
And
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr R Solomon, Counsel instructed by A & P Solicitors
For the Respondent: Mr T Lindsay, Senior Home Office Presenting Officer
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity direction was made by the First-tier Tribunal Judge. I continue the anonymity direction because the Appellants are minor children. Unless and until a tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the Appellant and to the Respondent.
DECISION AND REASONS
BACKGROUND
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The Appellants appeal against a decision of First-Tier Tribunal Judge Obhi promulgated on 30 July 2019 (“the Decision”) dismissing the Appellants’ appeals against the Secretary of State’s decision dated 4 April 2019 refusing their human rights claims. The Appellants are nationals of Ghana currently aged five and four years respectively. Their mother, [VA], also a Ghanaian national has no right to remain in the UK. Her appeal against refusal of a human rights claim (based in large part on the position of the current Appellants) has been dismissed. The children’s father, [SOK], who is also a Ghanaian national has limited leave to remain based on his relationship as the father of two daughters from another relationship. Those children are British citizens. He does not live with any of the children. He has however retained contact with his British citizen children and restored contact with the Appellants in 2018, having separated from their mother in 2015.
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The Judge found that the children’s best interests were served by remaining with [VA] given their young age. Neither of the children are “qualifying children” for the purposes of paragraph 276ADE of the Immigration Rules (“the Rules”) or Section 117B (6) Nationality, Immigration and Asylum Act 2002 (“Section 117B”). The Judge found that [SOK] could go to Ghana to live or to visit the children. They could maintain contact otherwise via other forms of communication. The First Appellant has sickle cell disease, but it was found in [VA]’s previous appeal that treatment exists for that condition in Ghana. The impact of removal did not meet the threshold of Article 3 ECHR. Article 8 was not to be seen as a way of avoiding that high threshold in medical cases. Balanced against the public interest, the Judge concluded that the Respondent’s decision did not breach the Appellants’ human rights.
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The Appellants challenge the Decision on a number of grounds. First, they assert that the Judge has wrongly applied the “Devaseelan” guidelines and failed to recognise that there is good reason to depart from the findings in the previous appeal as [SOK] has re-established contact with them. Second, it is asserted that the Judge has failed to consider the Appellants’ case that they are able to meet paragraph R-LTRC.1.1(d) of Appendix FM to the Rules and paragraph 305 of the Rules as the children of a parent with limited leave to remain in the UK. Third, the Appellants submit that the Judge has conflated best interests with reasonableness of return, has failed to consider whether the children’s best interests are to remain in the UK or return to Ghana, wrongly takes into account the parents’ immigration history and wrongly applies paragraph 276ADE of the Rules and Section 117B (6) to the best interests assessment when those are irrelevant to that consideration. Fourth, it is said that if paragraph 276ADE and Section 117B (6) are relevant, then the Judge has failed to consider whether there are very powerful reasons to require the children to leave the UK. Fifth, the Appellants say that the Judge has wrongly approached the evidence about the First Appellant’s medical condition when applying the law and having failed to consider certain of the evidence. Sixth, it is said that the finding that the Appellants can maintain contact with their father and half-siblings through media communication is contrary to case-law. Seventh, it is said that the finding that [SOK] can relocate to Ghana is inconsistent with the Judge’s acceptance that he retains contact with his British citizen daughters, and they cannot be expected to leave the UK. Eighth, it is said that the Judge has failed to consider the best interests of those half-siblings when considering removal of the Appellants. Finally, it is said that the Appellants’ private lives should be accorded more than little weight applying Section 117B because they are children.
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Permission to appeal was refused by First-tier Tribunal Judge Saffer on 4 October 2019 as follows:
“The grounds have no merit at all. They amount to nothing more than a disagreement with the findings the Judge was entitled to make on the various issues in the case, and a disagreement with the decision.”
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The Appellants renewed their application to the Upper Tribunal. Permission to appeal was granted by Upper Tribunal Judge Blundell on 7 November 2019 in the following terms:
“Amongst other things, it was clearly submitted to Judge Obhi that paragraph 305 of the Immigration Rules applied to these minor appellants. That submission is recorded at [18] of the judge’s decision and appears in writing at [8] of the skeleton argument which was before the judge. It was found by the judge that the appellants enjoy a family life (albeit overstated) with their father. They are both under 18. They were born in the United Kingdom. It has not been suggested, as I understand it, that they have formed an independent family unit. And they have not been away from the United Kingdom for more than two years since birth.
In these circumstances, there was an arguable case that paragraph 305 of the Rules did indeed apply (although it might be argued by the respondent that the appellants do not seek to ‘join or remain with’ their father given the absence of current or intended cohabitation). It was arguably an error of law for Judge Obhi not to consider the application of the paragraph and any such error was arguably material, given that satisfaction of the Rules would have been positively determinative of the appeal on Article 8 ECHR grounds.
I give permission to argue each of the points in the grounds, although the issue I have identified above is potentially the most significant.”
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The matter comes before me to decide whether the Decision does contain any error of law and, if I so conclude, either to re-make the decision or remit the appeal to the First-tier Tribunal for re-making.
DISCUSSION AND CONCLUSION
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I begin with ground two which found favour with Judge Blundell when granting permission. In order to consider this ground, it is necessary to set out the relevant parts of the Rules which are as follows. The emphasis applied to the relevant sections of the Rules is mine.
Part 8 of the Rules: Paragraphs 304-309
Children born in the United Kingdom who are not British citizens
304. This paragraph and paragraphs 305-309 apply only to dependent children under 18 years of age who are unmarried and are not civil partners and who were born in the United Kingdom on or after 1 January 1983 (when the British Nationality Act 1981 came into force) but who, because neither of their parents was a British Citizen or settled in the United Kingdom at the time of their birth, are not British Citizens and are therefore subject to immigration control. Such a child requires leave to enter where admission to the United Kingdom is sought, and leave to remain where permission is sought for the child to be allowed to stay in the United Kingdom. ..
Requirements for leave to enter or remain in the United Kingdom as the child of a parent or parents given leave to remain in the United Kingdom
305. The requirements to be met by a child born in the United Kingdom who is not a British Citizen who seeks leave to enter or remain in the United Kingdom as the child of a parent or parents given leave to enter or remain in the United Kingdom are that he:
(i) (a) is accompanying or seeking to join or remain with a parent or parents who have, or are given, leave to enter or remain in the United Kingdom; or
(b) is accompanying or seeking to join or remain with a parent or parents one of whom is a British Citizen or has the right of abode in the United Kingdom; or
(c) is a child in respect of whom the parental rights and duties are vested solely in a local authority; and
(ii) is under the age of 18; and
(iii) was born in the United Kingdom; and
(iv) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
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