Upper Tribunal (Immigration and asylum chamber), 2020-03-24, [2020] UKUT 129 (IAC) (Younas (section 117B (6) (b); Chikwamba; Zambrano))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Hanson, Upper Tribunal Judge Sheridan |
| Status | Reported |
| Date | 24 March 2020 |
| Published date | 17 April 2020 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | section 117B (6) (b); Chikwamba; Zambrano |
| Hearing Date | 14 February 2020 |
| Appeal Number | [2020] UKUT 129 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Younas (section 117B(6)(b); Chikwamba; Zambrano) [2020] UKUT 00129 (IAC)
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 14 February 2020 |
|
|
|
………………………………… |
Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE HANSON
UPPER TRIBUNAL JUDGE SHERIDAN
Between
UZMA YOUNAS
(NO ANONYMITY DIRECTIOn MADE)
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M Sarwar, Legal representative, Lexton Law Solicitors
For the Respondent: Mr T Lindsay, Senior Home Office Presenting Officer
-
An appellant in an Article 8 human rights appeal who argues that there is no public interest in removal because after leaving the UK he or she will be granted entry clearance must, in all cases, address the relevant considerations in Part 5A of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) including section 117B(1), which stipulates that “the maintenance of effective immigration controls is in the public interest”. Reliance on Chikwamba v SSHD [2008] UKHL 40 does not obviate the need to do this.
-
Section 117B(6)(b) of the 2002 Act requires a court or tribunal to assume that the child in question will leave the UK: Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661 and JG (s 117B(6): “reasonable to leave” UK) Turkey [2019] UKUT 00072 (IAC). However, once that assumption has been made, the court or tribunal must move from the hypothetical to the real: paragraph 19 of KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC 53. The length of time a child is likely to be outside the UK is part of the real world factual circumstances in which a child will find herself and is relevant to deciding, for the purpose of section 117B(6)(b), whether it would be unreasonable to expect the child to leave the UK.
-
The assessment of whether a child, as a result of being compelled to leave the territory of the European Union, will be a deprived of his or her genuine enjoyment of the rights conferred by Article 20 TFEU in accordance with Ruiz Zambrano v Office national de l’emploi (Case C-34/09) falls to be assessed by considering the actual facts (including how long a child is likely to be outside the territory of the Union), rather than theoretical possibilities.
DECISION AND REASONS
-
By a decision promulgated on 25 November 2019 (a copy of which is attached) the Upper Tribunal set aside a decision of the First-tier Tribunal promulgated on 14 May 2019. We now re-make that decision.
-
Background
-
The appellant is a citizen of Pakistan who was born, and has spent nearly all of her life, in the United Arab Emirates. On 2 May 2016, whilst pregnant with her first (and only) child, she travelled to the UK from Dubai as a visitor with leave until 6 July 2016.
-
On 4 July 2016 she applied for leave to remain in the UK on the basis that she was 30 weeks pregnant and had been advised that it was not safe for her to travel because of previous miscarriages (“the 2016 application”). In the 2016 application she requested six months leave.
-
On 6 September 2016 the appellant gave birth to her daughter, who is a British citizen.
-
The appellant’s partner (who is her child’s father) is a British citizen who has two teenage sons (born in February 2003 and September 2004) from a previous relationship.
-
In January 2018 the appellant varied her application in order to apply for leave to remain on the basis of her family life with her partner and child (“the 2018 application”).
-
On 19 March 2018 the respondent refused the application on the basis that:
-
the appellant did not qualify for leave as a partner under Appendix FM of the Immigration Rules because (i) she had not provided evidence to show she had been living with her partner for at least two years and therefore she was not a “partner” as defined in GEN.1.2. of Appendix FM of the Immigration Rules; and (ii) she was in the UK as a visitor and therefore by operation of E-LTRP.2.1 of Appendix FM was not eligible to be granted leave as a partner even if (which was accepted) there would be insurmountable obstacles to family life with her partner continuing outside the UK;
-
she did not meet any of the private life routes to leave under paragraph 276ADE(1); and
-
r efusing leave would not result in an unjustifiably harsh consequence that would breach Article 8 because, having entered the UK as a visitor, she had no legitimate expectation of being able to remain permanently; and her daughter’s rights as a British citizen would not be denied by her removal because the child could remain in the UK with her father.
-
Scope of the Appeal and Issues in Dispute
-
Mr Lindsay, in his skeleton argument, accepted that:
-
there are insurmountable obstacles to the appellant’s family life continuing outside of the UK; and
-
it would not be reasonable or proportionate for the family unit to be indefinitely separated.
-
He stated that, on the facts of the case, the appellant is expected to leave the UK for only a limited period of time in order to apply for entry clearance to join her partner and that the “narrow issue” in the appeal is whether her temporary removal from the UK is proportionate. In his submissions, Mr Lindsay clarified that it is the respondent’s case that the appellant will be able to travel to Pakistan in order to apply for entry clearance and that it is not contended that she would be able to return to the United Arab Emirates.
-
The appellant’s primary case is that respondent’s assumption that she would be able to re-enter the UK from Pakistan is mistaken as she would be unable to satisfy the financial eligibility requirements for entry as a partner. Accordingly, she contends that her appeal should be allowed because the consequence of her removal will be permanent, or at least long-term, exclusion from the UK which the respondent has conceded is not reasonable or proportionate.
-
In the alternative, the appellant argues that if (which she does not accept) she would be able to re-enter the UK after only a limited period of time, her removal wound be disproportionate under article 8 ECHR for three reasons.
-
First, she argues that her removal would be disproportionate because she meets the requirements of the Immigration Rules (both under para. 276ADE(1)(vi) and Appendix FM) and satisfying the Rules is determinative of an article 8 appeal, as explained by the Senior President of Tribunals (Sir Ernest Ryder) in TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department [2018] EWCA Civ 1109 at paragraph 34:
[W]here a person satisfies the Rules, whether or not by reference to an article 8 informed requirement, then this will be positively determinative of that person's article 8 appeal, provided their case engages article 8(1), for the very reason that it would then be disproportionate for that person to be removed.
-
Second, she submits that there is a principle, derived from the House of Lords’ judgment in Chikwamba v SSHD [2008] UKHL 40, that there is no public interest in removing a person from the UK in order to make an entry clearance from abroad that would be certain to succeed (referred to by Mr Sarwar as the “Chikwamba principle”). The appellant’s case is that as she would succeed in her application from outside the UK it follows that she falls squarely within the Chikwamba principle and her appeal should be allowed on that basis.
-
Third, she argues that it would not be reasonable to expect her daughter to leave the UK (even for a temporary period, whilst her application for entry clearance is pending) and therefore, in accordance with s117B(6) of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”), the public interest does not require her removal.
-
The appellant has advanced a further argument as to why it would be unlawful to remove her from the UK. This contention is that she is entitled to a right of residence in order to avoid her daughter being deprived of the genuine enjoyment of the substance of her European Union Citizenship rights in accordance with Ruiz Zambrano v Office national de l’emploi (Case C-34/09) and Patel v Secretary of State for the Home Department [2019] UKSC 59.
-
Evidence
Evidence of the appellant
-
The appellant adopted her witness statement dated 15 April 2019.
-
In the statement she stated that she lives with her partner, who is her fiancé.
-
She also stated that she is the main carer for their daughter and that her partner finds it difficult to undertake day-to-day care for the child. She stated that if she were to leave the UK she would bring her daughter with her as her partner would not be able to combine caring for her with his work commitments as well as the care he provides for his two sons (from a previous relationship) on weekends and during school...
To continue reading
Request your trial