Upper Tribunal (Immigration and asylum chamber), 2021-10-11, HU/20232/2019

IAC-FH-CK-V1

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/20232/2019

THE IMMIGRATION ACTS

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

Mr Nasir Iqbal

(ANONYMITY DIRECTION NOT MADE)

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr J Gajjar, Counsel instructed by M A Consultants (Birmingham)

For the Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Pakistan born on 13 March 1983. He appeals under Section 82 of the Nationality, Immigration and Asylum Act 2002 against a decision of the Secretary of State made on 20 November 2019 to refuse his application for leave to remain in the United Kingdom. His appeal against that decision was heard in the First-tier Tribunal on 5 March 2020 and for the reasons set out in the decision of 29 April 2020 that was refused. For the reasons set out in my decision of 23 October 2020 (a copy of which is annexed) that decision was set aside.

2. The appellant entered the United Kingdom on 26 September 2013 with a visit visa but remained here without leave and whilst here formed a relationship with Miss Jabeen, who is also a citizen of Pakistan. Miss Jabeen, who I refer to as the sponsor, has a son who is a British citizen from a previous relationship. It is her case that there is no longer any contact with the child’s father and it is the appellant’s case that he has formed now a parental relationship with the appellant. The family live together and until relatively recently the sponsor was employed.

3. The Secretary of State’s case before the First-tier Tribunal was that the appellant did not meet the requirements of the Immigration Rules nor was it accepted that the appellant had established a parental relationship.

4. The judge in the First-tier Tribunal made a number of findings. She found that the requirements of the Immigration Rules were not met, which is not challenged, that there was a subsisting relationship between the appellant and the sponsor and that there was a genuine and subsisting relationship, paragraph 18, and that the appellant enjoyed a family life in the United Kingdom with his partner and her son. The judge also found at paragraph 20 that it was in the son’s best interests to remain in the United Kingdom and it would be on balance not reasonable to expect him to leave the United Kingdom away from all his ties. The judge did not, however, find that it would be a disproportionate interference with the appellant’s right to respect for his family life to leave the United Kingdom and dismissed the appeal on that basis.

5. The appellant sought permission to appeal against that decision, which was granted on 15 June 2020 by First-tier Tribunal Judge Adio. Subsequent to that the Secretary of State in a letter made pursuant to Rule 24 of the Procedure Rules on 2 September 2020 stated that she did not oppose the application for permission and asked the Tribunal to determine the appeal with a fresh oral decision. It was on that basis that on 23 October 2020 I found that the decision of the First-tier Tribunal involve the making of an error of law, albeit without the need for a hearing. Certain findings of the First-tier Tribunal were preserved, first, that there was a subsisting family life between the appellant, his partner and her son, and identified that it was necessary, however, to consider whether there was a parental relationship between the appellant and his stepson.

6. I heard evidence from the appellant and the sponsor, both of whom adopted their witness statements and gave evidence with the assistance of a court interpreter. They were both cross-examined by Mr Tufan on behalf of the Secretary of State. I find some of the evidence of the appellant confusing about whether his wife was working or not and the nature of her work. There is unfortunately no documentary evidence as to the nature of her work beyond the payslips but taking their evidence together and looking at it in the round, I accept that she has ceased to work although she did work in the past. The confusion about there being an online company is that I think that the company fulfilled online orders but the matter is not entirely clear and I do accept the sponsor’s evidence that she is not familiar with computers and she was not working in an online capacity but I find that despite some misgivings I might have about the evidence on that point I am satisfied that the relationship subsists and I accept that the sponsor is in receipt of Universal Credit, which would make sense, given that she had previously been employed, which is not in dispute, and she is also in receipt of child benefit, which, again, would be normal in the circumstances.

7. It is for the appellant to show that his removal from the United Kingdom would be disproportionate in terms of Article 8. It is accepted that he does not meet the requirements of the Immigration Rules and that is the starting point for any assessment of his position with respect to his Article 8 rights. This is a case in which I must have regard to Section 117B of the 2002 Act. The starting point is that the appellant does not meet the requirements of the Immigration Rules. He is here unlawfully and has never had any expectation of being able to stay here. Taking that as a starting point, I consider then whether and how the subparagraphs of Section 117B apply.

8. First, the starting point would normally be that there is heavy weight to be attached in favour of removal given the failure to meet the requirements of the Immigration Rules. The appellant has not shown much of an ability to speak English nor for that matter is he now financially independent and these are factors which would normally weigh against him. Similarly, private and family life little weight can be attached to, given the terms of Section 117B(4) and 117B(5). The question then turns on Section 117B(6), which requires me to make a finding of fact.

9. Whether a parental relationship exists between somebody who is not the biological parent and a child is a fact-sensitive matter. There are a number of factors which I take into account. First, it is not in doubt and I accept that the appellant and the sponsor live together as a married couple. I accept also that the child has had no contact with his biological father and I accept the evidence, albeit somewhat unusual, that at the age of 13 he is taken to and from school by the appellant. There is also sufficient evidence in the witness statement evidence of a close relationship between the appellant and his stepson. Factors which would tend to go against that is that it is a relatively recent relationship of some three years but I find, looking at the evidence as a whole, that I am satisfied on a balance of probabilities that a parental relationship does exist between the appellant and his stepson. It follows on that basis that I am satisfied that Section 117B(6) of the 2002 Act applies in this case.

10. Mr Tufan for the Secretary of State urges me to dismiss the appeal on the basis primarily of the decision in Younas [2020] UKUT 129 on the basis that it would be proportionate to expect the appellant to return to Pakistan and make an application for entry clearance.

11. The first point to be made about Younas is that it can be distinguished on the basis that the Tribunal in Younas found that Section 117B(6) did not apply, having found that it had not been established that it was unreasonable to expect the child to leave the United Kingdom. The facts of that case were very different and the child was much younger. Secondly, and perhaps more importantly, as the Tribunal noted in Younas, Section 117B(6) is in effect a standalone provision, that is it is described as self-contained. The discussion in Younas revolves around how a Tribunal should establish whether it is reasonable to expect a child to leave, and they concluded in that case it should. That finding is what distinguishes this appeal.

12. I turn next to the more recent decision of the Court of Appeal in NA (Bangladesh)[2021] EWCA Civ 953. It is important to note what is said in that case at paragraphs 29 and 30. At paragraph 30 the Court of Appeal, in this case Lord Justice Underhill, with whom Lord Justices Singh and Warby agreed, said:

“It is important, however, to emphasise that the approach approved by Lord Carnwath in KO (Nigeria) does not provide for a presumption in the opposite direction. It represents no more than a common sense starting point adopted for the reasons given at paras 18 to...