Younas (Section 117B(6)(B); Chikwamba; Zambrano)

JurisdictionUK Non-devolved
JudgeLane J,Hanson,Sheridan UTJJ
Judgment Date24 March 2020
Neutral Citation[2020] UKUT 129 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)

[2020] UKUT 129 (IAC)

UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

Lane J (President), Hanson and Sheridan UTJJ

Younas (Section 117B(6)(B); Chikwamba; Zambrano)
Representation

Mr M Sarwar, Lexton Law Solicitors, for the Claimant;

Mr T Lindsay, Senior Home Office Presenting Officer, for the Secretary of State.

Cases referred to:

AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801; [2008] 2 All ER 28; [2008] Imm AR 158; [2007] INLR 407

Chikwamba v Secretary of State for the Home Department [2008] UKHL 40; [2008] 1 WLR 1420; [2009] 1 All ER 363; [2008] Imm AR 700; [2008] INLR 502

Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799; [2017] 3 All ER 20; [2017] Imm AR 484; [2017] INLR 109

JG (s 117B(6): “reasonable to leave” UK) Turkey [2019] UKUT 72 (IAC)

KD (Sri Lanka) v Secretary of State for the Home Department [2007] EWCA Civ 1384

KO (Nigeria) v Secretary of State for the Home Department; IT (Jamaica) v Secyttaiy of State for the Home Department; NS (Sri Lanka and Others) v Secretary of State for the Home Department; Pereira v Secretary of State for the Home Department[2018] UKSC 53; [2018] 1 WLR 5273; [2019] 1 All ER 675; [2019] Imm AR 400; [2019] INLR 41

Parveen v Secretary of State for the Home Department [2018] EWCA Civ 932

Patel v Secretary of State for the Home Department; Secretary of State for the Home Department v Shah[2019] UKSC 59; [2020] 1 WLR 228; [2020] 2 All ER 557; [2020] 2 CMLR 12; [2020] Imm AR 600; [2020] INLR 350

R (on the application of Agyarko) v Secretary of State for the Home Department; R (on the application of Ikuga) v Secretary of State for the Home Department[2017] UKSC 11; [2017] 1 WLR 823; [2017] 4 All ER 575; [2017] 3 CMLR 3; [2017] Imm AR 764; [2017] INLR 548

R (on the application of Chen) v Secretary of State for the Home Department Appendix FM – Chikwamba – temporary separation – proportionality) IJR [2015] UKUT 189 (IAC); [2015] Imm AR 867

R (on the application of Ekinci) v Secretary of State for the Home Department [2003] EWCA Civ 765; [2004] Imm AR 15

R (on the application of MA (Pakistan) & Ors) v Upper Tribunal (Immigration and Asylum Chamber) & Anor; Pereira v Secretary of State for the Home Department; NS (Sri Lanka) & Ors v Secretary of State for the Home Department; AR (Sri Lanka) & Ors v Secretary of State for the Home Department; CW (Sri Lanka) & Ors v Secretary of State for the Home Department; AZ (Pakistan) & Ors v Secretary of State for the Home Department[2016] EWCA Civ 705; [2016] 1 WLR 5093; [2017] Imm AR 53; [2017] INLR 47

Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58; [2018] 1 WLR 5536; [2019] 1 All ER 1007; [2019] Imm AR 452; [2019] INLR 233

Secretarv of State for the Home Department v AB (Jamaica) and AO (Nigeria) [2019] EWCA Civ 661; [2019] 1 WLR 4541; [2019] Imm AR 1126; [2019] INLR 480

Secetary of State for the Home Department v Kamara [2016] EWCA Civ 813; [2016] 4 WLR 152

Secretary of State for the Home Department v R (on the application of Kaur) [2018] EWCA Civ 1423; [2018] ImmAR 1364

Secretary of State for the Home Department and Treebhowan v Hayat and Secretary of State for the Home Department [2012] EWCA Civ 1054; [2013] Imm AR 15; [2013] INLR 17

TZ (Pakistan) v Secretary of State for the Home Department; PG (India) v Socretary of State for the Home Department[2018] EWCA Civ 1109; [2018] Imm AR 1301

Zambrano v Office national de I'emploi (Case C-34/09); [2012] QB 265; [2012] 2 WLR 886; [2011] All ER (EC) 491; [2011] 2 CMLR 46; [2011] Imm AR 521; [2011] INLR 481

Legislation and international instruments judicially considered:

European Convention on Human Rights, Article 8

Immigration Act 1971, section 3C

Immigration Rules HC 395 (as amended), paragraph 276ADE(1) and paragraphs E-LTRP.2.1, EX. 1(b) & GEN. 1.2 of Appendix FM

Nationality, Immigration and Asylum Act 2002, sections 117A & 117B

Treaty on the Functioning of the European Union, Article 20

Human rights — Article S of the ECHR — family life — proportionality — public interest — immigration — children — entry clearance — temporary removal with British national child — section 117B(6)(h) of the Nationality, Immigration and Asylum Act 2002 — Chikwamba considered — Zambrano distinguished — Appendix F M and paragraph 276ADE (I) of the Immigration Rules considered

The Claimant, a citizen of Pakistan, was born, and had lived most of her life, in the United Arab Emirates. In May 2016 she entered the United Kingdom as a visitor. At that time, she was in a relationship with a British national and pregnant with his child. Before the expiry of her visa, the Claimant applied for six months' leave to remain on the grounds that she had been advised that it was not safe for her to travel on medical grounds. In September 2016 she gave birth to her daughter, a British citizen. She remained in the United Kingdom, living with her partner and child as a family unit. Her United Arab Emirates residency visa expired at the end of 2016.

In January 2018 the Claimant varied her application to apply for leave to remain on the basis of her family life. The Secretary of State for the Home Department refused the application on the grounds that the Claimant did not qualify for leave as a partner under Appendix FM of the Immigration Rules HC 395 (as amended) and did not meet any of the private life routes to leave to remain under paragraph 276ADE(1) of the Rules. Moreover, refusing leave would not result in an unjustifiably harsh consequence that would breach Article 8 of the ECHR. The Secretary of State concluded that the Claimant had no legitimate expectation of being able to remain in the United Kingdom permanently and that her daughter would not be denied her rights as a British citizen by her removal because the child could remain in the United Kingdom with her father. The First-tier Tribunal (“FtT”) dismissed the Claimant's appeal against that decision in May 2019. In November 2019 the Upper Tribunal (“UT”) set aside the FtT's decision.

Before the UT, the Secretary of State conceded that there were insurmountable obstacles to the Claimant's family life continuing outside the United Kingdom and that it would not be reasonable or proportionate for the family unit to be indefinitely separated. The Claimant was expected to leave the United Kingdom for a limited period of time in order to apply for entry clearance from Pakistan to join her partner. The Claimant submitted that the assumption that she would be able to re-enter the United Kingdom from Pakistan was mistaken as she would be unable to satisfy the financial eligibility requirements for entry as a partner under Appendix FM of the Immigration Rules. She argued that her appeal should be allowed because the consequence of her removal would be permanent, or at least long-term, exclusion from the United Kingdom. In the alternative, the Claimant contended that, even if she were able to re-enter the United Kingdom after only a limited period of time, her removal would be disproportionate under Article 8 of the ECHR: first, because she met the requirements of the Immigration Rules; secondly, because there was no public interest in removing a person from the United Kingdom in order to make an entry clearance application that was certain to succeed in accordance with Chikwamba v Secretary of State for the Home Department[2008] UKHL 40; and thirdly, because the public interest did not require her removal in accordance with section 117B(6) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) as it would not be reasonable to expect her daughter to leave the United Kingdom even for a temporary period whilst her application for entry clearance was pending. The Claimant further submitted that she was 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 Zambrano v Office national de I'emploi (Case C-34/09) and Patel v Secretary of State for the Home Department[2019] UKSC 59.

Held, dismissing the appeal:

(1) The evidence of the Claimant and her partner was to be approached with a high degree of caution. It was apparent that they had sought to portray matters regarding the presence of family in Pakistan and the partner's earnings in a way that they believed would be favourable to the Claimant's case. The Claimant had entered the United Kingdom with the intention of giving birth and remaining with her partner permanently. She also had that intention when she applied for further six months' leave in 2016. The appeal could not succeed on the basis of the Secretary of State's concession. The Claimant would be out of the United Kingdom, in Pakistan, awaiting a grant of entry clearance, for between four and nine months. There would be no indefinite, or lengthy, separation (paras 52 – 57, 61 – 65, 69 and 70).

(2) It was not sufficient, in order to satisfy the requirements of Appendix FM of the Immigration Rules, that a partner of a citizen of the United Kingdom was able to show that there would be “insurmountable obstacles” to the relationship continuing outside the United Kingdom. It was also necessary to satisfy certain of the eligibility requirements specified in paragraph E-LTRP of Appendix FM, including that the applicant must not be in the United Kingdom as a visitor. The Claimant had leave as a visitor when she applied for further leave in 2016 and that leave continued by operation of section 3C of the Immigration Act 1971. She therefore did not satisfy the Immigration Rules because she did not meet the eligibility immigration status requirement at E-LTRP.2.1 (para 72).

(3) The Claimant did not satisfy paragraph 276ADE(1)(vi) of the Immigration Rules for two reasons. First, at the date of her application the Claimant would, by her own account, have been able to return to the United Arab Emirates, a country in...

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