Upper Tribunal (Immigration and asylum chamber), 2014-07-31, IA/09044/2013
| Jurisdiction | UK Non-devolved |
| Date | 31 July 2014 |
| Published date | 12 November 2014 |
| Hearing Date | 15 July 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/09044/2013 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal no: IA 09044-13
THE IMMIGRATION ACTS
|
At |
Decision signed: 18.07.2014 |
|
on 26.03.2014 & 15.07.2014 |
sent out: 31.07.2014 |
Before:
Upper Tribunal Judges
John FREEMAN and AM KOPIECZEK
Between:
resna Begum
appellant
and
respondent
Representation:
For the appellant: the sponsor (Mr Masud Ahmed)
For the respondent: Mr Tom Wilding (on 26 March) & Mr Tony Melvin (on 15 July)
DETERMINATION & REASONS
This is an appeal, by the , against the decision of the First-tier Tribunal (Judge Jeffrey Cameron), sitting at Taylor House on 25 November 2013, to a wife’s appeal by a citizen of Bangladesh, born 12 August 1994. The appellant arrived in this country on 25 March 2012 on a visit visa, valid till 6 September; but on 12 August went through an Islamic marriage ceremony with the sponsor, who was by then a British citizen, and on 3 September applied for leave to remain as his “unmarried partner”. This was refused, with notice served on 8 March 2013; but on 23 May last year the appellant gave birth to a son by the sponsor, whom we shall call F.
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Permission was given on the basis that
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the sponsor’s difficulties in maintaining contact with his two children by a former marriage, if he, the appellant and F could only live together in Bangladesh, did not amount to ‘exceptional’ or ‘compelling’ circumstances (see Shahzad (Art 8: legitimate aim) Pakistan [2014] UKUT 85 (IAC) and authorities discussed there); and
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F’s best interests should not have been treated as effectively a ‘trump card’ for the appellant.
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There has been no suggestion at any stage that the parties could meet the funding requirements of the Immigration Rules: though Mr Wilding sought to raise another point of challenge to the judge’s decision, on the extent to which they fell short of them, we have not found it necessary to consider this.
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There had been a previous appeal against the Home Office decision of 8 March, which was allowed by another first-tier judge; but on 15 October the Upper Tribunal (McCloskey J, President, and Judge Warr) set that decision aside, and we need not return to it. We dealt on 26 March with the Home Office’s appeal on the law, and on 4 April our ruling on that, substantially reproduced in the present decision, went out to the parties; on 15 July we heard oral evidence on the point set out at 12 below. On each occasion, the appellant told us she would prefer the sponsor to speak for her, which he did through a Bengali interpreter: we made sure he understood everything Mr Wilding and Mr Melvin said (in simple terms, as we asked them), including the gist of any authorities referred to, and had a full opportunity to reply to it. We shall start by considering the ‘best interests’ point, since that must always be a primary consideration.
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F is of course a British citizen, through his father: on this we remember the well-known passage in ZH (Tanzania) [2011] UKSC 4 (per Lord Hope at paragraph 41)
The fact of British citizenship does not trump everything else. But it will hardly ever be less than a very significant and weighty factor against moving children who have that status to another country with a parent who has no right to remain here, especially if the effect of doing this is that they will inevitably lose those benefits and advantages for the rest of their childhood.
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Mr Wilding reminded us of MK (best interests of child) India [2011] UKUT 475 (IAC), and we have in mind the principles set out in the judicial head-note, which there is no need to repeat here, beyond that the ‘best interests’ consideration forms “a distinct inquiry”, separate from the public interest concerns which must be weighed against them.
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Turning to the judge’s decision, Mr Wilding began by referring us to his consideration of F’s best interests in staying here, and particularly being with his parents wherever they are, and of the sponsor’s difficulties in keeping in touch with his other children, if he, the appellant and F all had to go to Bangladesh. While Mr Wilding challenged what the judge said on the last point at paragraphs 60 – 61 as speculative, we took the view that this was a point on which the judge was entitled to find as he did for the future, having accepted the history given by the sponsor.
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There was nothing else in the judge’s treatment of that side of the equation to which Mr Wilding took exception, except for his finding on the difficulties the sponsor would have in satisfying the funding requirements of the Rules on any future entry clearance application by the appellant. There is well-established authority that neither a prospective good case for entry clearance nor a bad one is to be taken into account in deciding in principle whether that route ought to be taken.
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The real difficulty with the judge’s decision on the basis he gave it, though, came with the way he balanced the public interest against F’s and his parents’. He dealt with this at paragraphs 64 – 67. At 64 he analysed the situation in terms of the appellant and the sponsor’s both having known when they got together that her status here was precarious, and would have found the decision under appeal proportionate to the legitimate purpose of , if that had been all. However at 65 he noted the birth of F, and said this:
Although he could go with his mother this would deprive him of the benefits of growing up in this country and would also remove him from his father. His removal would also have the consequence of depriving him of the genuine enjoyment of … his status as an EU citizen.
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At 66 – 67 the judge concluded that, given he had found it would be unreasonable to expect the sponsor to go back to Bangladesh with his new family, and F’s consequent best interests in having both his parents with him here, the balance of proportionality came down in favour of the appellant’s being allowed to stay. Naturally the sponsor supported the judge’s decision, though at the same time he relied on points where the judge had not found in his favour, such as his contention that he and his family would be without means of support in Bangladesh.
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In our view, the judge’s proportionality finding was one he would have been entitled to make, on the considerations he mentions, if he had first considered whether there were such ‘exceptional’ or ‘compelling’ features in the case (see MF (Nigeria) [2013] EWCA Civ 1192, Gulshan (Article 8 – new Rules – correct approach) Pakistan [2013] UKUT 640 (IAC), and Shahzad (Art 8: legitimate aim) Pakistan [2014] UKUT 85 (IAC)) as to require any free-standing consideration of article 8. However, a lawful decision required consideration of that point, and, if there were such features, it seemed to us they must turn on the position of F.
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Nevertheless, we could not deal with the question of F as if a stork had suddenly brought him down to his parents on 23 May 2013: elementary knowledge of human biology suggests that he must have been conceived around the end of August 2012. We were conscious that we had not heard evidence from the sponsor or the appellant as to their motives in taking their family life forward so rapidly, on any view of the history.
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Unless explained, the plain facts raise an obvious case with which the parties, and the judge had needed to deal: was their going through a marriage ceremony and conceiving a son within a month of the expiry of the appellant’s visit visa an attempt to present Her Majesty’s Government with a fait accompli, which would make her removal practically impossible? While the marriage ceremony had no legal effect in this country, and the appellant might well have been unable, in her situation, to contract one which did, no doubt it was a prerequisite in their custom to living and having a child together; and as it has turned out so far, it was the birth of that child which led to the appellant’s appeal being allowed.
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Mr Wilding referred us to, without being able to cite it, what turned out to be Hayat (Pakistan) [2012] EWCA Civ 1054, where the Court of Appeal summarized the principles to be applied as follows:
a) Where an applicant who does not have lawful entry clearance pursues an Article 8 claim, a dismissal of the claim on the procedural ground that the policy requires that the applicant should have made the application from his home state may (but not necessarily will) constitute a disruption of family or private life sufficient to engage Article 8, particularly where children are adversely affected.
b) Where Article 8 is engaged, it will be a disproportionate interference with family or private life to enforce such a policy unless, to use the language of Sullivan LJ,...
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