United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-001760
	First-tier Tribunal No: HU/56784/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 14 ^th of March 2025

 

Before

 

UPPER TRIBUNAL JUDGE KHAN

 

Between

 

RICHMOND KWAME DJAOU

(NO ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr K. Antwi-Boasiako, R. Spio Solicitors

For the Respondent: Mr E. Terrell, Senior Home Office Presenting Officer

 

Heard at Field House on 19 February 2025

 

DECISION AND REASONS

Introduction

1.       This remaking decision should be read in conjunction with the decision issued on 26 November 2024 in which the Upper Tribunal found that the First-tier Tribunal had materially erred in law. The First-tier Tribunal decision was set aside without any preserved findings and the appellant's appeal was adjourned to be remade by the Upper Tribunal.

Background

2.       The following summary sets out the factual background to the appeal. The appellant is a national of Ghana and was born on 15 October 1994. He entered the UK on 10 August 2022 on a visitor visa valid from 29 July 2022 until 29 January 2023. On 4 March 2023, he contracted a customary proxy marriage in Ghana. His partner ('the sponsor') is a UK national and the mother to a British born child of whom he is not the biological father.

3.       On 30 March 2023, the appellant made a human rights claim for leave to remain in the UK as a family member (partner) under Appendix FM of the Immigration Rules, and generally under Article 8 of the European Convention on Human Rights 1950 (the "ECHR") based on his right to family and private life.

4.       The Secretary of State refused the application within the Immigration Rules (the 'Rules') and found no exceptional circumstances that warranted a grant of permission to allow the appellant to stay outside of the Rules. The appellant appealed to the First-Tier Tribunal ('FtT').

5.       The FtT dismissed the appeal but found the appellant and sponsor had contracted a customary proxy marriage in Ghana that was recognised in the UK. Nothing further was said in the decision about the existence between them of a genuine and subsisting relationship. However, in respect of the sponsor's child (the appellant's stepson), the FtT expressly found on the facts that the appellant had not established a genuine and subsisting parental relationship with him [20].

6.       The FtT further determined that it would not be unreasonable for the sponsor's child to leave the UK with her; he was only four years old and therefore unlikely to have developed a strong private life in his own right [21] and had no contact with his biological father. In this respect, although the sponsor might prefer to remain in the UK, there were no insurmountable obstacles to her relocating to Ghana [22] with her child and the appellant to continue their family life. There were no significant obstacles to the appellant's reintegration into Ghana as he had lived there for most of his life and would be enough of an insider to know how society worked and to be able to re-establish relationships [23]. His return would not give rise to unjustifiably harsh consequences and there were no compelling features which would render his removal disproportionate in respect of Article 8 ECHR.

7.       Following a statutory appeal hearing on 27 September 2024, the Upper Tribunal found that the FtT decision contained an error or law, set it aside, and directed that it be remade by the Upper Tribunal. None of the facts were preserved for the remaking. The chronology of this appeal and the detailed outcomes of the previous hearing are set out in the statutory appeal (error of law) decision issued on 26 November 2024 and need no repetition here.

The Remaking Hearing

8.       The parties reaffirmed their agreement that this case should be remade in the Upper Tribunal ('the Tribunal') and agreed that the following issues required determination by the Tribunal:

(i)                  The nature of the appellant's relationship with the sponsor and her child (paragraph EX.1. (a) & (b) of the Immigration Rules).

(ii)               The effect of section 117B(6)(a) of the Nationality, Immigration and Asylum Act 2002 (the '2002 Act').

(iii)             Whether there are 'insurmountable obstacles' to family life continuing outside the UK (paragraph EX.1. (b) of the Immigration Rules).

(iv)             Article 8 ECHR outside the Rules and Exceptional Circumstances

9.       It was agreed that Appendix Private life of the Rules was not a contested issue for the hearing to consider.

The nature of the appellant's relationship with the sponsor and her child (paragraph EX.1. (a) & (b) of the Immigration Rules)

10.   The appellant provided oral evidence and also relied on his earlier witness statement dated 20 October 2023. In summary, his previous statement explained that he first met the sponsor at the Oxford Library around August 2022. At that time, he saw her child struggling on the library stairs, so he helped him out and as a result they started to talk. They subsequently had dinner in September 2022. Their relationship developed with the appellant moving into her house in January 2023.

11.   His relationship with the child and the sponsor developed and he and the sponsor married on 4 March 2023 under the customary laws of Ghana where upon the sponsor's child became his stepson. He stated that he and the sponsor are in a loving and committed relationship, and he loves her and his stepson very much. He had stepped into the role of father for the child and helps with his day-to-day needs. He stated that the sponsor would struggle if she had to relocate to Ghana as she had spent all of her life in the UK and relocation would create insurmountable hardship for her, his stepson, and her family which included her widowed mother.

12.   In his oral evidence, the appellant confirmed that he lived with the sponsor and her son. He took his stepson to school and back home each day and did a lot of things for him, such as cooking and playing football together. He thought his mother-in-law also came to the house and helped with her grandson.

13.   During cross-examination, the appellant said that even though the letter from Botley School (dated 19 October 2023) had stated that it was the sponsor who dropped off and collected her son from nursery each day and had made no mention of him, he also dropped off and collected the child. He explained that the letter had been arranged by his previous solicitors, and he had no idea why he was not mentioned.

14.   Turning to his immigration history, the appellant confirmed that he had originally arrived in the UK to attend the graduation of his cousin. The father of the cousin (his uncle) was in attendance at the hearing with him. His uncle, aunt and cousin in the UK had met the sponsor and her son. He had not asked them to provide any evidence on his behalf as he did not know it would be helpful.

15.   The appellant confirmed that his parents and siblings remained in Ghana. He had kept in touch with them. Prior to coming to the UK, he lived with his parents, but said if he were returned, he would have to find somewhere else to rent. His family would not be able to support him financially. Before leaving for the UK, he worked as a teacher in Ghana but said it was hard to find jobs now. If he were returned with the sponsor and his stepson, he would find a local school for him to continue his education.

16.   Turning to the sponsor, the appellant confirmed that she had not attended the hearing because she had just started a new job on Monday 17 ^th February, and she did not know she was required. He confirmed she had attended previous hearings. She had not filed a further witness statement because she was not aware that it was possible to produce further evidence. He denied that the true reason for his partner's absence was because they were not in a genuine and subsisting relationship.

17.   The appellant stated that his partner worked in 'sales'. She had never visited Africa, and he thought she would find it difficult to find a job in Ghana as English was not widely spoken and she did not speak the local Ghanaian language.

18.   Mr Antwi-Boasiako on behalf of the appellant took the Tribunal to the sponsor's earlier witness statement dated 20 October 2023. Her statement confirmed the appellant's account of how they had first met and that they were in a genuine relationship. She stated that both she and her son would be 'devastated' if the appellant were returned to Ghana. In this regard, her home was the UK, and she had never lived elsewhere. She had a job in the UK and since the passing of her father had grown closer to her widowed mother. She also had two other adult children in the UK and separation from them and her mother would cause great hardship for the family.

19.   Mr Antwi-Boasiako reminded the Tribunal that even though the sponsor had not updated her earlier witness statement, she had stated in evidence before the FtT that the appellant did a lot with her son, and had a good relationship, for example, taking her son to nursery because she works, and looking after him when she is with family by cooking dinner. There was also photographic evidence of the family enjoying each other's company. The sponsor had also stated that the relationship could not continue in Ghana because she has family and two other adult children in the UK aged 22 and 17, and her young son would be going to school shortly.

20.   In terms of the FtT findings, Mr Anti-Boasiako reminded the Tribunal that the child had no contact with his biological father and that the FtT judge had accepted that a customary proxy marriage had taken place.

21.   Turning now to Paragraph EX.1. of Appendix FM of the Rules, this provides:

This paragraph applies if:

(a)    (i) the applicant has a genuine and subsisting parental relationship with a child who -

1.       (a)(a) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;

2.       (b)(b) is in the UK;

3.       (c)(c) is a British Citizen or has lived in the UK continuously for at least 7 years immediately preceding the date of application; and

(ii) taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK; or

(b)   the applicant has a genuine and subsisting relationship with a partner who is in the UK and a British Citizen, ... and there are insurmountable obstacles to family life with that partner continuing outside the UK.

Discussion

22.   In light of the evidence, Mr Terrell submitted:

(i)                  there was no genuine and subsisting relationship with the sponsor and/or 'parental' relationship with the stepson under EX.1. (a) or (b) of the Rules.

(ii)               the FtT had expressly found there was no genuine and subsisting parental relationship between the appellant and his stepson and had made no explicit finding regarding the existence of a genuine and subsisting relationship with the sponsor.

(iii)             it was 'astonishing' given the importance of the case to the appellant, that the sponsor had not attended the hearing, nor provided any documentary evidence to support the reason for her absence or updated her evidence from 2023.

(iv)             it was no good blaming previous lawyers for their advice as the appellant was currently legally represented and the Standard Directions were explicit about the opportunity to produce further evidence, if appropriate.

(v)               the appellant's evidence was not enough in 2023 to discharge the burden of proof to establish the existence of a genuine and subsisting relationship between himself and the sponsor and/or stepson and was not good enough now; for example, the appellant's evidence as to whether his mother-in-law helped out was vague and he had to be reminded, stating ' I think...'

23.   Mr Anti-Boasiako submitted that the appellant had been honest in his evidence. He accepted that the FtT's decision had not on its face directly addressed the question of whether or not the appellant was in a genuine and subsisting relationship with the sponsor. That said, the FtT had found the existence of a valid customary proxy marriage that was recognised in the UK, and based on that finding, it would seem the FtT accepted there was a genuine and subsisting relationship between them.

24.   Having heard the evidence and submissions, I reserved my decision which I now set out below.

25.   I have carefully considered the submissions made by the parties. The question as to whether the appellant and the sponsor are in a genuine and subsisting relationship under paragraph EX.1. (b) was not disputed by the respondent at the earlier error law of hearing. I reach this view based on the respondent's Rule 24 response to the original error of law grounds of appeal. The respondent's response clearly accepted the existence of a genuine and subsisting relationship between the appellant and the sponsor but disputed a similar parental relationship with the stepson when it stated 'The respondent maintain[s] that acceptance of a genuine and subsisting relationship between the sponsor and the applicant is not of itself indicative that the appellant has a genuine and subsisting relationship with his stepson. It remained open to the First-tier Judge to conclude that the appellant had failed to discharge the burden of proof upon him.'

26.   In the circumstances, I agree with the analysis of Mr Anti-Boasiako that based on the finding of a customary proxy marriage, it would appear that the FtT accepted there was a genuine and subsisting relationship between the appellant and the sponsor as a matter of fact. I am fortified in this view because at paragraph [22] of the FtT decision it goes on to discuss 'insurmountable obstacles' to the sponsor relocating to Ghana. The FtT presumably would only have done that on the basis that paragraph EX.1. (b) was met. It is also clear from the FtT decision that no contrary findings were made as to whether the marriage is genuine and subsisting.

27.   However, I have considered the specific evidence in respect of this question which the FtT does not appear to have undertaken. I have done so because I am mindful that 'subsisting' means not merely that the marriage is still in existence as a legal formality (which is not disputed by the respondent), but the matrimonial relationship exists: GA ('subsisting marriage') Ghana [2016] UKAIT 00046.

28.   The appellant and sponsor have both given consistent accounts as to how they met and subsequently married. They have been living together since January 2023 as a married couple, together with the sponsor's son in what they claim is a permanent and loving relationship. I have seen photographs of the family together and they appear to be a loving and joyful family unit. I have also reviewed the appellant's bank statements. These show that he regularly buys groceries and other household items. It is therefore evident that he is making a financial contribution to the household and has assumed some shared financial responsibilities with the sponsor who works and in whose home they live.

29.   While I accept that there is not very much provided in terms of documentation showing deeper shared financial or other responsibilities between them, nor any evidence from family and friends about the nature of their relationship, I am satisfied based on the nature and quality of the substance of the relationship, that the appellant has established on the balance of probabilities that the relationship is genuine and subsisting within the meaning of paragraph EX.1.(b).

30.   The next issue that remains to be determined is whether the appellant has discharged the burden of proof of establishing on the balance of probabilities that he has: (i) a genuine and subsisting parental relationship with the sponsor's son (his stepson) in accordance with paragraph EX.1.(a) which was the basis of the error of law finding.

31.   In considering this issue, I have carefully considered the Home Office Guidance ('the guidance') on Family Life (version 21.0) dated 17 May 2024 on what the Secretary of State for the Home Department ('SSHD') considers to amount to genuine and subsisting parental relationships for the purposes of Appendix FM of the Rules, in particular paragraph EX.1.(a).

32.   The first question to ask is whether there is a 'qualifying child?'. The affirmative answer to that question is not disputed in this case as the stepson is: (aa) under the age of 18; (bb) is in the UK; and (cc) is a British Citizen. He is therefore a 'qualifying child'.

33.   The next question is 'Whether there is a genuine and subsisting parental relationship?' The guidance provides that a person who is not a child's biological parent may have a genuine and subsisting relationship to a child, where they are playing a genuinely parental role in a child's life. It states that a finding on whether there is a genuine and subsisting parental relationship capable of engaging Article 8 ECHR is highly fact specific.

34.   Based on the undisputed facts before the FtT (as the respondent was not represented and had not accepted the appellant's case) the appellant currently lives with the sponsor and her son. The evidence from the sponsor and the appellant is that he sees the child regularly and spends time with him. They play football together in the park, and he occasionally looks after the child and cooks for him when the sponsor goes to see her family. He also takes the child to occasional medical appointments and contributes to the household finances as evidenced from his bank statements.

35.   Although the Botley School letter does not mention that the appellant takes his stepson to nursery, I prefer the evidence of the sponsor who stated that she and the appellant take turns in taking and collecting her son from school, as she has to go to work. In my view her evidence has a ring of truth about it, given the practicalities of many households faced with juggling work commitments and a young child. I also consider that she is in a better position to know who takes her son to school and collects him rather than the nursery.

36.   That said, a key consideration in the guidance as to whether a person is in a 'parental relationship' with a child which must be considered in the context of the entire phrase 'genuine and subsisting parental relationship' is whether the appellant takes an 'active role' in the child's upbringing and making decisions that directly affect him.

37.   In deciding this question, I recall the evidence at paragraph [33] above, and observe that the overall state of the evidence regarding what the appellant does for his stepson has not materially strengthened beyond the bare details set out in his witness statement dated 20 October 2023, and that of the sponsor of the same date.

38.   While I accept that the evidence establishes on the balance of probabilities the existence of a genuine and subsisting relationship between the appellant and his stepson based on their daily contact as they live together, regularly helping out by dropping off and collecting him from nursery, including occasionally doing some cooking when the sponsor is visiting her family, I find there is no clear and cogent evidence that the appellant plays an active role in making any important decisions regarding his stepson. There is no evidence from friends or wider family about the 'parental' role the appellant claims he plays in the child's life. Looking at the evidence in the round, the appellant has not established on the balance of probabilities that he has a subsisting parental relationship with his stepson: SR (subsisting parental relationship) Pakistan [2018] UKUT 334 (IAC). In the circumstances, the appellant is unable to meet the requirements of paragraph EX.1. (a) of the Rules. However, the language of paragraph EX.1. (a) mirrors that in section 117B (6)(a) of the 2002 Act, which I now turn to as I consider Article 8 ECHR.

The effect of section 117B (6) of the Nationality, Immigration and Asylum Act 2002 (the '2002 Act')

39.   Section 117B(6) of the 2002 Act sets out three requirements which, if met, have the effect that the public interest does not require a person's removal where: (i) the person is not liable to deportation; (ii) the person has a genuine and subsisting parental relationship with a qualifying child, and (iii) it would not be reasonable to expect the child to leave the United Kingdom.

40.   The first requirement is met as the appellant is not liable to deportation and the appellant's stepson is a 'qualifying child' as he is a British citizen under the age of 18 (see section 117D (1) of the 2002 Act).

41.   I now turn to the second requirement which requires the appellant to have a genuine and subsisting parental relationship with his stepson. The assessment of whether there exists a genuine and subsisting parental relationship for the purposes of section 117B(6)(a) is qualitatively different from whether a person has taken an 'active role' in a child's upbringing for the purposes of paragraph EX.1. (a) of the Rules.

42.   In R (RK) v SSHD (s. 117B(6)(a): parental relationship') IJR [2016] UKUT 31 the Upper Tribunal held that whether a person who is not a biological parent is in a 'parental relationship' with a child for the purposes of section 117B(6)(a) of the 2002 Act depends on all the circumstances and whether the role that individual plays establishes he or she has 'stepped into the shoes' of a parent.

43.   As noted already, the evidence provided of what care the appellant provides for his stepson is limited and has not been updated since 20 October 2023. There is a paucity of evidence to show that the stepson is dependent on the appellant in any meaningful way for his practical and emotional needs. There is no evidence from wider family, friends, teachers, or healthcare professionals responsible for the child to show that the role the appellant plays establishes that he has 'stepped into the shoes' of a parent.

44.   Having carefully considered all the circumstances; I find the appellant's role amounts to no more than acting as an occasional secondary carer to the sponsor's child. The evidence provided does not come close to meeting the parental relationship requirements of section 117B (6)(a).

Whether there are 'insurmountable obstacles' to family life continuing outside the UK (paragraph EX.1. (b) of the Immigration Rules)

45.   I have found there exists a genuine and subsisting relationship between the appellant and the sponsor based on Paragraph EX.1. (b) of Appendix FM of the Rules. The question that arises is whether there are insurmountable obstacles to family life with that partner continuing outside the United Kingdom.

46.   For the purposes of paragraph EX.1.(b) 'insurmountable obstacles' means very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK, and which could not be overcome or would entail very serious hardship for the applicant or their partner (see Paragraph EX.2. of Appendix FM of the Rules).

47.   In R v (on the application of Agyarko) v Secretary of State for the Home Department [2015] ECWA Civ 440, the Court of Appeal (Sales LJ) held that 'insurmountable obstacles' clearly imposed a high hurdle to be overcome for leave to remain under the Rules and that the test is significantly more demanding than a mere test of whether it would be reasonable to expect a couple to continue their family life outside the UK.

48.   The burden is on the appellant to show that there are 'insurmountable obstacles' to continuing family life outside the UK. Having considered the evidence in the round the appellant has failed to meet the high hurdle set by the Court of Appeal in Agyarko which was approved by the Supreme Court ([2017] UKSC 11 as compatible with Article 8 ECHR).

49.   In light the evidence, there are not insurmountable obstacles to the appellant returning to Ghana. He has lived there for most of his life and was also educated there. He only entered the UK in August 2022. He still has family ties in Ghana and prior to coming to the UK he worked as a teacher. He is educated and therefore could resume employment without any barriers. I find he is enough of an insider to know how the society works in Ghana and to integrate into society and re-establish himself in a short time.

50.   Turning to the appellant's British sponsor, I accept based on her evidence that her preference would be to stay in the UK where she has a job and supports her widowed mother with whom she is close. She also has two adult children, a young child about to start school, and wider family members and has never travelled to Africa. I understand that relocation will be a significant cultural change for her, but I anticipate she will have the benefit of the appellant's family and his insider knowledge to support her adjustment. Her stated concerns and the fact that she does not speak the local language do not in my view meet the high threshold of 'insurmountable obstacles'. She will be able to maintain contact with her family through modern means of communication.

51.   I now turn to the appellant's stepson whose best interests are to be taken account of as a primary consideration. In FZ (Congo) v Secretary of State for the Home Department [2013] UKSC 74, the Supreme Court said:

'...The best interests of a child are an integral part of the proportionality assessment under Article 8 of the Convention; in making that assessment, the best interests of a child must be the primary consideration, although not always the only primary consideration; and the child's best interests do not of themselves have the status of paramount consideration...'

52.   Applying the law to the facts, the sponsor's child is still very young, born in March 2020. As the FtT noted, he is of an age where much of his life will revolve around his mother, and he is unlikely to have developed a strong private life in his own right. To the extent that he has, based on the limited evidence, I anticipate this relates primarily to the relationship with his grandmother, who the appellant has said sometimes visits to help look after him. The child has no contact with his biological father and therefore relocation should not prove disruptive. As the FtT noted at [21], on which I agree, it is in the best interests of the child to remain in the care of his mother which relocation of the entire family would not interfere with. I should also state that refusal of leave to remain does not compel either the sponsor or her son to leave the UK as British citizens.

53.   I refuse leave to remain based on the Rules as paragraph EX.1. (b) does not apply for the reasons I have given above.

54.   However, I am mindful that the best interests' assessment is not determinative of the appeal, ZH (Tanzania) [2011] UKSC at [26] considered. I therefore turn finally to consider if any exceptional circumstances apply to allow leave to remain to be granted outside the Rules.

Exceptional Circumstances

55.   In considering whether there are any exceptional circumstances present such that removal would be disproportionate under Article 8(2) given the nature of the appellant's family life, I am mindful that owing to section 117A (2) of Part 5 of the 2002 Act, in considering proportionality, I am obliged to have regard to the considerations listed in section 117B and do so below.

56.   The public interest in the maintenance of effective immigration controls is clearly engaged in this case, to a significant extent for the following reasons.

57.   The appellant entered the UK on a visit visa when he knew he did not have permission to stay in the UK permanently and therefore could not have had any legitimate expectation of staying.

58.   That the appellant speaks English is a neutral matter in the balancing exercise. As is the fact that he is not a burden on the taxpayer and resides with the sponsor who works. These are neutral factors.

59.   I have regard to the considerations at sections 117B (4) & (5) that little weight should be given to the appellant's private life or a relationship formed at a time when his immigration status was either precarious or unlawful. In this regard, the appellant's relationship was formed at a time when he was an overstayer and therefore in the UK unlawfully. I accept therefore attach little weight that family life.

60.   I accept that the sponsor would have to maintain her relationship with her family and friends at a distance if she moves to Ghana and that both she and her son may experience some difficulty adapting to life in Ghana. As noted by the FtT at [24(c)] the appellant may have established a private life in the UK but there is scant evidence that he has developed a strong private life in the UK, other than possibly his relationship with his cousin, uncle, and aunt. In any event, I weigh the family and private life factors in the appellant's favour.

61.   Having considered all of the relevant matters in the round, including, the public interest considerations set out above, I am satisfied that the factors raised by the appellant do not outweigh the public interest in maintaining effective immigration control. The sponsor has married the appellant and as noted by the FtT, he and her son are her immediate family. It would not be unreasonable for them both to relocate with the appellant to Ghana to continue their family life outside the UK.

62.   The appellant has not identified any extraordinary circumstances that would render his removal to Ghana disproportionate and in breach of Article 8(2) ECHR.

NOTICE OF THE DECISION

63.   The appeal is refused.

 

K.A.Khan

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

05 March 2025

 

 

NOTIFICATION OF APPEAL RIGHTS

 

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal's decision was sent:

 

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

 

3. Where the person making the application is in detention under the Immigration Acts , the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

 

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

 

5. A "working day" means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

 

6. The date when the decision is "sent' is that appearing on the covering letter or covering email