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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005467
	First-tier Tribunal No: HU/50192/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

19 ^th February 2025

 

Before

 

UPPER TRIBUNAL JUDGE CANAVAN

 

Between

 

ZEQUIE DOMI

(NO ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr M. Saleem, of Malik and Malik Solicitors

For the Respondent: Mrs A. Nolan, Senior Home Office Presenting Officer

 

Heard at Field House on 17 February 2025

 

 

DECISION AND REASONS

Introduction

1.              This is a decision of the Upper Tribunal (Immigration and Asylum) Chamber ('the Upper Tribunal'). The Upper Tribunal is an independent decision-making body. It is not connected to the Home Office. Judges of the Upper Tribunal are public servants who swear an oath to apply the law to everyone in a fair and balanced way and 'without fear or favour'. The rule of law is a cornerstone of the constitutional arrangements in a democratic society. The powers exercised by the Upper Tribunal are contained in laws passed by Parliament. Those laws allow for the losing party in an appeal before the First-tier Tribunal to apply for permission to appeal to the Upper Tribunal.

2.              If permission is granted, the Upper Tribunal will consider the legal arguments put forward by both sides in an appeal. The Upper Tribunal only has power to set aside a decision of the First-tier Tribunal if it concludes that the decision involved the making of an error of law. If the Upper Tribunal finds that a decision of the First-tier Tribunal does not involve the making of an error of law, the decision will stand. If a decision of the First-tier Tribunal is found to involve the making of an error of law, the Upper Tribunal can set aside the decision. The Upper Tribunal will then decide whether to remake the decision itself or whether the appeal might need to be reheard in the First-tier Tribunal.

Background

3.              The appellant is an Albanian national who appealed the respondent's decision to refuse a human rights claim in the context of an application made on 08 August 2023 for entry clearance as the partner of a British citizen.

Family background

4.              The appellant married her partner, Mr Artan Domi, in June 2004. Mr Domi was naturalised as a British citizen in August 2004. The couple have four children born in 2004, 2008, and 2013 (twins). The children were born and grew up in Albania.

5.              In 2022 the sponsor was notified of a decision to deprive him of British citizenship. It transpired that the sponsor had obtained leave to remain and then citizenship by fraud. When he entered the UK in 1997 he lied about his nationality, claiming to be an asylum seeker from Kosovo, when he was in fact an Albanian national. The fact that the sponsor was an Albanian national might explain why no earlier application was made for the appellant to join him in the UK and why no application was made for the children who were eligible to apply to be registered as British citizens. To make such applications ran the risk of alerting the British authorities to the fact that the sponsor was Albanian and had obtained British citizenship by fraud.

6.              It was only after the sponsor was notified of the Secretary of State's intention to deprive him of British citizenship that he applied to register his three youngest children as British citizens. The sponsor remained a British citizen while there was an ongoing appeal against the deprivation decision and before a final deprivation order could be made. For this reason, the applications for registration were granted in March 2023.

7.              The couple then made arrangements for their second child, then aged 14 years old, to join his father in the UK in July 2023. Shortly after, the appellant applied for entry clearance as a partner in August 2023. The application was refused in a decision dated 08 August 2023 on the ground that the appellant did not meet the 'Eligibility - Relationship' requirement of the immigration rules because the sponsor would be deprived of citizenship status.

8.              The sponsor's appeal against the decision to deprive him of citizenship status was dismissed in a decision signed on 30 August 2023. An application for permission to appeal to the Upper Tribunal was refused on 11 October 2023. A renewed application for permission made directly to the Upper Tribunal was not filed through the proper channels by the sponsor's legal representatives. Considering that the sponsor's appeal rights were exhausted, the Secretary of State made on order on 13 April 2024 to formally deprive the sponsor of citizenship status. An application for permission to appeal to the Upper Tribunal was not filed through the proper procedure until 20 August 2024, which was significantly out of time. Although time was extended by the Upper Tribunal in relation to the sponsor's late application, permission to appeal was refused in an order sent on 10 September 2024.

 

First-tier Tribunal decision

9.              The youngest two children were brought to the UK in August 2024, shortly before the hearing in this case. When First-tier Tribunal Judge Suffield-Thompson ('the judge') heard this appeal on 30 August 2024, the sponsor had been formally deprived of citizenship status. He was awaiting a decision in relation to the late application for permission to appeal to the Upper Tribunal and/or a decision as to whether he would be granted limited leave to remain or not.

10.          The judge dismissed the appeal in a decision sent on 31 August 2024. It was accepted that that appellant did not meet the 'Eligibility - relationship' requirement of the immigration rules because she was not married to a British citizen or a person who was present and settled in the UK [17]. The judge then took a structured approach to the assessment of the appellant's family life with reference to Article 8 of the European Convention. She accepted that the decision was likely to interfere with the appellant's family life for the purpose of Article 8(1). The interference was in accordance with the law and was in pursuit of the legitimate aim of maintaining an effective system of immigration control [21].

11.          The judge then turned to consider whether the decision to refuse entry clearance was proportionate with reference to Article 8(2). She noted that the immigration rules struck a fair balance between the rights of the individual and the public interest. Substantial weight needed to be placed on the maintenance of an effective system of immigration control [24]. The appellant did not meet the requirements of the immigration rules.

12.          The judge made a clear self-direction to the effect that she must consider other people affected by the decision, including the appellant's three children. She referred to the Secretary of State's duty to take into account the welfare of children outlined in section 55 of the Borders, Citizenship and Immigration Act 2009 ('BCIA 2009') and made clear that she had considered the relevant case law relating to the assessment of cases involving children [25]. She also noted that the appellant had argued that it was in the best interests of the children for them to be together with both parents as a family unit [28]. The judge found that the fact that the children were British citizens was an important issue to be taken into account, but was it was not 'a trump card': see ZH (Tanzania) v SSHD [2011] UKSC 4 [29].

13.          The judge heard from the sponsor. She did not accept his claim that it was the children's decision to come to the UK to be educated. The judge concluded that the children had been sent to the UK to support the appellant's immigration application [27].

14.          In assessing the circumstances of the three children, the judge noted that the second child was 15 years old and had lived in the UK for only a year. The evidence indicated that he was struggling at school. The father had given oral evidence to say that he was happy here. The judge concluded that it would be proportionate for him to resume his life in Albania. If it was decided that the child should remain in the UK, he could continue to keep in contact with his mother by telephone, face time, and visits in the school holidays [30]. The two youngest children had only been in the UK for a couple of weeks at the date of the hearing. The judge found that they had been brought to the UK in the full knowledge that their mother had no leave to enter and that their father had been deprived of citizenship. The judge concluded that they had friends and family in Albania. It was proportionate for them to return to Albania to be with their mother or remain in the UK to continue their education if that is what their parents chose to do [31].

15.          The judge went on to consider some of the public interest factors relating to Article 8(2) contained in section 117B of the Nationality, Immigration and Asylum Act 2002 ('NIAA 2002'). She noted that the respondent accepted that the appellant met the English language requirement contained in the immigration rules. The sponsor's evidence was that his wife would not come to the UK to work but to be a housewife and a stay at home mother. On this evidence, the judge noted that the appellant would not be contributing to the UK economy but might receive child benefit and use NHS resources. Having noted those issues, she did not say what weight, if any, she placed on them [32].

16.          Having considered all the circumstances of the case, and taking into account the fact that the children had only been in the UK for a short period of time, and that their father had been deprived of citizenship status, the judge concluded that the decision to refuse entry clearance was not disproportionate. It would be reasonable to expect the family to live together in Albania [34]. She concluded that the balance lay firmly in favour of the public interest in maintaining an effective system of immigration control in the circumstances of this case [36].

Upper Tribunal proceedings

17.          The appellant applied for permission to appeal to the Upper Tribunal. The grounds shifted in structure and emphasis between the application for permission made to the First-tier Tribunal and the renewed application made directly to the Upper Tribunal. When asked to clarify the grounds at the hearing, Mr Saleem focussed his submissions on the following three points.

(i)              The First-tier Tribunal failed to take into account material evidence contained in the witness statements of the appellant and the sponsor in relation to the effect of the children's separation from their mother.

(ii)            The First-tier Tribunal erred in its assessment of public interest considerations contained in section 117B NIAA 2002.

(iii)          The First-tier Tribunal failed to give adequate consideration to the best interests of the children.

18.          I have considered the First-tier Tribunal decision, the documentation that was before the First-tier Tribunal, the grounds of appeal, and the submissions made at the hearing, before coming to a decision in this appeal. It is not necessary to summarise the oral submissions because they are a matter of record, but I will refer to any relevant arguments in this decision.

19.          The Supreme Court in HA (Iraq) v SSHD [2022] UKSC 22 reiterated that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of the specialist tribunal are best placed to make factual findings. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v SSHD [2020] UKSC 49. When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v FTT (SEC) [2013] UKSC 19. I have kept these considerations in mind when coming to this decision.

Decision and reasons

20.          It is clear from the face of the decision that the judge correctly identified the children as the central issue in the appeal. The judge bore in mind the best interests of the children when considering whether a delay in the proceedings was in their interests [9]. She also made clear that the welfare of the children was an important consideration [25]. She took note of the submission that the best interests of the children were to be in a family unit with both parents [28].

21.          The judge heard evidence from the sponsor, who adopted his witness statement. She did not consider him to be a credible witness [11]. I accept that the parents' statements said that the second child had been struggling with school and that he found it difficult to sleep at night because he was missing his mother. However, a judge is not required to refer to every piece of evidence in their decision albeit important aspects of the evidence might need to be the subject of specific findings.

22.          Although the judge did not make specific reference to the witness statements in her findings, there is nothing to suggest that she did not consider the content of that evidence adequately. It is reasonable to infer from the findings made at [29] that the judge considered the sponsor's claim that the children were finding it difficult being separated from their mother. She observed that it was natural that the children would miss their mother. However, it was also open to her to go on to find that it was the parents' decision to send the children to the UK in an attempt to strengthen this application. They sent the children in the knowledge that the appellant might not be successful in her appeal and that they might be separated. It was also within a range of reasonable responses to the evidence for the judge to find that, contrary to what was said in his witness statement, the sponsor gave no indication during his oral evidence of the children suffering as a result of the ongoing separation from their mother.

23.          The grounds fail to identify any meaningful challenge to the judge's finding that it would be reasonable and proportionate for the children to return to Albania to be with their mother if they missed her. She gave due weight to the fact that the children had been registered as British citizens, but was entitled to conclude that they had only lived in the UK for a short period of time and that their citizenship status, although important, was not an overriding consideration. At the date of the hearing the sponsor had been deprived of citizenship status and was in limbo awaiting a decision as to whether he would be granted leave to remain. Given his history of serious abuse of the immigration system, it was within a range of reasonable responses to the evidence for the judge to conclude that it would be reasonable and proportionate for family life to continue in Albania as it had done before and/or with both parents.

24.          In the alternative, the judge also concluded that it would be proportionate for the children to remain in the UK with one parent if that was what the parents chose to do. Although it is likely to be in the interests of most children to live together in a family unit with both parents, that has not been the experience of these children. The evidence showed that since their birth they had been brought up by one parent in Albania with regular visits from the other parent who lived in the UK. It is reasonable to infer that the reason why the appellant and the children were unable to apply to come to the UK earlier was because it might expose the sponsor's fraudulent immigration history. The family were separated for many years because of the sponsor's actions.

25.          I bear in mind that children should not suffer as a result of the actions of their parents. However, the background outlined above indicates that the parents continued to take a cynical approach to the immigration system by applying to register the children as British citizens once they understood that the sponsor's citizenship status was at risk. The only reason why the children qualified to be registered was because of the sponsor's original fraud and the fact that the application was made before their father received a final deprivation order. The respondent's policy is not to deprive children of citizenship in such circumstances precisely because they are not accountable for their parents' actions. The children will retain that status and can benefit from it in future.

26.          The judge found that the parents' decision to bring the children to the UK appeared to be a cynical attempt to found an Article 8 claim at a time when the sponsor was likely to be deprived of status. In the circumstances, it is not arguable that the judge's conclusion that the children could remain in the UK with their father with regular visits to see their mother in the school holidays was outside a range of reasonable responses to the evidence. It is open to a judge to take into account a range of factors relating to the public interest when assessing whether they might cumulatively outweigh the interests of the children for the purpose of Article 8(2).

27.          The final point relates to the judge's approach to section 117B NIAA 2002. First, it was not a point that was clearly particularised in the grounds of appeal beyond making general submissions disagreeing with the judge's observations. Second, the findings at [32] only appeared to relate to public interest factors outlined in sections 117B(2)-(3) relating to English language and financial independence. At highest, these are only neutral factors. Third, the judge accepted that the appellant met the English language requirement. The respondent accepted that the appellant also met the financial requirements of the rules. Fourth, even if the judge's reference to not paying taxes and the likely receipt of child benefit were not relevant considerations, there is no evidence to suggest that she placed undue weight on these matters. Although Judge O'Brien observed those findings to be somewhat unclear, when read with the decision as a whole, I do not consider that this point is sufficiently strong, either taken alone or cumulatively with the other points, to find a material error of law.

28.          When the decision is considered as a whole, the judge's findings relating to proportionality were within a range of reasonable responses to the evidence. The family circumstances were considered adequately and the bests interests of the children were clearly kept in mind. It was open to the judge to consider the range of public interest considerations involved in this case, including the underlying reasons why the appellant could not show that she met the 'Eligibility - relationship' requirement due to the sponsor's deprivation of citizenship.

29.          For the reasons given above, I conclude that the First-tier Tribunal decision did not involve the making of a material error of law. The decision shall stand.

Notice of Decision

The First-tier Tribunal decision did not involve the making of an error of law

 

 

M. Canavan

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

18 February 2025