Private and family life Article 8 of the ECHR

Wambua v Secretary of State for the Home Department [2016] CSIH 42 (Article 8 of the ECHR)

This is an application for permission to appeal against a decision of the Immigration and Asylum Chamber of the Upper Tribunal. The applicant is Thomas Wambua (citizen of Kenya). He entered UK in August 2007 and currently resides in Perth. Mr Wambua has a daughter who was born in 2011 in Scotland. The mother of the daughter is a citizen of Czech Republic and accordingly is also a citizen of the Czech Republic. The applicant and the mother of the daughter lived together but eventually separated and the mother of the daughter has now married another man. The daughter lives with her mother and her mother’s husband and has good contact with the applicant.

The applicant applied for leave to remain in September 2014, which was refused. He appealed on grounds that his removal from the UK would interfere with his private life and family life under Article 8 of the ECHR. In August 2015 the First Tier Tribunal granted a permission to appeal to the Upper Tribunal bearing in mind the fact that if the applicant was removed from the UK, his regular direct contact with his daughter would not continue. The appeal was refused and the application for permission to appeal the decision of the Upper Tribunal was refused as well in November 2015.

The proposed grounds of appeal were as follows:

1. The Upper Tribunal erred as to the citizen status of the applicant’s daughter and the mother of the daughter in finding their immigration statuses to be “precarious rather than assured”.
2. The Upper Tribunal erred in its assessment attaching less than primary EU status to the child and failing to have regard to the applicant’s best interest in retaining direct contact when considering proportionality.
3. The Upper Tribunal erred in its assessment of proportionality by balancing the effects on the child against the need to maintain the Rules.
4. The Upper Tribunal erred in its assessment of proportionality by treating the need to maintain effective immigration control more significant than the best interests of the child.
5. The Upper Tribunal erred in questioning the negative question as to whether there would be any negative effect on the child if she saw less of her father rather than positive effect what is in the child’s best interests.
6. The Upper Tribunal has failed to take into account the applicant’s daughters right to regular direct contact with her father.

In order to grant a permission, the court is required to apply what was described in case Eba v Advocate General [2012] and Nigeria v Secretary of State for the Home Department [2014] as requiring the identification of an error which “cries out for correction”. An arguable material error in law is not enough the appeal must also raise an important point of principle or there must be some other compelling reason.

The applicant argues that the best interests of his daughter had not been correctly assessed at any stage. The immigration authorities have a duty to ensure that immigration functions are discharged safeguarding and promoting the welfare of children who are in the United Kingdom.

Before the permission to appeal is granted, the following points must be satisfied:

1. The relevant proposed ground of appeal is stated in clear and specific terms
2. That it is on point of law
3. That it arises from a decision made by the Upper Tribunal
4. That it is arguable with real prospects of success
5. That it meets one or other of the legs of the second appeals test

The decision made by the Upper Tribunal was on the question raised whether First Tier Tribunal had given insufficient consideration to the best interest of the child. The proposed argument is of point of law that the Upper Tribunal was bound to have regard to the child’s right to “the greatest extent possible” and subsequently failed to do so. The Upper Tribunal was encouraged to make its decision by reference to best interests in assessing proportionality.

While the ground 4 point is no doubt a point of law, it is a point of law in the abstract, it does not arise from the particular decision of the Upper Tribunal which the applicant wishes to bring under appeal. This court therefore does not have jurisdiction in respect of an appeal presented under the ground 4. Accordingly, the permission to appeal the decision of the Upper Tribunal is refused.

The Judge in the Upper Tribunal acknowledged that the appellant’s child’s right of regular contact with her father was not taken into account. Furthermore, the mere fact that this point was not included in the appeal before the Tribunal is not of itself a basis on which to refuse permission as cited in the case R v Immigration Appeal Tribunal and Bulale v Secretary of State for the Home Department.

In this particular case the outcome reached by the Upper Tribunal was on the issue raised from the four grounds of appeal from the First Tier Tribunal summarized by the grant of permission whether the First Tier Tribunal had given insufficient consideration to the best interest of the appellant’s daughter. The crucial point of law is that the Upper Tribunal was bound take into account the appellant’s daughter’s right Article 24(3) ‘to the greatest extent possible’ and subsequently failed to do so.

Conclusion

As pointed out, the Upper Tribunal was not asked to take into account any Article 24(3) right. Instead it was encouraged to make the decision by reference in considering the assessment of proportionality. In the application for leave these considerations are specifically distinguished from the Article 24(3) right consideration. The approach the Upper Tribunal should have adopted is radically different from that which had been contended when the appeal was argued before the Upper Tribunal and by reference to which the Upper Tribunal made the decision. There is nothing in the Upper Tribunal’s reasoning about Article 24(3). The ground 4 point undoubtedly is a point of law, it is a point of law without concrete existence, it does not arise from the particular decision of the Upper Tribunal which the applicant wishes to appeal. Therefore, the Upper Tribunal does not have jurisdiction in regards of an appeal put forward under ground 4. Subsequently, the permission to appeal the decision of the Upper Tribunal is refused.