Case No. UKUT-00129-(IAC)

falls to be assessed by considering the actual facts (including how long a child is likely to be outside the territory of the Union), rather than theoretical possibilities. DECISION AND REASONS 1. By a decision promulgated on 25 November 2019 (a copy of which is attached) the Upper Tribunal set aside a decision of the First- t ier Tribunal promulgated on 14 May 2019 . We now re - make that decision. A. Bac kground 2. The appellant is a citizen of Pakistan who was born , and has spent nearly all of her life , in the United Arab Emirates. On 2 May 201 6, whilst pregnant with her first (and only) child, s he travelled to the UK from Dubai as a visitor with leave until 6 July 2016 . 3. On 4 July 2016 she applied for leave to remain in the UK on the basis that she was 30 weeks pregnant and had been advised that it was not safe for her to travel because of previous miscarriages (“the 2016 application”) . In the 2016 application she requested six months leave . 4. On 6 September 2016 the appellant gave birth to her daughter, who is a British citizen. 5. The appellant’s partner (who is her child’s father ) is a British citizen who has two teenage sons (born in February 2003 and September 2004) from a previous relationship . 6. In January 2018 the appellant varied her application in order to apply for leave to remain on the basis of her family life with her partner and child ( “ the 2018 application”) . 7. On 19 March 2018 the respondent refused the application on the basis that: a. the appellant did not qualify for leave as a partner under Appendix FM of the Immigration Rules because ( i ) she had not provided evidence to show she had been living with her partner for at least two years and therefore she was not a “partner” as defined in GEN.1.2. of Appendix FM of the Immigration Rules; and ( ii ) she was in the UK as a visitor and therefore by operation of E-LTRP.2.1 of Appendix FM was not eligible to be granted leave as a partner even if (which was accepted) there would be insurmountable obstacles to family life with her partner continuing outside the UK ; b. s he did not meet any of th e private life routes to leave under paragraph 276ADE(1) ; and c. r efusing leave would not result in an unjustifiably harsh consequence that would breach Article 8 because , having entered the UK as a visitor, she had no legitimate expectation of being able to remain permanently ; and her daughter ’s rights as a British citizen would not be denied by her removal because the child could remain in the UK with her father. B. Scope of the Appeal and Issues in Dispute 8. Mr Lindsay, in his skeleton argument, accepted that: a. t here are insurmountable obstacles to