Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/09658/2015
AA/09660/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 22nd July 2016
On 5th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

WILLIAM KIBET KIMELI (FIRST APPELLANT)
SHARON Jepchirchir KIBET (SECOND APPELLANT)
(ANONYMITY DIRECTION NOT MADE)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellants: Mr M Moksud of International Immigration Advisory Services
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction and Background
1. The Appellants appeal against a decision of Judge Anthony of the First-tier Tribunal (the FTT) promulgated on 2nd February 2016.
2. The Appellants are father and adult daughter and are Kenyan citizens born 21st April 1968 and 21st September 1994 respectively.
3. The Appellants appealed to the FTT following the refusal of their asylum and human rights claim. The First Appellant's wife and minor son are dependants in his claim.
4. The FTT heard the appeals together on 28th January 2016, and the appeals were dismissed on all grounds.
5. The Appellants applied for permission to appeal to the Upper Tribunal relying upon two grounds which are summarised below.
6. Firstly it was contended that it was not reasonable to remove the Fourth Appellant and his family to Nigeria. This is an error made by the representatives lodging the application, as the reference to Nigeria should be a reference to Kenya. The FTT had listed four Appellants in the appeal in error, as there were in fact only two Appellants. The Fourth Appellant referred to is Edgar Kibet born 11th December 1999 making him 16 years of age.
7. It was contended that in considering whether it was reasonable for Edgar to return to Kenya, the FTT had erred by not taking into account the cases of Azimi-Moayed [2013] UKUT 00197 (IAC) and SC [2012] UKUT 00056 (IAC). In Azimi-Moayed the Upper Tribunal had given guidance that seven years' residence was a relevant period when considering lengthy residence, and that seven years from age four is likely to be of more significance to a child than the first seven years of life. It was contended that SC indicates that if a child had lived in the UK for eight years and there were no strong countervailing circumstances it would be disproportionate to remove that child. It was contended that Edgar had been resident in the UK for in excess of seven years at the date of the FTT hearing.
8. The second Ground of Appeal was that the FTT erred in dismissing the Appellants' appeals on the grounds of credibility and the delay in claiming asylum.
9. Permission to appeal was granted by Judge Brunnen of the FTT in the following terms;
"1. In a decision promulgated on 2nd February 2015 Judge of the First-tier Tribunal Anthony dismissed the Appellants' appeals against the Respondent's decisions to refuse their protection claims.
2. It should be noted that although the judge named four Appellants, the second and fourth named are the dependants of the First Appellant. Those dependants are not in fact Appellants, they had no rights of appeal to the First-tier Tribunal and have no right to seek permission to appeal to the Upper Tribunal.
3. The grounds on which permission to appeal is sought submit that the judge erred in law in finding, for the purposes of paragraph 276ADE(1)(iv) of the Immigration Rules, that it would be reasonable for the First Appellant's son (referred to by the judge as the Fourth Appellant) to return to Kenya. It is submitted that the judge did not consider the relevant jurisprudence or the Respondent's policies. This is arguable. However, I note that the judge found the son concerned fell within sub-paragraph (iv) because he had been in the UK for at least seven years at the date of hearing. The time periods in paragraph 276ADE are to be reckoned from the date of application. Whether the son qualifies for consideration under sub-paragraph (iv) at all may require further consideration. Assuming that the son has an arguable right to leave to remain under paragraph 276ADE then it is arguable that other family members' family life claims may be strengthened.
4. The grounds submit that the judge in erred in finding that the evidence of the two Appellants (referred to by the judge as the First and Third Appellants) concerning their asylum claims was not credible. This is not arguable. The judge gave clear and cogent reasons for these findings, which were clearly open to him on the evidence.
5. The grounds submit that the background evidence favoured the Appellants. However this would only be of relevance if there were no sustainable reasons for their claims to have been rejected as lacking credibility.
6. Permission to appeal is granted only on the point in paragraph 3 above."
10. Following the grant of permission, the Respondent lodged a response pursuant to rule 24 of The Tribunal Procedure (Upper Tribunal) Rules 2008 contending that the FTT decision disclosed no material error of law. The Respondent pointed out that the First Appellant's son had not been living in the UK for at least seven years at the date of application. The judge erred in finding that the relevant date was the date of hearing, but this error was not material as the judge had not erred in considering whether it was reasonable to expect the First Appellant's son to be removed from the UK.
11. Directions were subsequently issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FTT decision contained an error of law such that it should be set aside.
The Appellants' Oral Submissions
12. Mr Moksud relied upon the grounds contained within the application for permission to appeal and the skeleton argument submitted on behalf of the Appellants dated 22nd March 2016. Mr Moksud did however accept that the FTT had erred in finding that paragraph 276ADE(1)(iv) should be considered in relation to the First Appellant's son, because it was accepted that he had not acquired seven years' continuous residence in the UK at the date of application.
13. I was however asked to find that the FTT had erred by not adequately and properly considering the best interests of the child, and had erred in concluding that it was reasonable for the First Appellant's son to leave the United Kingdom, taking into account his length of residence and his best interests.

The Respondent's Oral Submissions
14. Mr McVeety relied upon the rule 24 response, and agreed that the FTT had erred in considering paragraph 276ADE(1)(iv) in respect of the First Appellant's son. Mr McVeety contended that the error was not material because the FTT had considered at paragraphs 66-68 whether it was reasonable for the First Appellant's son to leave the UK, and had made sustainable findings. Mr McVeety pointed out that the FTT had considered section 55 of the Borders, Citizenship and Immigration Act 2009 at paragraphs 69-71. I was referred to MA (Pakistan) [2016] EWCA Civ 705, in which the Court of Appeal gives guidance on how to consider the test of whether it is reasonable for a child to leave the United Kingdom. I was asked to find that although this decision had not been published when the FTT decision was promulgated, the FTT had in fact followed the correct approach when considering reasonableness. Therefore although it was conceded that the FTT had erred in relation to paragraph 276ADE(1)(iv) the error was not material, as the FTT had correctly assessed the test of reasonableness.
15. At the conclusion of oral submissions I reserved my decision.
My Conclusions and Reasons
16. The FTT erred in recording that there were four Appellants in the appeal, but this is not a material error, and it is not contended to be material by either party.
17. Permission to appeal was granted on one issue, that being whether the FTT erred in assessing whether it was reasonable for the First Appellant's son, aged 16, to leave the United Kingdom and return to Kenya.
18. In my view the FTT erred at paragraph 65, and this is now common ground, having been accepted by both representatives before the Upper Tribunal. The First Appellant's son's case should not have been assessed with reference to paragraph 276ADE(1)(iv). He was not an Appellant, neither had he made an application for leave to remain. The asylum claim was made by the First Appellant on 18th December 2014, and his son entered the United Kingdom on 9th June 2008. It is therefore clear that he had not acquired seven years' continuous residence at the date of application.
19. In my view the correct approach would have been to consider Article 8 outside the Immigration Rules, taking into account the best interests of the First Appellant's son as a child, as a primary consideration. This would have involved a consideration of the factors contained in section 117B, including section 117B(6) which I set out below;
"In the case of a person who is not liable to deportation, the public interest does not require the person's removal where -
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom."
20. This would involve considering whether it is reasonable to expect the child to leave the United Kingdom, and the First Appellant's son would be a qualifying child, because he had lived in the United Kingdom for a continuous period of seven years or more. In this case, the relevant time for calculating the period of residence would be the date of hearing rather than the date of application.
21. The correct approach to considering the test of reasonableness is now made clear by MA (Pakistan) in which it was decided that the test is not restricted to what is reasonable for the child, but should include the wider public interest, including the immigration history of the child and parents. Elias LJ explained at paragraph 45 that the only significance of section 117B(6) is that where the seven year rule is satisfied, it is a factor of some weight leaning in favour of leave to remain being granted.
22. It is correct that the FTT did not refer to the case law relied upon by the Appellants, but the FTT did take into account the guidance given by the Court of Appeal in EV (Philippines) [2014] EWCA Civ 874 and specifically analysed the factors set out in paragraph 35 of that decision, in considering the best interests of a child.
23. The FTT took into account the length of time that the First Appellant's son had been in the UK, and his achievements in education. It also took into account that he had returned to Kenya twice, and noted that he would be returning to Kenya with his parents. The FTT noted that he would encounter "no linguistic, medical or other difficulties in adapting to life in Kenya." In my view the FTT has taken into account all relevant considerations when considering the test of reasonableness, and has not omitted to consider any material factor. Adequate and sustainable reasons have been given for the findings made.
24. Although the FTT erred, I find that the error of law was one of form rather than substance, in that reasonableness should have been considered outside the Immigration Rules, rather than by reference to paragraph 276ADE(1)(iv). But, the correct test was applied and the conclusion reached was open to the FTT on the evidence, and the FTT decision discloses no material error of law.
Notice of Decision

The making of the decision of the FTT did not involve the making a material error on a point of law. I do not set aside the decision. The appeals are dismissed.

Anonymity

No anonymity direction was made by the FTT. There has been no request to the Upper Tribunal for anonymity and I see no need to make an anonymity order.

Signed Date 26th July 2016

Deputy Upper Tribunal Judge M A Hall
TO THE RESPONDENT
FEE AWARD

As the decision of the FTT stands so does the decision not to make a fee award.

Signed Date 26th July 2016

Deputy Upper Tribunal Judge M A Hall