Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10479/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision Promulgated
On: 1st February 2017
On: 4th April 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

KA + 1
(anonymity direction made)
Appellant
And

Secretary of State for the Home Department
Respondent

For the Appellant: Mr Pountney, GMIAU
For the Respondent: Mrs Aboni, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Bangladesh born in 1968. His dependent is his daughter, now aged 10. He appeals with permission1 the decision of the First-tier Tribunal (Judge Sharkett) to dismiss his appeal on human rights grounds.

Anonymity Order
2. This case turns on the human rights of a child. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I therefore consider it appropriate to make an order in the following terms:
“Unless and until a tribunal or court directs otherwise, the Appellant and his daughter are granted anonymity. No report of these proceedings shall directly or indirectly identify the Appellant or any member of his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings”

Background and Matters in Issue
3. The Appellant claims to have arrived in the United Kingdom in 1995. He entered the country illegally and did not make himself known to the authorities. In 2005 he was joined by his wife, who entered in possession of a valid visitor’s visa. Their daughter was born in the UK on the 17th March 2007.
4. Thereafter the family made a number of applications to try and regularise their immigration status. All of these failed. In July 2013 the Appellant’s wife claimed asylum on the grounds that the Appellant was subjecting her to domestic violence. Their daughter was named as a dependent to that claim. It was rejected. In 2015 the Appellant’s wife decided to return to Bangladesh under the Assisted Voluntary Return Scheme. The little girl, and the Appellant, remained in the UK.
5. On the 19th March 2015 the Appellant made an application to the Home Office requesting that he and his daughter be granted leave to remain on human rights grounds. The central submission made was that his daughter had been diagnosed with autism, and had learning, language and speech difficulties. It would be contrary to her best interests to remove her to Bangladesh. It was asserted that she would not receive the specialist help there that was available to her here. In all the circumstances it was submitted that it would not be reasonable to expect her to leave the UK.
6. The Respondent disagreed and refused to grant leave to remain. The Appellant brought an appeal to the First-tier Tribunal, that came before Judge Sharkett on the 16th June 2016.
7. In a determination dated the 13th July 2016 the First-tier Tribunal had regard to the applicable rules – paragraph 276ADE(1) and those parts of Appendix FM concerned with ‘family life as a parent’. It properly directed itself to consider Article 8 ‘outside of the rules’ and s.55 of the Borders, Citizenship and Immigration Act 2009. It noted the parties’ agreement that the central issue was whether it was ‘reasonable’ to expect the Appellant’s daughter to leave the UK. Having done so, it made the following findings of fact:
The Appellant’s daughter can speak and understand Bengali well
She speaks fluent English

She has never been to Bangladesh
She has lived in the UK all her life (at that point 9 years and 3 months)

Until 2015 her main carer was her mother, who now resides in Bangladesh
Her mother remains willing to offer her full help and support
The Appellant has a number of brothers and sisters living in Bangladesh who have children around the same age as his daughter

She attends school in the UK (at the date of the appeal she was in year 4)
She is in mainstream education but receives specialist attention in a small group
While the assistance offered to children on the autism spectrum may be afforded a “higher profile” than in Bangladesh, there is an effective education system there that would be able to cater for her needs. Bangladesh is striving to improve services for children with autism

Her daily life consists of going to school, watching cartoons on TV, and occasionally going to the park or shops with her father
She does not take part in any extra-curricular activity. Her difficulties in social communication mean that she has not developed friendships at school and she continues to live a life very much centred around her father. She has not yet started to develop a private life of her own
The Appellant would be able to work in Bangladesh. He has extensive contacts who could help him find employment and settle there
8. Having had regard to all of those factors the Tribunal found that on the facts, it could not be said that it would be unreasonable to expect this little girl to leave the UK, and go to Bangladesh. The appeal was therefore dismissed under the Rules. The determination goes on to address Article 8 ‘outside of the rules’. In its consideration of proportionality the Tribunal directed itself to consider the public interest as expressed in s117B(1)-(5) of the Nationality, Immigration and Asylum Act 2002. The overall conclusion was that the Respondent had shown the Appellant’s removal to be proportionate. Section 117B(6) did not assist because of the findings already made in respect of 276ADE/EX.1.

The Appeal and Response
9. The grounds of appeal are that the First-tier Tribunal materially erred in the following respects:
i) Failing to “properly consider” the background evidence on the provision of education/ treatment for the Appellant’s daughter in Bangladesh
ii) Failure to “apply the reasonableness test appropriately”
10. The Respondent opposed the appeal on all grounds.
11. I address the particulars of both arguments in my discussion and findings.

Discussion and Findings
The Evidence
12. In his written grounds Mr Pountney set out extracts from several documents that were before the First-tier Tribunal. All of these had been submitted on the Appellant’s behalf; the Respondent had not relied on any country background material. The submission made is that this material could not “at any stretch be said to show that there is an effective education system in Bangladesh to cater for autistic children”. For instance, the Swedish International Development Cooperation Agency report of the 11th June 2015 Disability Rights in Bangladesh found that in 2009 the Disability Rights Watch group estimated that of the 1.6 million disabled children of primary school age, only 4% had access to education. The report concluded that that attainment of rights for disabled people remained a serious concern in Bangladesh. The UNICEF report of 18th June 2014 Situation Analysis on Children with Disabilities in Bangladesh found that discrimination is at the core of most violations of human rights of disabled children. The belief that disability is a curse, punishment for sinful behaviour, permeates society. These social beliefs are deeply rooted and exist at all levels. Children can face such discrimination within their own homes. It is submitted that the First-tier Tribunal “conspicuously failed to engage” with this evidence.
13. Mrs Aboni accepted that the determination does not [at 50-51] refer in terms to any specific background evidence, but she submitted that the overall finding was one that was open to the Tribunal on the evidence before it.
14. The relevant background evidence before the First-tier Tribunal consisted of the following material:
An article from ‘The Independent’ posted online on the 11th April 2016 Autism Awareness in Bangladesh and its Challenges
The US State Department Report 13th April 2016
The Swedish report (supra)
The UNICEF Situation Analysis (supra)
15. Mr Pountney highlighted the parts of that evidence which painted a bleak picture for children with autism in Bangladesh. The article in The Independent (the Bengali publication, rather than our domestic version) pointed out that due to lack of training in the medical profession people with autism often go undiagnosed, or the diagnosis is made very late. Schools are reluctant to take children with autism because they are worried about their behaviour and there is no tailored curriculum for them. The US State Department report that persons with disabilities often face economic disadvantages, and repeats the evidence that 90% of children with disabilities are not sent to school. The Swedish report begins by noting the lack of reliable information on the position of disabled people, and concludes that the attainment of rights remains a serious concern. UNICEF do indeed refer to the widespread societal discrimination faced by person with disabilities, and concur with the view expressed in the other reports that there remain large gaps in provision.
16. That was not however the only evidence offered in these reports. The article in The Independent also reported that there are a number of NGOs promoting the rights of persons with autism and campaigning on their behalf. An international conference on Autism Spectrum Disorders was held in Dhaka in July (I presume this to mean July 2015) and the government has convened a National Advisory Committee on Autism, which has direction of four national task forces. The US State Department note that in 2013 the government introduced the Disability Rights and Protection Act and has since convened a National Coordination Committee charged with coordinating implementation of the Act across all sectors of government. The Swedish report addresses these efforts in some detail. It concludes that the government of Bangladesh has taken a number of legislative and policy steps that indicate a commitment to advancing the rights of persons with disabilities. It has ratified numerous treaties and has introduced domestic legislation and funded implementing agencies. Service and Assistance Centres for persons with disabilities have been established in all 64 districts of the country, providing free access to professional staff including doctors, physiotherapists, clinical speech and language therapists. In 2012 one million people used these services, and the uptake was increasing. NGOs also provided services. Under the heading ‘Right to Health and Rehabilitation’ UNICEF note the challenges faced in the implementation of disability rights provisions but say this:
“Most areas of progress concern children with developmental and neurological impairments. The Global Autism Health Bangladesh initiative, started in July 2011 with unanimous ratification of the Dhaka Declaration on Autism Spectrum Disorders, is taking systematic steps to address issues related to autism and other neuro-developmental disabilities. It is working to strengthen and improve coordination of actions to promote accessibility quality health services, both regionally and globally. This successful initiative has also completed a situation analysis on autism and neurodevelopmental disabilities, which was followed by the development and implementation of the strategic and convergent action plan”.
In respect of education, the report notes that it is not always provided in the mainstream system. Special education services for children with autism or intellectual impairments are provided by NGOs and private organisations.
17. In light of the foregoing I am unable to accept the suggestion that all of the evidence before the Tribunal went one way. Whilst the determination does not refer to specific reports, there plainly was the evidence before the Tribunal to support the central conclusions reached: that the government are striving to improve services for children with autism, and that this little girl would be able to access education, albeit at a lower standard to that available to her in the UK. The negative conclusions highlighted by Mr Pountney were threefold: there is a general lack of education about the disorder, resulting in late or mis-diagnosis, there remains a shortfall in provision and children face discrimination due to societal beliefs about why disability occurs. Those are no doubt very significant challenges. In this case, however, the child in question has already been diagnosed. She has two parents who are committed to ensuring that she receives an education, and who would, it can be assumed, not discriminate against her because of her disability, but would do their best to protect her and educate their wider family about what autism is. Overall I am satisfied that the findings made by the Tribunal were open to it on the evidence presented. The Tribunal was under no illusions as to the comparative benefits to this child of remaining in her current primary school and moving; it expressly acknowledges that the services in Bangladesh are unlikely to be of the same quality as in the UK. That was one factor amongst many that it gave consideration to, and it was entitled to do so.
Reasonableness
18. The central complaint here was that the determination makes no reference to the Secretary of State’s published policy on the proper approach to whether it is ‘reasonable’ to expect a child with more than seven years’ residence to leave the UK. It is submitted that the First-tier Tribunal was referred to that policy. It is not immediately clear from the file whether that is the case, since the policy in question does not appear in the Appellant’s bundle. I accept however that it is referred to in terms in the Upper Tribunal decision of PD and Others (Article 8 – conjoined family claims) Sri Lanka [2016] UKUT 00108 (IAC), which was produced, and latterly in MA (Pakistan) [2016] EWCA Civ 705, which was not (that decision was handed down in the week between this appeal being heard and the decision being promulgated). The policy is called ‘Family Migration: Appendix FM Section 1.0b Family Life (as a Partner or Parent) and Private Life: 10-Year Routes’, and the pertinent part reads as follows:
11.2.4. Would it be unreasonable to expect a non-British Citizen child to leave the UK?
The requirement that a non-British Citizen child has lived in the UK for a continuous period of at least the 7 years immediately preceding the date of application, recognises that over time children start to put down roots and integrate into life in the UK, to the extent that being required to leave the UK may be unreasonable. The longer the child has resided in the UK, the more the balance will begin to swing in terms of it being unreasonable to expect the child to leave the UK, and strong reasons will be required in order to refuse a case with continuous UK residence of more than 7 years.
The decision maker must consider whether, in the specific circumstances of the case, it would be reasonable to expect the child to live in another country.
The decision maker must consider the facts relating to each child in the UK in the family individually, and also consider all the facts relating to the family as a whole. The decision maker should also engage with any specific issues explicitly raised by the family, by each child or on behalf of each child.
(emphasis added)
19. Mr Pountney submitted that the decision cannot possibly be sustained because the Tribunal has failed to take this policy as its starting point. There is a presumption that a child who has accrued seven years or more residence will be granted leave to remain. Since there were not in this case strong reasons to rebut that presumption, the appeal should have been allowed. Mrs Aboni accepted that the policy is not mentioned in the determination, but submitted that the reasoning was nevertheless good. There were in this case strong reasons why leave should not be granted. The Appellant had overstayed and worked illegally (both criminal offences) and had obviously done his best to avoid removal.
20. I accept that the Secretary of State’s policy is obviously a relevant factor. In PD and in MA it was recognised as forming the starting point for decision-makers at all levels. Tribunals are not bound by these policies, but where they operate to an applicant’s advantage, it would plainly be a public law error to exclude them: DS Abdi v Secretary of State for the Home Department [1996] Imm AR 148. In any case where the position of a qualifying child is under consideration, reference should be made to this policy. The First-tier Tribunal has not done so here, and that is an error.
21. I am not however satisfied that the error is such that the decision should be set aside. It is clear from the determination that the First-tier Tribunal has considered all of the relevant factors in this case (bar one: the countervailing factors identified by Mrs Aboni do not feature, but the Appellant can hardly complain about that). The Tribunal has conducted a careful assessment of this child’s position. Two salient features stand out from the many factors that are taken into account; both place this child is in a different position to the generality of children to whom the policy is directed.
22. First, this child’s mother is in Bangladesh. It was the evidence before the Tribunal that her mother continues to love and support her and that she would do her best to do so in person if they were reunited. Her mother was her primary carer until 2015 and she remains in contact with her today. It is always to be assumed that it would be in the best interests of a child to have the benefit of a relationship with both of her parents, and there would appear to be no reason why this child should be any different.
23. Second, this is a child with autism who has not yet started to build a private life of her own outside of the immediate embrace of her family. The clear, unchallenged finding of the Tribunal is that she has not established friendships and has difficulties with social communication. She watches cartoons, attends school and interacts with her father, but has not yet started to develop relationships beyond that. The policy, and the numerous statements that preceded it, is concerned with protecting the private lives of children who have accrued a long residence in this country. The assumption underpinning that is that where a child has reached the age of seven, he or she will have started to “put down roots”. See for instance these remarks by Lord Wallace of Tankerness, made in the debate on the introduction of the 2014 Immigration Act:
“we have acknowledged that if a child has reached the age of seven, he or she will have moved beyond simply having his or her needs met by the parents. The child will be part of the education system and may be developing social networks and connections beyond the parents and home. However, a child who has not spent seven years in the United Kingdom either will be relatively young and able to adapt, or if they are older, will be likely to have spent their earlier years in their country of origin or another country. When considering the best interests of the child, the fact of citizenship is important but so is the fact that the child has spent a large part of his or her childhood in the United Kingdom”2.
24. These statements are no doubt true for most qualifying children, but in this case the First-tier Tribunal has identified particular reasons why they do not apply to this child. Whilst the Tribunal could, and should, have treated the policy as a starting point, it would have been obliged to then look to other factors to decide whether, on the particular facts of this case, these displace or outweigh the presumption in favour of granting leave. I am satisfied that these two factors, so individual to this little girl, would have done so. At paragraph 46 of MA (Pakistan) Elias LJ highlights the correlation between length of residence, age and the development of private life:
“Even on the approach of the Secretary of State, the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise. Indeed, the Secretary of State published guidance in August 2015 in the form of Immigration Directorate Instructions entitled "Family Life (as a partner or parent) and Private Life: 10 Year Routes" in which it is expressly stated that once the seven years' residence requirement is satisfied, there need to be "strong reasons" for refusing leave (para. 11.2.4). These instructions were not in force when the cases now subject to appeal were determined, but in my view they merely confirm what is implicit in adopting a policy of this nature. After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK. That may be less so when the children are very young because the focus of their lives will be on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child's best interests will be to remain in the UK with his parents as part of a family unit, and that must rank as a primary consideration in the proportionality assessment”.
(emphasis added).
In this case it was the overall conclusion that it would not in fact be highly disruptive to this child if she were to go to Bangladesh with her father. Although she would lose the benefit of her small group tuition at school, she would gain her relationship with her mother and extended family in Bangladesh. On the very particular facts of this case, I am not satisfied that the decision of the First-tier Tribunal contains an error such that it should be set aside.

Conclusions
25. I agree with Mr Pountney that it is important that decision makers look to this policy when addressing issues arising from 276ADE(1)(iv), EX.1 and s117B(6) of the 2002 Act (as amended). I am however satisfied that in this case, there were strong reasons why the presumption in favour of granting leave should not be applied. I note that at the date of this decision, a new policy statement is engaged, since the Appellant’s daughter has turned 10 and prima facie qualifies for recognition as a British citizen. It is at present the Respondent’s policy that absent significant criminality, it will never be reasonable to expect a British child to leave the UK: see SF and others (Guidance, post–2014 Act) Albania [2017] UKUT 00120 (IAC), Sanade and others (British children - Zambrano - Dereci) [2012] UKUT 00048 (IAC). That is on its face a quite different policy statement from that considered in this case, and one that the family will be entitled to rely upon in the future. That is a matter for them, and not one capable of establishing any error of approach by the First-tier Tribunal in its determination of the appeal before it.

Decisions
26. The determination of the First-tier Tribunal does not contain an error of law such that it should be set aside.
27. There is an order for anonymity.

Upper Tribunal Judge Bruce
30th March 2017