Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/12802/2015
AA/12806/2015
AA/12811/2015
AA/12812/2015
AA/12803/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 14th October 2016
On 24th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

(1) MONIR [H]
(2) MOSAMMAD [A]
(3) [JA]
(4) [AYA]
(5) [ANA]
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr S Muquit (Counsel)
For the Respondent: Ms H Abone (HOPO)

DECISION AND REASONS

1. The Appellants are a family of Bangladeshi nationals and the first and second Appellants are husband and wife, being born on 10th June 1971 and 1st May 1977, respectively. The third, fourth and fifth Appellants are their children and they were born in Bangladesh on 2nd February 1999, 3rd February 2002 and 10th June 2004. The Appellants appealed to the First-tier Tribunal against the decision of the Respondent dated 29th September 2015 rejecting their appeals for refugee asylum status and for humanitarian protection on the basis that the decision by the Respondent would not be a breach of the United Kingdom's obligations under the Refugee Convention and the European Convention on Human Rights.
2. The Appellants' appeal was heard by First-tier Tribunal Judge Heatherington on 2nd June 2016 and promulgated on 15th June 2016. In paragraph 78 of the determination, the judge observed that:
"The first Appellant is 44. The second Appellant is 39. Most of their lives has been spent in Bangladesh including their formative years. The first Appellant has been in the United Kingdom for less than three years and the second Appellant for eight years. They are have full immigration records. They are Bangladeshi citizens with no status or rights to be in the United Kingdom. It is undisputed that they entered this country illegally. They also always knew they had no right to be in the United Kingdom when they conceived Jannat and the child due to be born in August 2016. I attach little weight to any private life they have established" (paragraph 78).
3. The judge went on to consider the position of the children, and applying the Court of Appeal decision in EV (Philippines) [2014] as well as the Supreme Court decision in Zoumbas [2013] UKSC 74. The judge concluded that all the children are Bangladeshi nationals, and that they were now age 17 years, 14 years, 12 years and Jannat was 1 year old. The judge also noted that since 2007, the third, fourth and fifth Appellants have only known life in the United Kingdom. Jannat, who was 1 year old had only known life in the UK as well. However, the judge went on to state that, "The children have mostly only known life with their mother. Until 2007 and since 2013 the children have only known life with both their parents". It was further noted that, "during their eight years living in the United Kingdom I found that the third, fourth and fifth Appellants have developed close bonds with their friends and peers from their neighbourhood and schools" (paragraph 83). The third, fourth and fifth Appellants were also at school "and they have made good progress" (paragraph 85).
4. The judge was not oblivious to the demands of immigration control and noted that immigration ought to be controlled competently and without lengthy delays but that, "It is not clear why there has been such a delay in progressing the second Appellant's 2007 asylum claim and the associated claims of the third, fourth and fifth Appellants. The Secretary of State must shoulder the blame" (paragraph 86). Whilst it was a case that the court's function was not to discipline or punish the Secretary of State (see paragraph 87), nevertheless it was clear on the basis of longstanding authority, such as EB (Kosovo) [2008] UKHL 41, that delay can be relevant in a number of ways, not least that the longer someone was in the UK the more likely it was that he or she would develop important social connections in this country and have significant private or family life here, but also that this may reduce the significance to be given to immigration control when assessing whether a decision to remove the individual is proportionate (see paragraph 88).
5. The judge's conclusion was that the third, fourth and fifth Appellants "have enjoyed United Kingdom culture for more than eight years" and that they speak English, and they have "bonded with their friends and peers in their neighbourhood and schools in the United Kingdom" and that "they have been separated from Bangladeshi culture for most of their lives" and "have some Bengali, but this consists of easy Bengali words", such that their lack of ties in Bangladesh are such that "the balance points to there being insurmountable obstacles to family life continuing in Bangladesh" (paragraph 90).
6. The appeal was allowed.
7. The Grounds of Appeal argued that the Article 8 assessment was flawed. On 6th July 2016, permission to appeal was granted on the basis that the judge's failure to demonstrate that consideration had been shown to whether circumstances requiring an Article 8 consideration on a freestanding basis were present and failed also to give weight to the public interest in removal and failed to apply the statutory considerations set out in Section 117B of the 2002 Act.
8. At the hearing before me on 14th October 2016, Ms Abone, appearing on behalf of the Respondent Secretary of State relied upon the Grounds of Appeal.
9. First, the judge at paragraph 74 conducted the assessment for Article 8 without any reference to the Appellants' individual failures to meet the Immigration Rules and the concurring leave to show compelling circumstances outside the Rules, which SS (Congo) [2015] EWCA mandatory has been the starting point for the assessment of public interest.
10. Second, the judge made no findings on the administrative delay in the case even though she acknowledged that the binding authority indicated that only evidence of a blanket failure in the system could lead to the reduction of a public interest.
11. Third, the judge had at paragraph 90 materially erred in failing to give lawful reason why the public interest did not outweigh the private lives of the three children. She found that the children had limited Bengali but explained that the parents of the children did not speak English, such that there must have been the possibility of communication between them in Bengali.
12. Fourth, the judge failed to apply Section 117B of the 2002 Act in relation to the children's private rights. The judge gave no explanation as to why the conditions in Bangladesh would affect negatively the future lives of these children bearing in mind that they would be with their parents and the appeal had been thoroughly rejected and there was no weighing on the public interest side.
13. The Appellants representative relied upon his "response to SSHD's grounds". He had made the following submissions. First, he explained that given that the family had resided in the UK for seven years, that the Appellants would succeed under paragraph 276ADE(1)(b) as it would not be reasonable to expect the children to leave the UK. Second, the children had lived continuously in the UK for eight years since 2007 and had been separated from Bangladeshi culture for most of their lives. They spoke English and only a little Bengali such that, as the judge found, this consisted of easy Bengali words. Third, and since 2007, the children had lived in the UK and known life only in the UK and had developed close bonds with their friends and peers from the neighbourhood and schools and had made good progress at school as the judge found. Accordingly, and for all these reasons, the children satisfied the requirements of paragraph 276ADE(1)(b) and were entitled to remain in the UK.
14. Given that the judge also found that the family lived together as a family unit, and normally the best interests of the children are met by remaining with their parents, the judge was not oblivious to the needs of immigration control, but had viewed the existence of delay, without any explanation being given for it by the Respondent Secretary of State, as one that would have strengthened the Article 8 claim of the family in accordance with the House of Lords judgment in EB (Kosovo).
15. Finally, the Secretary of State has misconceived the facts because the Article 8 claim was not allowed outside the Immigration Rules on a freestanding basis, but was one which was considered within the Immigration Rules, namely, to fall under paragraph 276ADE(1)(b).
Error of Law
16. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are as follows. It is true that paragraph 276ADE(1)(b) provides for a situation where a child is under the age of 18 years and has lived continuously in the UK for at least seven years, with the result that this allows a child to make an application for leave to remain, bringing into the Immigration Rules the old policy of DP5/96 which had the same effect, but there are exceptions to this Rule, in the form of qualifications, if the applicant or their family have a particularly poor immigration history. This was the case here.
17. A presence within the jurisdiction of seven years alone will not suffice because the Rule stipulates that it must also additionally be the case that "it would not be reasonable to expect the applicant to leave the UK". The judge thought it was not reasonable because the third, fourth and fifth Appellants had enjoyed United Kingdom culture for more than eight years, spoke English, and had bonded with their friends and peers in their neighbourhood and schools in the UK."
18. However it is arguably going too far to say that they have been separated from Bangladeshi culture in circumstances where their own parents retained the culture and speak Bengali. In any event, the overall ethos of paragraph 276ADE appears to have been overlooked because as the recent Court of Appeal judgment in Koori [2016] EWCA Civ 552 makes clear, "paragraph 276ADE is designed to strike a balance between competing interests and to identify when the public interest in proper immigration control should give way to the demands of private and family life" (paragraph 35).
19. In this case, the judge added particular importance to the fact that the second Appellant, the wife, had made a 2007 application which remained outstanding and had not yet been determined, such that this delay was inexplicable, and entirely to be laid at the door of the Respondent Secretary of State. However, as the Rule 24 response makes clear the delay in this respect related to an untenable (and the language used by the Respondent is "a completely fabricated") asylum and Article 3 human rights argument.
20. It is in any event, clear that, as the judge rightly observed, it is not part of the judicial function to discipline or reprimand the executive body tasked with the implementation of immigration control in an area of important public policy. The case of Koori [2016] EWCA Civ 552 provides a helpful reminder, in circumstances where spurious claims are made, that, "an administrative body cannot keep revisiting decisions which affect individual rights: there must be finality, at least unless there is a powerful public interest to the contrary" (see paragraph 31).
21. This is a case where, as the judge properly recognised, the Appellant had "never planned to leave the United Kingdom" and "he chose not to claim asylum; he only did so nine months later and then only because he had no other option". Moreover, "he planned to stay indefinitely. He brought all his money from Italy, intending never to leave. He was able to enter the United Kingdom in 2013 by telling lies. He was not a seven day tourist" (see paragraph 62).
22. In the circumstances, the individual failures of the Appellants to meet the Immigration Rules should have been considered in the context of the public interest before it was decided that this did not outweigh the private rights of the three children.
23. The failure was significant in the light of Section 117B of the 2002 Act where, generally speaking, the maintenance of effective immigration control is in the public interest, and even where there is a qualifying child, it is necessary to, in the context of the overarching policy, to consider whether it would not be reasonable to expect the child to leave the United Kingdom.
Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is remitted back to the First-tier Tribunal, to be determined by a judge other than Judge Heatherington under Practice Statement 7.2(b) because the nature and extent of any judicial fact-finding which is necessary in order for the decision in the appeal to be remade is such that it is appropriate to remit the case to the First-tier Tribunal.

This appeal is dismissed.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 22nd October 2016