Tribunal decisions

The decision

Upper-Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00102/2015

THE IMMIGRATION ACTS

Heard at Field House, London
Decision & Reasons Promulgated
On the 23rd January 2017
On 1st February 2017

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between:
N.H.H
(Anonymity Direction made)
Claimant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant in the Upper Tribunal

Representation:
For the Claimant: Mr Heywood (Counsel)
For the Secretary of State: Mr Tufan (Home Office Presenting Officer)

DECISION AND REASONS
1. This is the Secretary of State's appeal against the decision of First-tier Tribunal Judge James promulgated on the 8th August 2016, in which he allowed the Appellant's appeal against the Respondent's decision to refuse to grant him leave to remain in the UK on Human Rights grounds under Article 8 of the ECHR. The Secretary of State has appealed against the decision of First-tier Tribunal Judge James for the reasons set out within the Grounds of Appeal. This is a matter of record and is therefore not repeated in its entirety, but in summary, it is argued that the Judge made a material misdirection in law and gave inadequate reasons for his decision. It is argued that the First-tier Tribunal Judge allowed the Appellant's appeal on the basis that paragraph 276 ADE (1) (iv) applied in the appeal and found that it would be unreasonable to expect the Appellant to leave the UK in light of his central role as a supporter for his eldest child. However, it is argued that the First-tier Tribunal Judge erred in that, the Appellant's eldest child was born on the 4th January 2009 and was therefore not aged 7 years old as at date of the application. It is then argued that the required proportionality assessment inherent in applying the reasonableness test whether under the Rules or under Section 117 B (6) is fatally flawed and that the Judge failed to identify the public interest focused within the Rules and give it appropriate weight following the Court of Appeal case of SS (Congo). It is further argued within the Grounds of Appeal that the Judge erred in his approach to Section 55 at paragraph 31 of the judgment and failed to consider that if neither parent had the right to remain and that was the background which assessment was to be conducted, and that the ultimate question was whether it was reasonable to expect the child to follow the parent with no right to remain to the country of origin following the case of EV (Philippines) [2014] EWCA Civ 874. It is argued the Judge considered the child first rather than considering the family circumstances together following the Upper Tribunal case of PD [2016] UKUT 00108 and it is further argued that the Judge failed to take account of the wider public interest considerations and significance cost to the UK allowing the family to remain, the deliberate overstaying of the parents and their unlawful employment, when conducting the reasonable assessment as per the Court of Appeal case of MA v Secretary of State of the Home Department [2016] EWCA Civ 705. It was further argued that his findings at paragraph 32 are insufficently reasoned given the Appellant had family in Bolivia and the Appellant had no difficulty working in the UK and that there are private institutions available in Bolivia for the education of the children.
2. Permission to appeal has been granted by First-tier Tribunal Judge Saffer on the 1st December 2016 when he found that it was arguable the Judge materially erred in allowing the appeal under Article 8 despite not looking at the matter for the length of the Immigration Rules that the Appellant did not meet and in not looking at the family holistically as well as individually when considering the question of reasonableness of returning to Bolivia and in failing to take account of the very significant cost of the public purse in the proportionality balancing exercise. He said that all grounds could be argued.
3. It was on this basis that the case came before me in the Upper Tribunal. At the appeal hearing, Mr Heywood handed in a Rule 24 Notice, which I have fully taken account of in reaching my decision.
4. In his oral submissions, Mr Tufan relied upon the Grounds of Appeal. He argued that the Judge had said that the appeal succeeded under paragraph 276 ADE of the Immigration Rules but that the eldest child was not aged 7 years old as at the date of the application. He argued that having failed under the Rules, there would have to be compelling factors for the Judge to allow the appeal under Article 8 following the case of SS (Congo). However, Mr Tufan recognised that the children had autism which in fact could be a compelling circumstance in the case. Mr Tufan argued that neither parent was a British citizen and the appeal should have been considered on that basis and that the ultimate question was whether it was reasonable for the children to remain in the UK. He argued that even if it was in the best interests of the children remain it may not be unreasonable to expect them to leave. He further argued that the Judge should not have given weight to the oral assessment of the Appellant's wife that schools for children with autism were not available in Bolivia.
5. In his oral submissions, Mr Heywood argued that the final submission of Mr Tufan that the Judge should not have given weight to the evidence of the mother strayed beyond the Grounds of Appeal. He argued that the Judge heard evidence from the mother regarding the fact that one school that had previously provided education to children with autism had closed and that the other school did not accept children over 7 years of age. He further relied upon his Rule 24 Reply. He argued that the Judge had properly considered the position of the whole family and that the Judge had given clear and adequate reasons for his findings. He argued that the Judge did not need to give reasons for and against every possible conceivable point that might be raised or been relevant. He argued that although the grounds had said that the Judge had allowed the case under paragraph 276 ADE, the jurisdiction was under human rights and the Judge allowed the case on Article 8 grounds. He submitted that the Judge had specifically made reference to the public interest considerations and that when considering the case under Article 8 in considering Section 117 B (6), the Judge was entitled to take into account there that the eldest child was a qualifying child who had lived in the UK by that stage over 7 years, having been born in the UK but not being a British citizen. He argued that the Appellant's position was intolerable due to the position of the children and that the Judge was entitled to find that there was no education provision available for the children in Bolivia. He submitted that the decision did not reveal any material errors of law.
6. I reserve my decision on error of law and materiality.
My Findings on Errors of Law and Materiality
7. The Appellant's eldest boy child was born on the 4th January 2009, and his second child a girl, was born on the 25th May 2011. By the date of the statement of additional grounds upon which the application was considered on the 9th April 2015, neither child was in fact 7 years old. Pursuant to paragraph 276 ADE (1) (iv), it is a requirement that as at the date of the application an applicant is under the age of 18 years old and has lived continuously in the UK for at least 7 years and that it would not be reasonable to expect the applicant to leave the UK. First-tier Tribunal Judge James therefore did err in finding that paragraph 276 ADE (1) (iv) applied. However, I do not consider that error to be material in the circumstances of this case. As was quite properly conceded by Mr Tufan on behalf of the Secretary of State, the fact that the eldest child was aged 7 years old by the date of the hearing before Judge James, could amount to a compelling circumstance that could potentially justify leave being granted on Article 8 grounds outside of the Immigration Rules. Pursuant to Section 117 (B) (6) in the case of a person who was not liable to deportation, the public interest does not require the person's removal where the person has a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect the child to leave the United Kingdom. However, for those purposes a qualifying child under Section 117D simply means a person who is under the age of 18 and who is either a British citizen or has lived in the United Kingdom for a continuous period of 7 years or more. Under Section 117D, that does not have to be considered as at the date of the application, and had to be considered as at the date of the hearing before Judge James, and as at that date, the Appellant's eldest child was over the age of 7 years old and therefore was a qualifying child in that regard..
8. When considering the proportionality the Judge was therefore obliged to consider the claim on the basis that the decision was unlawful and contrary to Section 6 of the Human Rights Act has been in breach of the Appellant's Article 8 human rights, although clearly he had to consider that issue "through the lens" of the Immigration Rules. Although the Judge did err in his consideration of the Immigration Rules in the fact that the eldest child was not aged 7 at that stage of the application, the Judge did properly consider the Appellant's Article 8 claim in all other respects, and in particular took account of Section 117 (B) (6) which he was entitled to do, given the fact that the eldest child by that date was over 7 years of age. In that regard, the reasoning given by the Judge as to why it would not be reasonable to expect the eldest child to leave the UK given his autism and his consideration of that issue between paragraphs 14 and 31 of the decision, was well-reasoned, and the reasons are both adequate and sufficient, and the Judge made findings which were open to him in this regard. The Judge was perfectly entitled to take account of all the medical and educational evidence in respect of the eldest child and the evidence that the Appellant eldest child required specialist and high-intensity input in order to address his personal, emotional and educational development.
9. The Judge was also entitled to take into account the evidence from the Appellant's wife that she had made investigations into the two schools suggested by the Respondent in the refusal letter as being places where would be appropriate for children with autism to study in Bolivia, and was entitled, having heard from her, to find that one of those schools did not accept children over 7 years of age and that the other school in La Paz referred to by the Respondent was no longer in operation and was now a private school and that the evidence contained within the Country of Origin Information report was by that stage 3 years and 9 months out of date. The Judge having heard from her, found her credible in that regard, this was evidence the Judge was entitled to take account of, despite the fact there was no corroborative documentary evidence in that regard. The Judge is entitled to believe a witness, if he finds them credible and accepts the evidence is genuine and honestly given and he has given adequate and sufficient reasons for his findings, as he did in respect of this issue.
10. Given the severity of the eldest child's autism and the intensive care and input that he requires, and the evidence regarding the lack of such intensive education for children with autism presently in Bolivia, the Judge was entitled to find that that it would not be reasonable to expect the eldest child to return to Bolivia. In that regard, Judge James has clearly taken account at [29] of the public interest concerns and the need for an effective immigration control and the reasons put forward within the refusal, as he properly states within the decision. He has taken account of the public interest concerns affecting the family as a whole and the background of the parents when reaching his decision, as he was required to do by the Court of Appeal in the case of MA (Pakistan) v Secretary of State for the Home Department [2008] EWCA Civ 1616, to which the Judge makes specific reference at [30]. The background circumstances surrounding the parents were set out in the refusal notice which the judge says he has specifically considered . The Judge has also fully taken account and applied the decision in the case of PD and Others (Article 8-conjoined family claims) Sri Lanka [2016] UKUT 108 (IAC) at 29, when considering the question of reasonableness and as to whether it would be reasonable to expect the eldest child to return to Bolivia and has considered the position of the whole family when considering the issue of reasonableness of return.
11. In such circumstances, even though First-tier Tribunal Judge James did err in finding that paragraph 276 ADE (iv) applied, given that the eldest child was not aged 7 at the date of the application, the Judge was perfectly entitled to find that the decision was disproportionate to the legitimate public aim sought to be achieved and was in breach of the Appellant's human rights under Article 8 of the ECHR, taking account of, that the public interest did not require a person's removal where he had a genuine and subsisting parental relationship with a qualifying child, which he did, and it would not be reasonable to expect the child to leave the United Kingdom under Section 117 (B) (6) of the Nationality, Immigration and Asylum Act 2002. The Judge has considered the family circumstances together and has applied the wider public interest considerations.
12. Further, although the Judge has not fully and adequately explained his reasons in respect of the younger child at [32] as to why her removal would lead to a compromise of her bodily integrity and why there would be very significant obstacles to her return and why that would lead to unduly harsh consequences for her family, given his clear, adequate and sufficient reasons in respect to the first child that it would not be reasonable to expect the first child to leave, bearing in mind all of the public interest considerations and the background of the family in its entirety, as the Judge has properly done, and whether that meant that the Appellant's human rights were infringed, the error in that regard is not material.
13. In such circumstances the decision of First-tier Tribunal Judge James does not reveal any material errors of law and is maintained.

Notice of Decision
The decision of First-Tier Tribunal Judge James does not reveal any material errors of law and is maintained.
I do make an anonymity order in this case, given that the case does involve the consideration of children. No transcript or other report of this judgement may refer to the appellant or any member of his family by name or by any other means that may lead to them being identified. Failure to comply with this direction may lead to Contempt of Court proceedings.

Signed

Deputy Upper Tribunal Judge McGinty Dated 24th January 2017