Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/00103/2015
HU/00104/2015
HU/00105/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 14th July 2016
On 16th September 2016

Before

UPPER TRIBUNAL JUDGE REEDS

Between

Tt (FIRST Appellant)
n (SECOND Appellant)
R (THIRD Appellant)
(ANONYMITY DIRECTION MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mr Salam, Salam & Co Solicitors
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellants are citizens of Ghana and the first Appellant is the mother of the second and third Appellants. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI2008/269 as amended) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the Appellant, or the children. For the avoidance of doubt this order also applies to the Appellant and to the respondent. A failure to comply with this order could lead to contempt of court proceedings.
2. The background to the proceedings can be summarised as follows. The first Appellant entered the United Kingdom on 28 January 2006 as a visitor with leave valid until 28th July of that year. The Appellant did not return to Ghana and it is not in dispute that she has remained unlawfully since that date in the UK. During the course of her residence, two children were born, namely the second and third Appellants in 2009 and 2007 respectively. The Appellant's case was that she had lived initially with her partner. However after the breakdown of that relationship, she began living with her half-sister who has provided support and accommodation to the first Appellant and her dependant children from September 2010.
3. On 27th January 2015 the first Appellant applied for leave to remain under the family/private life ten year route but that was refused with no right of appeal on 6th March 2015. A further application was made on 10th April 2015. The application was refused in a notice of immigration decision dated 1st May 2015. The decision made reference to leave to remain as a parent under the Immigration Rules under Appendix FM. The decision letter at paragraph 15 took into account that the Appellant had two children who were born in the UK and that the eldest child had lived in the UK for at least seven years preceding the date of the application. It was further accepted that the first Appellant had sole responsibility for those children and therefore met the eligibility requirements under Appendix FM on the basis of family life as a parent. Thus consideration was given to EX1 of Appendix FM. In that regard the Secretary of State accepted that the first Appellant had sole parental responsibility for the children and that the eldest child had lived in the UK for at least seven years but did not accept that it was unreasonable to expect the children to leave the UK as it was considered that the children were young enough to adapt to life in Ghana where the first Appellant would be able to support them.
4. Consideration was given to the first Appellant's private life under 276ADE noting that she had entered the United Kingdom in 2006 aged 25 and had been resident in the UK for nine years since her arrival. However she failed to meet the requirements of 276ADE(1) as she had not lived continuously in the UK for two years nor that there would be very significant obstacles to her reintegration into Ghana if required to leave the United Kingdom, a country where she had spent her formative years. As to the children, it was stated at paragraph 17 of the decision letter that they failed to meet paragraph 276ADE(1)(iv) and that notwithstanding that they were under the age of 18 years and the eldest child had lived continuously in the UK for at least seven years, it was not considered unreasonable for them to leave the UK on the basis that they were young enough to adapt to life in Ghana along with their mother.
5. The decision also considered any exceptional circumstances for a grant of leave outside the Rules and took into account Section 55 of the Borders, Citizenship and Immigration Act 2009. The Secretary of State considered the documentation provided relating to the children's private life and that whilst it was accepted that they had lived in the UK since they were born, it was considered they were young enough to adapt to life in Ghana, they had not yet spent their formative years in the UK and that their mother could return with them and support them in that country. As to education, at paragraphs 22 to 24, the Secretary of State considered that the children could access education in Ghana and that they were not at a critical stage of their education [24]. It was noted at paragraph 25 that as regards the first Appellant's private life, it had been built up in the knowledge of the restriction on her visa and that she had no legitimate expectation to form a private life in the UK. Thus it was considered reasonable to expect the first Appellant and her children to return to Ghana as a family unit and to enjoy family life there. Consequently the application was refused.
6. The Appellant appealed that decision and the appeal came before the First-tier Tribunal on 10th September 2015. In a decision promulgated on 23rd September 2015 the First-tier Tribunal dismissed their appeals.
7. The First-tier Tribunal found that the first Appellant had a poor immigration history having remained illegally in the UK for nine years and having accessed education and health services she was not entitled to. The judge found that she had had two children during the time she had been resident in the UK and that she was a well-educated woman who could speak fluent English. The judge found that little weight could be attached to the private life she had established in the UK having lived there illegally.
8. As to the children, the judge found that there was a functioning education system in Ghana and that the first Appellant had accessed education in Ghana and had studied to degree level and that the children would be able to benefit in the same way. The judge found that there was no evidence that they would be denied education in Ghana. As to the children's needs, the judge took into account at paragraphs 9 and 10 that the third Appellant was receiving play therapy at school but did not find that there was any evidence to demonstrate that that was necessary for his proper development or that he was assessed as a child with any "special needs". The judge however did accept that they were settled in schools and had made friends but that they could return to Ghana with the assistance of their mother and that there was no evidence to suggest that the removal would harm either child. Consequently the judge found that it was in the best interests of the children to return to their home country and the care of their mother and therefore that the Appellants did not satisfy Appendix FM and paragraph EX(1) as it was reasonable to expect both children to relocate to Ghana.
9. The Appellant sought permission to appeal that decision and permission was granted by Upper Tribunal Judge Goldstein on 20th April 2016.
10. Thus the appeal came before the Upper Tribunal to decide whether the First-tier Tribunal decision involved the making of an error on a point of law. I had the opportunity of hearing submissions from each of the parties which are set out in my Record of Proceedings. Mr Salam submitted that the written grounds had merit and in particular in relation to ground 1 that the judge did not make any reference or place weight upon the importance of the length of the children's residence of seven years. He submitted that this had been referred to in the decision letter but had not been part of the analysis in the First-tier Tribunal's decision. He further made reference to the respondent's IDIs set out in the bundle at page 558 which set out further factors relevant to the issue of reasonableness of return. Thus he submitted that the error made by the judge was material when considering the overall decision made on the issue of reasonableness of return to Ghana.
11. As regards the second ground as set out at paragraph 15 of the grounds, Mr Salam relied upon the report set out at page 450-457 of the bundle. He made reference to the behavioural difficulties indicated by the documents and the effect upon him. He submitted that the child had never been to Ghana having been born in the UK and thus was integrated in the UK and that that was a relevant consideration when considering the issue of reasonableness of return in the context of his special needs. He further submitted that he had no relatives in Ghana and there was no support system in place. As to evidence of integration, he made reference to the evidence relating to their education, the third Appellant's special needs and also the family tries that he had in the UK with the Appellant's half sister with whom they had lived.
12. Mr Bates on behalf of the Secretary of State accepted that there was no mention of the seven years' residence of the children within the determination but submitted that this was not a material error and that it was important to look at the substance of the decision and not the form. He submitted that the judge was clearly aware that the children had been in the UK for seven years. He further submitted that the judge considered the issue of education and specifically considered the lack of access to play therapy. It was open to the judge to find there was no prognosis given or any diagnosis of any specific condition also there was no suggestion that the child would not be able to adapt to life in Ghana. Thus the findings made by the judge upon the issue of reasonableness were open to the judge to make. Thus there was no error of law.
13. At the conclusion of the submissions I gave a short judgment as to why I had reached the conclusion that the decision of the First-tier Tribunal disclosed the making of an error on a point of law and should be set aside.
14. My reasons for reaching that decision can be summarised as follows. As regards the second ground relied upon by Mr Salam, the judge failed to have regard to the evidence from the social worker, I reached the conclusion that this ground had no merit. The grounds make reference to the First-tier Tribunal's failure to make reference to the "detailed letter from a social worker at pages 452-457" (see paragraph 15 of the grounds). However, the evidence in the bundle made reference to a referral being made in respect of the third Appellant for play therapy (see page 455) and that the report in the bundle and referred to in the grounds, whilst written by a social worker, was plainly in the context of the play therapy and not in the context as a child with "special needs" . The judge made specific reference to this at paragraph 9 of the determination and on the evidence before the First-tier Tribunal, the findings at paragraph 10 were open to the judge to make that the third Appellant did not suffer from any diagnosed condition nor had he been assessed as a child with "special needs" (see referral form at page 50). Consequently I found no error of law in the judge's approach when dealing with that part of the evidence.
15. However, I consider that the First-tier Tribunal did err in law in its overall approach to the issue of reasonableness and return to Ghana as set out at paragraphs 14 and 16 of the grounds advanced by Mr Salam.
16. The third Appellant had been in the UK since his birth and therefore had lived here for a period of over seven years. The decision letter made a number of references to the length of residence of the third Appellant and the relevance of this to the decision under challenge. As set out in the jurisprudence and in the decision, the relevance of seven years' residence for a child is of significant weight. In the decision of E-A, the Upper Tribunal considered the effect of a "period of substantial residence" by a child at [39]:
"Absent other factors, the reasons why a period of substantial residence as a child may become a weighty consideration in the balance of competing considerations is that in the course of time such roots are put down, personal identities developed, friendships are formed and links are made with the community outside the family unit. The degree to which these elements of private life are forged and therefore the weight to be given to the passage of time would depend on the facts in each case."
17. In the decision of Azimi-Moayed and Others (Decisions affecting children: onward appeals) [2013] UKUT 00197 (IAC) the Upper Tribunal returned to the issue of the likely nature of any private life formed by a young child at paragraphs 13. At [13(iii)] - 13(iv)] the Upper Tribunal said this:
"(iii) ... residence in a country other than the state of origin can lead to the development of social, cultural and educational ties that it would be inappropriate to dispute, in the absence of compelling reasons to the contrary. What amounts to lengthy residence is not clear cut but past and present policies have identified seven years as a relevant period.
(iv) Apart from the terms of published policies and Rules, the Tribunal notes that seven years from aged 4 is likely to be more significant to a child than the first seven years of life. Very young children are focused on their parents rather than their peers and are adaptable."
18. Whilst the decision in Azimi-Moayed is a case determined after the policy DP/96 being repealed, the Court of Appeal distinguished this case in the decision of MA and Others [2016] EWCA Civ 705 at [71] to [73] and stated that the test can no longer be "compelling reasons" because that was not the language of Section 117B(6) or paragraph 276ADE and that it set the bar "too high". However the decision in MA makes it plain that the length of residence of seven years is a matter of significant relevance and weight. Thus the older jurisprudence has recently been reaffirmed in the decision of MA & Others (as cited) the judgment given on 7 July 2016. In MA the Court of Appeal at paragraphs [46] to [49] placed importance on the length of residence of a child and the fact that a child had been in the UK for seven years must be given significant weight (see [46]). Furthermore, the decision made reference to the position that where a child had been in the UK for that length of time, the starting point is that the child's status should be legitimised unless there was a good reason not to do so (see [103]). When applied to the analysis in the present case, whilst the judge did make reference and considered the best interests of the children at paragraph [14] the judge made no reference to the significance of the seven year residence of the second Appellant at any point in the determination. Whilst Mr Bates on behalf of the Secretary of State in accepted that was the position but submitted that it was not material because it could be inferred from the judge's decision, I do not consider that that can be said. There was no reference in the determination as to that significant factor or what weight it should have in the analysis of the concept of reasonableness and the failure to have regard to such a significant factor is in my judgement so fundamental that it undermined the decision as a whole.
19. I therefore reached the conclusion that the decision could not stand and should be remade.
20. At the hearing I informed the parties that I had found there to be a material error of law for the reasons that I had given above and I proceeded to hear submissions from both parties as to the remaking of the appeal on the evidence as it stood.
21. However, having considered the submissions and looked again at the evidence that was before the First-tier Tribunal and having regard to paragraph 7.2(a) and 7.2(b) of the Practice Direction I have concluded that it is not possible to remake the decision on the findings of fact and upon the evidence as they presently stand. The decision of EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874 as set out in the decision of MA (as cited) at paragraph [48], makes it plain that part of determining the best interests of the children relates to the extent to which they have become distanced from the country to which it is proposed that they are to be retuned and how renewable their connections with that country may be. Furthermore, the IDIs exhibited at page 557 in the bundle also make reference to a number of relevant considerations which included the wider family ties in the UK and the extent of those ties to the relevant children. The First-tier Tribunal heard evidence from the Appellant's half-sister who had also provided a witness statement concerning her relationship with the second children. There was also evidence as to the links in the UK as opposed to those in Ghana. However, there is no reference in the determination concerning that evidence. Thus there are no findings that have been made either as to the extent of their ties in the UK nor upon the issue concerning the extent to which the children were distanced from their country of Ghana, whether there were any social or cultural links and the considerations set out in the IDIs. These cannot be remedied by the submissions that I have heard from both advocates that require findings of fact to be made from oral evidence relating to this issue from the parties including that of the witness.
22. I therefore reach the decision that the appropriate course is that the appeal should be remitted to the First-tier Tribunal when all matters relevant to the issue of reasonableness of return, including the length of residence of the children should be considered. Both children now have been in the UK for over seven years and as the issues to be determined relate to their best interests, in my judgement it is necessary for there to be the opportunity to hear up-to-date evidence concerning their best interests when considering the issue of reasonableness of return.
Notice of Decision
23. The decision of the First-tier Tribunal contains a material error of law such that it should be set aside. The appeal is remitted to the First-tier Tribunal for a rehearing.
24. Anonymity direction made.

Signed
Date
Upper Tribunal Judge Reeds 16th September 2016