Tribunal decisions

The decision

Upper Tribunal Appeal Numbers: HU/00899/2015
(Immigration and Asylum Chamber) HU/00900/2015
HU/00902/2015
HU/00903/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 17th November 2016
On 05th December 2016

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

OSKK and others
(anonymity order made)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr E Ikwuazom, instructed by Ernst Law Solicitors
For the Respondent: Mr E Tufan, a Senior Home Office Presenting Officer

DECISION AND REASONS
Anonymity
The First-tier Tribunal made an order pursuant to Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. I continue that order pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008: unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall identify the original appellant, whether directly or indirectly. This order applies to, amongst others, all parties. Any failure to comply with this order could give rise to contempt of court proceedings.

1. This is the appeal of a husband and wife and their two minor children, all Nigerian citizens, who have permission to appeal against the decision of the First-tier Tribunal Judge (Hatton Cross hearing centre) dismissing their appeals against the respondent's decision to refuse them leave to remain in the United Kingdom on the basis of their private and family life in the United Kingdom.
2. The principal appellant came to the United Kingdom in 2004 on a multiple-entry visit visa, valid until 13 August 2006. He overstayed. The principal appellant was arrested in November 2005, on suspicion of handling stolen goods, but gave an alias. He was notified in that identity of his liability to detention and granted temporary admission, and in February 2006, he absconded. In September 2006, having not embarked, he was again encountered working illegally and given temporary admission again, in the alias identity. He absconded, and returned to Nigeria. An application for a further 5-year multi-entry visit visa in August 2006 was refused.
3. The principal appellant entered the United Kingdom in February 2008, with the second appellant, who must have been pregnant, because on 2 July 2008, the third appellant was born in the United Kingdom. It is their case that they have not left the United Kingdom since February 2008. The visit visa on which they entered expired on 11 December 2009. On 9 February 2010, the fourth appellant was born.
4. Human rights applications for leave to remain were made in October 2010 (refused with right of appeal) and July 2011 (refused, no right of appeal). In May 2012, the appellants sought a reconsideration of the latter decision.
5. On 22 August 2013, the principal appellant was arrested in possession of a false employee identity document for the London Underground, which would have enabled him to work on the underground. It is his case, which the respondent has never disputed, that although he possessed the document he had not used it. The principal appellant gave his own name on arrest, but a fingerprint match linked him to the alias previously used for his stolen goods and illegal working arrests. The appellant was convicted of possessing or controlling articles for use in fraud, and received a community sentence (60 hours unpaid work). He did not receive a custodial sentence.
6. The appellant chased the outstanding reconsideration request in May 2014, June 2014 and April 2015. On 28 April 2015, the respondent served him with form RED.0001 notifying him of his immigration status (or lack thereof) and liability to detention and removal. The status of the second, third and fourth appellants is that of dependents in the principal appellant's application, and they also now have no leave to remain and are liable to detention and removal to Nigeria.
7. The appellant appealed to the First-tier Tribunal which dismissed his appeal. The Judge considered the provisions of section 117B(6) and set out his views thereon at [22] - [25] in his decision. However, at [27], he said this:
"27. Having concluded that it would not be unreasonable to require the children to leave the United Kingdom, I go on to consider the position of the parents. For the reasons stated above, I find that they are unable to benefit from the provisions of section 117B(6) of the Nationality, Immigration and Asylum Act 2002 (as amended). I recognise for the purposes of section 117B(2) that the mother and the father speak English. However, I find that section 117B(3) weighs against them as they are not financially self-sufficient and I consider that due to their relative lack of education and the father's criminal record, they are likely to be dependent on benefits if granted leave to remain in this country.
28. However, I find that it is section 117B(1) that weighs most heavily against them. This provision highlights the fact that the maintenance of effective immigration control is in the public interest. In this case, the mother has never had any lawful basis for being in this country. The father has been in the country without leave for a number of years, has previously overstayed an earlier visit visa, and has failed to comply with reporting restrictions imposed on him in the past. ?"
8. The First-tier Tribunal dismissed the appeal. The appellants appealed to the Upper Tribunal. Leave to appeal was granted only in relation to ground 3 of the grounds, in which the appellants argued that the First-tier Tribunal had failed to consider section 117B(6) in relation to these appellants. The assertion that the principal appellant and his dependents cannot benefit from section 117B(6) is unexplained and is plainly wrong: the principal appellant's is not a foreign criminal as defined by section 117D(2) of the 2002 Act, because his criminal conviction did not entail a period of imprisonment of at least 12 months, or cause serious harm, nor is it contended that he is a persistent offender. He is not subject to automatic deportation as a foreign criminal, pursuant to Section 32 of the UK Borders Act 2007.
9. The provisions of section 117B(6) are applicable to the principal appellant's circumstances. Section 117B, so far as relevant, is as follows:
"117B (1) The maintenance of effective immigration controls is in the public interest. ?
(6) 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."
10. Qualifying child is defined at section 117D(1) as:
"117D(1) In this Part - ?
"qualifying child" means a person who is under the age of 18 and who-
(a) is a British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven years or more; ?"
The date when the period of 7 years falls to be assessed is the date of hearing: see MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705 at [13].
11. It is not in dispute that the principal appellant (and indeed the second appellant) has a genuine and subsisting parental relationship with both his children, the third and fourth appellants. Both children are Nigerian, not British citizens, and were born in the United Kingdom. The elder child is now 8 years old. She is therefore a qualifying child under section 117D(1)(b).
12. This application turns on the question whether it is reasonable for that child to leave the United Kingdom, applying section 117D. As seen above, the First-tier Tribunal Judge did consider that and reach the conclusion that it would be reasonable for both children, and in particular the qualifying child, to accompany their parents to Nigeria.
13. I have been directed by Mr Ikwuazom to the consideration of section 117B by the Upper Tribunal in Treebhawon and others (section 117B(6)) [2015] UKUT 00674 (IAC), Rajendran (s117B - family life) [2016] UKUT 00138 (IAC) and PD and Others v Secretary of State for the Home Department [2016] UKUT 108 (IAC). The appellant also relies on the decision of the Court of Appeal in EV (Philippines) [2014] EWCA Civ 874, which predates the introduction of section 117.
14. All of the existing jurisprudence was considered by Lord Justice Elias, with whom Lady Justice King and Sir Stephen Richards concurred, in MA (Pakistan) and his conclusions on the proper approach are to be found at [45]-[47]:
"46. ? 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 (paragraph 11.2.4). ? 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 United Kingdom with his parents as part of a family unit, and that must rank as a primary consideration in the proportionality assessment.
47. Even if we were applying the narrow reasonableness test, where the focus is on the child alone, it would not in my view follow that leave must be granted whenever the child's best interests are in favour of remaining. I reject Mr Gill's submission [on behalf of the second appellant] that the best interests assessment automatically resolves the reasonableness question. If Parliament had wanted the child's best interests to dictate the outcome of the leave application, it would have said so. The concept of 'best interests' is after all a well-established one. Even where the child's best interests are to stay, it may still not be unreasonable to require the child to leave. That will depend on a careful analysis of the nature and extent of the links in the United Kingdom and in the country where it is proposed he should return. What could not be considered, however, would be the conduct and immigration history of the parents."
On similar facts to those in the present case, the Court of Appeal in MA (Pakistan) upheld the decision of the court below in the case of MA and dismissed the appeal.
15. The 7-year rule is not, however, a trump card where the children are not British citizens. Lord Hodge, giving the decision of the Court in the Supreme Court decision in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, said this at [24]:
"24. There is no irrationality in the conclusion that it was in the children's best interests to go with their parents to the Republic of Congo. No doubt it would have been possible to have stated that, other things being equal, it was in the best interests of the children that they and their parents stayed in the United Kingdom so that they could obtain such benefits as health care and education which the decision-maker recognised might be of a higher standard than would be available in the Congo. But other things were not equal. They were not British citizens. They had no right to future education and health care in this country. They were part of a close-knit family with highly educated parents and were of an age when their emotional needs could only be fully met within the immediate family unit. Such integration as had occurred into United Kingdom society would have been predominantly in the context of that family unit. Most significantly, the decision-maker concluded that they could be removed to the Republic of Congo in the care of their parents without serious detriment to their well-being. ?
25. Finally, we see no substance in the criticism that the assessment of the children's best interests was flawed because it assumed that their parents would be removed to the Republic of Congo. ?It was legitimate for the decision-maker to ask herself first whether it would have been proportionate to remove the parents if they had no children and then, in considering the best interests of the children in the proportionality exercise, ask whether their well-being altered that provisional balance. When one has regard to the age of the children, the nature and extent of their integration into United Kingdom society, the close family unit in which they lived and their Congolese citizenship, the matters on which Mr Lindsay relied did not create such a strong case for the children that their interest in remaining in the United Kingdom could have outweighed the considerations on which the decision-maker relied in striking the balance in the proportionality exercise (paras 17 and 18 above). The assessment of the children's best interests must be read in the context of the decision letter as a whole."
Discussion
16. I am satisfied that there is an error of law in the decision of the First-tier Tribunal and I have therefore considered whether it is material to the outcome of the appeal, such that I should set it aside and remake the decision. There is no challenge in the grounds of appeal to the findings of fact in the First-tier Tribunal, at [23]-[27] of the decision.
17. The Judge had regard to all of the evidence which was before him, including letters of support written by friends of the family and the daughter's class mates and a letter written by the qualifying child herself in which she expressed a desire to remain in the United Kingdom. The Judge noted that apart from wearing glasses, the qualifying child had no medical problems, and that she was used to interacting with Nigerian nationals in the United Kingdom and still had relatives there in Nigeria including her grandfather, three aunts and two uncles. He accepted that the qualifying child enjoyed close friendships with the children of her parents' friends, whom she saw out of school but noted that the accommodation conditions of the family were far from ideal. They were sharing a room in a one-bedroom flat with another single male family friend, and were indigent. They depended for survival on financial gifts from others and donations of food from the children's school.
18. The Judge concluded that the family would be able to renew contact with the extended family on their return to Nigeria and that, although neither of the children has ever been to Nigeria, it would be in their best interests to return there with their parents, who have, for a long time now, remained in the United Kingdom without leave.
19. Those are the matters which the Judge would have taken into account in determining the reasonableness of removing the qualifying child with her parents and younger sibling, had he directed himself correctly that section 117B(6) was indeed applicable. The error of law was not material to the outcome of the appeal.
20. I decline to set aside the First-tier Tribunal decision, which will stand, and I dismiss the appeal.
Conclusions
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law. I do not set aside the decision.

Signed: Judith A J C Gleeson Date: 2 December 2016
Upper Tribunal Judge Gleeson