Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/01118/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5th December 2016
On 23rd December 2016

Before

DEPUTY UPPER tribunal JUDGE SAFFER

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

reshmaben JAYESHKUMAR patel
(anonymity direction not made)
Respondent

Representation:

For the Appellant: Mr P Armstrong, Home Office Presenting Officer
For the Respondent: Mr Seeboruth of Counsel

DECISION AND REASONS

Background
1. For the avoidance of confusion with the First-tier Tribunal I will hereinafter refer to Mrs Patel as the Appellant and the Secretary of State for the Home Department as the Respondent.
2. The Respondent refused the Appellant's application for leave to remain on the basis of her private and family life on 10th June 2015. She was required to leave the United Kingdom. The appeal was allowed by First-tier Tribunal Judge Aziz ("the Judge") following a hearing on 14th June 2016.
3. She is a citizen of India who was born on 1st December 1975. Her husband Mr Jayash Kumar Patel is an Indian national who has no leave to be in the United Kingdom. Their children, Akash (born on 26th August 1994) and Harshkumar (born on 20th March 1997) were both adults at the date of decision and by that date had both been given leave to remain in the United Kingdom, in the case of Akash until 14th March 2017 and in the case of Harshkumar until 23rd January 2018. That evidence was before the Judge when he made his decision.
The Grant of Permission
4. First-tier Tribunal Judge Ford granted permission to appeal (28th October 2016). She said it is arguable that the Judge may have erred in the proportionality assessment in that the Tribunal did not take into account the poor immigration history of the Appellant and her husband in the consideration of the reasonableness of requiring the children to leave the United Kingdom (see MA (Pakistan) and Others [2016] EWCA Civ 705.)
The Respondent's Position
5. The Appellant had overstayed significantly and the Judge only comments on the positive aspects of the appeal. The Appellant had been untruthful to the Entry Clearance Officer and lied regarding how long she intended to come here. Reliance was placed on MA. In essence, 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 be not unreasonable to require the child to leave [47]. There is nothing intrinsically illogical in the notion that whilst the child's best interests are for him or her to stay, it is not unreasonable to expect him or her to go [54]. The conduct of the parent is relevant to their own situation which bears upon the wider public interest and does not amount to blaming the children even if they may be prejudiced as a result [88]. The court can have regard to the wider public interest, including immigration history of the applicant and his parents [101]. These are not British children.
Appellant's Position
6. No reply notice was filed. It was submitted orally that the determination was comprehensive and the appropriate factors were taken into account. Both children had been granted leave to live in the United Kingdom and in those circumstances it is not reasonable to ask them now to leave. They are both doing well here in their studies. The Judge did not misdirect himself on the law and took into account all relevant factors.
Judge's Determination
7. It was found in the determination that [50]:
(i) The Appellant arrived in the United Kingdom with her spouse and two children on 5th June 2003. They entered the country on visit visas and overstayed.
(ii) The family have continuously resided in this country since their arrival.
(iii) In February 2012 the Appellant, her husband and her children made an application for leave to remain on the basis that the Appellant's two sons had met the long residence rule for the children by having lived in the United Kingdom continuously for in excess of seven years. At the date of application, the children had been in the United Kingdom continuously for nearly nine years.
(iv) When the Respondent eventually considered the application the two sons were granted limited leave to remain.
(v) Neither of the Appellant's sons has formed an independent life or independent family unit. The Appellant's youngest son still resides with his parents and attends his local college. The Appellant's oldest son is away at university during term time. However, he returns to the family home during his vacation periods. Both children continue to be financially and emotionally dependent upon their parents even though they had both turned 18 by the date of hearing.
[52] Both children have been in the education system since the ages of 6 and 9 respectively. The oldest child is now at university. The youngest child is at college. Both are at important stages in their education. Throughout this period of their lives they have been shaped by United Kingdom culture, values, pastimes, living standards, language and the prevailing education system. Critical milestones in their educational development are now looming. The children have made good academic progress, that they have a circle of friends and they engage in extra curricular activities. Their integration in United Kingdom society and culture is complete. Their connections with their country of origin are minimal, extending barely beyond the facts that they are persons of Indian nationality and were born in that country and spent the first few years of their life there.
[53]: The children's best interests under private life would be served by remaining in the United Kingdom. The four dominant factors are:
(a) their length of residence in the United Kingdom,
(b) their full integration in the United Kingdom society,
(c) their ages, and
(d) their minimal ties with their country of origin.
[54]: Both children have, viz a viz their parents, the bonds of love, affection, respect and dependency which one would expect of any child in a stable, settled family. Their best interests would be best served by continuing to live in the United Kingdom, with their parents.
[56] Regarding whether it would be reasonable to expect them to leave the United Kingdom (EX.1(a)):
(i) the Appellant and her husband have for the most part been unlawfully present since their arrival in this country;
(ii) they have established private lives in the United Kingdom, but in circumstances where their stay was precarious because they had limited or no leave;
(iii) prior to their arrival both the Appellant and her husband spent the majority of their lives in India;
(iv) they are the parents of two children who have lived continuously in the United Kingdom for nine years at the date of application and who were both under 18 at the date of application.
[58] Removal would be hugely disruptive for the children especially. It would decimate the friendships, relationships and activities that form the core of their private lives. It would also obstruct their education which is at critical stages. For both children it would involve their transfer to a society whose culture, values, norms and language are largely alien to them. Although their parents are both Indians, the children's exposure to Indian culture is limited. On the other hand, it can be argued that given the children's existing educational achievements, intellectual ability and support of a stable family unit, they could, with time, adapt to life in India. There is no suggestion that their health would be detrimentally affected.
[60] Ultimately, the factors to which he gave determinative weight are the length of the children's residence in the United Kingdom, their deep emotion to British life; the critical stage in their educational development; their minimal connections with their country of origin; and the likelihood that they would both make a useful contribution to United Kingdom society. In all the circumstances, he did not find that it would be reasonable to expect the children to leave the United Kingdom.
Discussion
8. MA explains that if Parliament had wanted the child's best interests to dictate the outcome of the leave application it would have said so [47]. The court can have regard to the wider public interest including the immigration history [101].
9. am satisfied that, contrary to that which has been asserted by the Respondent, the Judge was fully aware that the parents have been here unlawfully and that they had misled the Entry Clearance Officer regarding the length of time they were coming here and had overstayed their visas. That is because the Judge specifically referred to it in paragraph [56]. He did not exclude that from his consideration. He simply did not need to repeat it. It is correct that the child's best interests do not determine the outcome of the application. The Judge however was fully aware of all the relevant factors and made a decision open to him on the evidence which he set out in detail.
10. I am not therefore satisfied that there was a material error of law.
Decision
11. The making of the decision of the First-tier Tribunal Judge did not involve the making of an error on a point of law.
12. I do not set aside the decision.
13. No anonymity direction is made.

Signed Date 23rd December 2016

Deputy Upper Tribunal Judge Saffer