The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/03624/2018


Heard at Field House
Decision & Reasons Promulgated
On 12th December 2018
On 10th January 2019




Gladys [C]
Ramil [C]
[J C]


For the Appellants: Mr A Slatter, Counsel
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

The Appellants are citizens of the Philippines and are a nuclear family. Their appeals were dismissed by First-tier Tribunal Judge Thomas in a decision promulgated on 22nd August 2018. The judge noted that the third Appellant, [JC], was a qualifying child because he had lived here for seven years continuously (paragraph 13). The judge found that on the totality of the evidence it was in his best interests to remain in the care of both his parents (paragraph 14). The judge found that it was reasonable to expect the child to leave the UK with his parents (paragraph 18). The judge found that the countervailing features in the case did not amount to compelling or exceptional circumstances to outweigh the public interest in maintaining effective immigration control. She therefore went on to dismiss the appeal.
Grounds of application were lodged. The first ground was that the judge had erred in law by failing to properly assess the reasonableness of the child returning to the Philippines. The judge had failed to properly consider and apply the authority of MA (Pakistan) [2016] EWCA Civ 705. Significant weight had to be given to the fact that the child had been here for seven years. There had to be "strong reasons" for refusing leave. In these cases, there must be a very strong expectation that the child's best interests would be to remain here, in particular with reference to paragraph 49. The fact that the child had been in the UK for seven years would need to be given significant weight in the proportionality exercise for two related reasons: firstly, because of its relevance to determining the nature and strength of the child's best interests and secondly, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary. Further grounds are set out with reference to relevant case law.
Permission to appeal was granted by First-tier Tribunal Judge Smith in a decision dated 18th October 2018. It was said that there was an arguable error of law in that the judge had arguably failed to identify the required "powerful reasons" held by the Court of Appeal to be required to displace the "starting point" that leave should be granted in a 7-year-old child case. Before me, Mr Slatter, Counsel, appeared for the Appellants and relied on the grounds of application. Given that the judge had failed to follow MA (Pakistan), the judge had fallen into a material error in law. There were no proper factual findings regarding the best interest of the child in relation to his presence in this country and as such I was asked to find an error in law, set the decision aside and remit it to the First-tier Tribunal.
For the Home Office, Mr Walker said he could not resist the arguments put forward by Counsel.
I reserved my decision.
In my view, the grounds of application are made out. The judge mentioned MA (Pakistan) but did not apply its terms and no more need be said about that, given the proper concession of the Home Office that the decision is not safe and it therefore must be set aside. As Counsel indicated, further fact-finding appears to be necessary in this case and the matter will have to be heard again by the First-tier Tribunal.
The decision of the First-tier Tribunal is therefore set aside in its entirety. No findings of the First-tier Tribunal are to stand. Under Section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 the nature or extent of the judicial fact-finding necessary for the decision to be remade is such that it is appropriate to remit the case to the First-tier Tribunal.

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside the decision.

I remit the appeal to the First-tier Tribunal.

Signed JG Macdonald Date 4th January 2019

Deputy Upper Tribunal Judge J G Macdonald