Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/05375/2015
HU/05378/2015
HU/05387/2015
HU/05408/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision Promulgated
On: 1st March 2017
On 29th March 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

NC
YRC
TRC
NRC
Appellant
And

Secretary of State for the Home Department
Respondent

For the Appellant: Mr Thoree, Thoree & Co Solicitors
For the Respondent: Mr Harrison, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The Appellants are all nationals of Mauritius. They are respectively a mother and her three children. They appeal with permission the decision of the First-tier Tribunal (Judge Herwald) to dismiss their linked human rights appeals.

Anonymity Order
2. There is no reason why the identity of the adult Appellants should be protected. The case does however turn on the presence in the United Kingdom of the two minor Appellants. I have had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders. I am concerned that identification of the adult Appellants could lead to identification of children involved and I therefore consider it appropriate to make an order in the following terms:
“Unless and until a tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies to, amongst others, both the Appellants and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings”

Background and Matters in Issue
3. This family came to the United Kingdom in December 2005. They all had leave to enter as the dependent family members of a student. That student was Mr RC; the husband of the First Appellant NC and the father of the remaining Appellants. In the years that followed RC and his family consistently complied with immigration control and held the appropriate leave at all times, save for a period of 29 days in November 2011 when RC allowed his leave to expire and failed to make his application for further leave within what was then the 28-day grace period. His explanation that the delay was caused by waiting for documents to arrive from Mauritius was apparently accepted by the Respondent since further leave was granted until April 2014.
4. Things started to go wrong in 2013 when the college that RC was then at lost its Tier 4 Sponsor licence. His leave as a student was curtailed to end on the 3rd August 2013 but before that date he and his family made applications for leave to remain on human rights grounds. Those applications were refused and the family appealed. In a determination promulgated on the 28th January 2014 Judge Simpson of the First-tier Tribunal allowed the linked appeals, having found the decision of the Respondent ‘not in accordance with the law’ for a failure to consider the best interests of the children. The Respondent took a new decision, but again refused to grant leave on human rights grounds. The linked appeals against this decision came before Judge Brookfield, who dismissed them in a determination promulgated on the 2nd December 2014. The attempts to appeal her decision failed so that on the 14th May 2015 the family became ‘appeal rights exhausted’, that is to say that they had reached the end of that particular legal road and no longer held the protective leave conferred by section 3C of the Immigration Act 1971.
5. On the 15th May 2015 RC and his family made new applications for leave to remain. He asserted a right to be granted Indefinite Leave to Remain on the basis of 10 years’ lawful residence. The remaining family members requested that leave be granted in line with RC but in the alternative made their own assertions as to the Rules and Article 8 ECHR. In particular, representations were made to the effect that the children had all accrued in excess of 7 years long residence and that leave should be granted with reference to paragraph 276ADE(1)(iv).
6. On the 1st September 2015 the Respondent refused to grant ILR to RC. The sole ground for refusal was the fact that in 2011 he had a gap in his lawful residence of 29 days. The Respondent rejected the human rights claims of the remaining family members, having concluded in respect of the children that their removal from the UK would not be unreasonable. The family all lodged appeals with the First-tier Tribunal.
7. RC died on the 14th March 2016.
8. The appeals of his family members came before Judge Herwald on the 15th June 2016. In a determination dated 28th June 2016 the Tribunal rejected any argument that the remaining family members could accrue any benefit from RC’s long residence case. There had been a gap in his leave of 29 days and Judge Herwald did not accept that the Respondent should have exercised her discretion in RC’s favour. As for the children it was accepted that at the date of the appeal they had each been in the UK for ten and half years. In the absence of any new evidence Judge Herwald was however satisfied that their removal to Mauritius was reasonable, having regard to the earlier decision to that effect by Judge Brookfield. He found that there are still family members in Mauritius who would be able to assist in reintegration, that the Appellants would be able to renew old friendships and make new ones, that there is a functioning education system there and that the family had all maintained cultural connections with their country of origin. Having referred to the public interest factors set out in s117B of the Nationality, Immigration and Asylum Act 2002 he dismissed the appeals.
9. The appeal before me today is brought inter alia on the grounds that the First-tier Tribunal erred in the following material respects:
(i) In failing to have any regard to the Respondent’s published policy on when it is ‘reasonable’ for qualifying children to leave the United Kingdom;
(ii) In failing to properly apply the guidance in Devaseelan [2002] UKIAT 00702. Whilst the Tribunal was obliged to treat the findings of Judge Brookfield as a starting point it was also obliged to take any change in circumstance into account. Two years and nine months had passed since Judge Brookfield had heard the appeals before her; that was plainly a long time in the private lives of these children and Judge Herwald erred in failing to take that passage of time, and the consequent strengthening of private life, into account;
(iii) The Tribunal repeatedly observed that there was no new evidence presented post-dating the decision of Judge Brookfield. In doing so the Tribunal failed to recognise that a) there was new documentary evidence and b) the reason for the absence of oral evidence was that NC and her children were mourning the death of RC who had died only a matter of weeks before the hearing.

Error of Law
10. The starting point was the decision of Judge Brookfield, made following a hearing in October 2014. As Judge Herwald notes, Judge Brookfield specifically addressed the question of the children’s ‘best interests’ as well as Article 8 ECHR. In doing so she considered matters such as their linguistic ability, the likelihood that they would be able to attend school in Mauritius and make friends there. She considered it likely that they would not suffer any significant socio-economic deprivation upon return since their parents would be able to work. Alternatively, other family members in that country could assist them. Having had regard to those facts she applied the guidance in EV (Philippines) and Ors [2014] EWCA Civ 874 to find the children’s removal to be proportionate, and dismissed the appeals. What she did not do was give consideration to whether any or all of the children qualified for leave to remain under paragraph 276ADE(1)(iv). Although she considered the question of reasonableness through the prism of the parents’ cases (in the context of s117B(6) Nationality Immigration and Asylum Act 2002) she did not directly consider the private lives of any of the child Appellants.
11. When the case came before Judge Herwald the child Appellants expressly relied on their private lives, the Rule and the applicable guidance. The Rule itself reads (with relevant parts highlighted) as follows:
276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.
12. The published statements which accompanied the introduction of the Rule explain that it is intended by the Secretary of State to reflect where she considers that the balance should be struck in ‘private life’ cases. It is apparent from the structure of the Rule that the public interest is reflected at (i), where decision-makers are obliged to take into account the identified ‘suitability’ criteria set out in Appendix FM, and to some extent at (ii) which introduces a procedural requirement to ensure consistency in approach and decision-making. The matters set out, in the alternative at (iii) to (vi), set out benchmark criteria that an applicant must reach in order to establish a case. For example, the adult who can establish 20 years long residence has shown that his private life is of such weight that he is permitted to remain in the UK, provided that he meets the public interest requirements at (i) and (ii).
13. There are two limbs to sub-paragraph (iv). Child applicants must first show a continuous period of residence of at least seven years, and they must further establish that it would not be reasonable to expect them to leave the UK. The genesis of this Rule was the old concession by the Secretary of State known as DP5/96. That policy, and those which followed, created a general, but rebuttable, presumption that enforcement action would “not normally” proceed in cases where a child was born here and had lived continuously to the age of 7 or over, or where, having come to the United Kingdom at an early age, 7 years or more of continuous residence had been accumulated1. Although there have been shifts and amendments to this policy over the years, the government has consistently maintained that a residence of at least 7 years’ duration is a significant benchmark. As the policy statement2 which accompanied the introduction of paragraph 276ADE (1)(iv) puts it: “a period of 7 continuous years spent in the UK as a child will generally establish a sufficient level of integration for family and private life to exist such that removal would normally not be in the best interests of the child” [my emphasis]. See for instance these remarks by Lord Wallace of Tankerness made in the debate on the introduction of the 2014 Act:
“we have acknowledged that if a child has reached the age of seven, he or she will have moved beyond simply having his or her needs met by the parents. The child will be part of the education system and may be developing social networks and connections beyond the parents and home. However, a child who has not spent seven years in the United Kingdom either will be relatively young and able to adapt, or if they are older, will be likely to have spent their earlier years in their country of origin or another country. When considering the best interests of the child, the fact of citizenship is important but so is the fact that the child has spent a large part of his or her childhood in the United Kingdom”3.
14. The current policy statement reaffirms that these sentiments remain the starting point decision makers. The Immigration Directorate Instruction presently in force, ‘Family Migration: Appendix FM Section 1.0b Family Life (as a Partner or Parent) and Private Life: 10-Year Routes’ (“the IDI”), reads as follows:
11.2.4. Would it be unreasonable to expect a non-British Citizen child to leave the UK?
The requirement that a non-British Citizen child has lived in the UK for a continuous period of at least the 7 years immediately preceding the date of application, recognises that over time children start to put down roots and integrate into life in the UK, to the extent that being required to leave the UK may be unreasonable. The longer the child has resided in the UK, the more the balance will begin to swing in terms of it being unreasonable to expect the child to leave the UK, and strong reasons will be required in order to refuse a case with continuous UK residence of more than 7 years.
The decision maker must consider whether, in the specific circumstances of the case, it would be reasonable to expect the child to live in another country.
The decision maker must consider the facts relating to each child in the UK in the family individually, and also consider all the facts relating to the family as a whole. The decision maker should also engage with any specific issues explicitly raised by the family, by each child or on behalf of each child.
(emphasis added)
15. This guidance recognises that after a period of seven years’ residence a child will have forged strong links with the UK to the extent that he or she will have an established private life outside of the immediate embrace of his parents and siblings. It is that private life which should be the starting point of consideration under this Rule. The relationships and understanding of life that a child develops as he grows older are matters which in themselves attract weight. The fact that the child might be able to adapt to life elsewhere is a relevant factor but it cannot be determinative, since exclusive focus on that question would obscure the fact that for such a child, his private life in the UK is everything he knows. It will normally be contrary to the child’s best interests to interfere with that private life. That is the starting point, and the task of the Tribunal is to then look to other factors to decide whether, on the particular facts of this case, these displace or outweigh the presumption in favour of granting leave. Those factors are wide-ranging and varied. The IDI gives several examples including, for instance, the child’s health, whether his parents have leave, the extent of family connections to the country of proposed return; criminality on the part of the parent could justify a refusal of leave. In MA (Pakistan) [2016] EWCA Civ 705 Elias LJ (albeit reluctantly) accepted that the evaluative exercise must also encompass matter pertaining to the family as a whole, including the factors at s117B(1)-(5) as they relate to the parents. The assessment of what is “reasonable” will call for the Tribunal to weigh all of these matters into the balance and to see whether they constitute “strong reasons” - the language of the current IDI – to proceed with removal notwithstanding the established Article 8 rights of the child in the UK. This policy, and those which preceded it, must form the basis of any consideration of this Rule. As Elias LJ puts it at paragraph 46 of MA:
“Even on the approach of the Secretary of State, 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 (para. 11.2.4). These instructions were not in force when the cases now subject to appeal were determined, but in my view they merely confirm what is implicit in adopting a policy of this nature. 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 UK with his parents as part of a family unit, and that must rank as a primary consideration in the proportionality assessment”.
16. Before me Mr Harrison was compelled to concede that neither Judge Brookfield nor Judge Herwald took this approach. Neither determination pauses to consider what long residence of over seven years meant to the children in question. Little regard if any is paid to the fact that they have, to use the language of the IDI, “put down roots” and integrated into British life. Instead the focus is on the ability of the children to adapt to life in Mauritius. Whilst plainly a pertinent consideration, those matters could not in themselves be determinative. The starting point should have been the long residence, the established private life and what that meant to these children. The next question was whether there were countervailing factors of such weight as to justify interference with those private lives. That is the approach endorsed by the Secretary of State in her guidance, by the Upper Tribunal in PD and Others (Article 8 – conjoined family claims) [2016] UKUT 108 and by the Court of Appeal in MA (Pakistan). It was not the approach taken by the First-tier Tribunal in these appeals. I set the decision aside for that reason.
17. It follows that I need not address the evidential complaints made by Mr Thoree in any great detail. His point is a simple one. Even if Judge Brookfield was right to have dismissed the appeals in 2014, by the time that the appeals came before Judge Herwald time had moved on. The children had at that point all been living in the UK for some ten and half years. Almost three years had passed since their appeals before Judge Brookfield. They had in that time all progressed in their education, friendships and integration. Their situation had changed immeasurably in the loss of their father. Mr Thoree submits that the determination does not do enough to recognise those matters. He submits that in fact the Tribunal simply adopts the findings made in the earlier determination. I would have to agree. The reasoning is set out at paragraph 23(a)-(r). the sub-paragraphs relating to the children are found at (n)-(q), and each of these recites the findings of Judge Brookfield. There are no findings beyond these. I am satisfied that this too was an error. In applying a rule where the strength of private life is measured primarily in terms of length of residence any extension in the time spent in the UK was an obviously relevant factor. Nor is reference made to any of the documentary evidence presented on behalf of the Appellants. This ground too is made out.

The Re-Made Decision
18. At the date of the appeal before me the Second Appellant YRC is aged 18 years, three months and 10 days. She arrived in the UK on the 10th December 2005 shortly after her seventh birthday. Sub-paragraph (v) of paragraph 276ADE(1) provides that leave will be granted where the applicant is:
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
It is not in issue that YRC is over 18, that she has spent over half of her life living continuously in this country and that she has never been to prison. Mr Harrison confirmed that none of the suitability criteria referenced at sub-paragraph (i) of the Rule weigh against her. She has made an application in accordance with (ii). Her appeal is therefore allowed.
19. The Third Appellant TRC arrived in the UK when he was 3 years old. He completed his primary education at Bodnant Infant School. He is now 14 years old, and is in year 9 of Prestatyn High School where his group tutor Miss K Garside describes him as a “delight”. He is commended for his work in the “extremely rewarding and prestigious role” of “reading buddy”, in helping other children in the school to read. His head of learning for Year 9 describes him as a “delightful and respectful young man” and his class teacher Miss RA Williams comments on his “excellent attitude” and “exemplary” behaviour. Remarks in a similar vein are made by all of 12 of the teachers who contribute to the report I have been shown. I accept, in light of this report, his mother’s evidence (in her statement dated 8th June 2006) that her son is fully established in his life in the UK, where he has made his own ties. I accept and find as fact that TRC has established a private life of substantial value in the UK. He has put down roots here. Whilst I endorse the findings of the First-tier Tribunal in respect of the potential for TRC to embark on building a new private life in Mauritius, I am satisfied that it would be contrary to his best interests to disrupt the stability that he currently enjoys in the UK. I must look to see whether, in those circumstances, there are strong reasons not to regularise TRC’s immigration status in the UK.
20. Although TRC was only three years old when he arrived in the UK, and remains a minor today, he enjoys no statutory exemption to the application of the public interest factors set out at sub-sections (1)-(5) of 117B of the 2002 Act: Miah (s117B NIAA 2002 – children) [2016] UKUT 131. The provisions themselves are not however an exhaustive list of considerations4 and so the fact of TRC’s minority must also be weighed in the balance. In MA (Pakistan) the Court of Appeal appeared to proceed on the assumption that it would be the conduct of the parent which would here fall under the spotlight, although it must be said that this was in the context of s117B(6)(b) rather than the rule itself. The unfortunate corollary of that is that in the context of the rule, paragraph 276ADE(1)(iv), a child’s private life claim could potentially be defeated by the conduct of another individual, namely his parent. As awkward as that seems that is for the moment at least, the legal position. I therefore proceed on the basis that the ‘public interest’ considerations should be applied to the family as a whole.
21. It is agreed that TRC held valid leave when he entered the UK in 2005 and that apart from a period of 29 days in 2011 he continued to hold valid leave until the 14th May 2015. An application to regularise his position was made the following day. The same is true of this mother. I recognise that the maintenance of immigration control is in the public interest. I find that this is a family who have held leave to remain for the vast majority of the time that they have spent in the UK. They have consistently maintained contact with the immigration authorities and have done their best to comply with the rules.
22. It is in the public interest that persons who seek to settle in the UK can speak English. It aids integration and lessens dependence on the state. All members of this family speak fluent English. This is therefore a neutral factor.
23. It is in the public interest that persons who seek to settle in the UK are financially independent. This aids integration and lessens dependence on the state. This family have, in the ten and a half years that they have spent here, never had any recourse to benefits. The children have of course attended school, as they were required to do by law, and were entitled to by operation of their valid leave as Points Based System migrants. The family were initially maintained by RC, who worked until very shortly before his death. They have thereafter been supported by other family members. To that extent they are not, on present authority, to be considered ‘financially independent”. That is a matter that I attach some weight to. TRC’s mother NC asserts, and I have no reason to doubt, that if she were legally entitled to work she would do so.
24. The statute provides that I must attach ‘little weight’ to TRC’s private life because it was established when his status in the UK was ‘precarious’. As discussed above, this would appear to fly in the face of the Respondent’s published guidance about the private lives of children and a panoply of ministerial statements to contrary effect. This apparent contradiction is resolved by recognising that the term “little weight” does not mandate any particular outcome. In Rhuppiah [2016] EWCA Civ 803 Sales LJ put it like this [at 53]:
"Although a Court or Tribunal should have regard to the consideration that little weight should be given to private life established in such circumstances, it is possible without violence to the language to say that such generalised normative guidance may be overridden in an exceptional case by particularly strong features of the private life in question, where it is not appropriate in Article 8 terms to attach only little weight to private life. That is to say for a case falling within section 117B(5) little weight should be given to private life established in the circumstances specified, but that approach may be overridden where the private life in question has a special and compelling character. Such an interpretation is also necessary to prevent section 117B(5) being applied in a manner which would produce results in some cases which would be incompatible with Article 8, ie is necessary to give proper effect to Parliament's intention in Part 5A; and a similar interpretation of section 117B(4) is required, for the same reasons."
25. I am satisfied, having regard to the jurisprudence and policy statements on long residence during minority that TRCs age is a special and compelling character: see Miah and the further discussion by the President in Kaur (children's best interests / public interest interface) [2017] UKUT 00014 (IAC).
26. Mr Harrison confirmed that as far as the Respondent is aware there are no additional public interest factors to be weighed in the balance. There is for instance no criminality involved.
27. TRC has spent over ten and half of his thirteen years in this country. He is integrated and settled in all but name. I do not doubt that he would be able to attend school in Mauritius, make friends there and develop relationships with family members who hitherto have been strangers. I am not however satisfied that these amount, when weighed with the public interest considerations relied upon by the Secretary of State, to ‘strong reasons’ to deny a grant of leave in accordance with paragraph 276ADE(1)(iv) of the Immigration Rules. The appeal of TRC is allowed.
28. The fourth Appellant NRC is now eleven years and nine months old. He has been living in this country since he was 6 months old. Like his brother and sister before him he attended Bodnant Community School, where in his last report he was described by his teachers as polite, well-mannered, bright and cheerful. His behaviour is said by the Headteacher to be “impeccable”. If evidence were required of NRC’s integration into Welsh society, it is to be found in these school reports, which set out, inter alia, what a “fabulous King” he played in the Christmas play and what a role model he is for other students. He is now in Year 7 at secondary school and is, I am told, very happy there.
29. There is no utility in repeating for NRC the considerations set out above in respect of his brother. There is no material difference in his case. I find that NRC has discharged the burden of proof and shown that he qualifies for leave to remain on private life grounds with reference to paragraph 276ADE(1)(iv).
30. That leaves NC, the First Appellant. Mr Harrison agreed, applying the approach in MA (Pakistan) that if her children succeed under the rule then her removal cannot be said to be in the public interest: s117B(6) NIAA 2002 applied. She too must succeed in her appeal.

Decision
31. The determination of the First-tier Tribunal contains an error of law such that it must be set aside.
32. The re-made decisions are as follows:
“The appeal of the First Appellant is allowed on human rights grounds ‘outside of the Rules’.
The appeal of the Second Appellant is allowed on human rights grounds with reference to paragraph 276ADE(1)(vi).
The appeals of the Third and Fourth Appellants are allowed on human rights grounds with reference to paragraph 276ADE(1)(iv)”
33. There is an order for anonymity.

Upper Tribunal Judge Bruce
2nd March 2017