Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/05621/2018
HU/05624/2018
HU/05627/2018
HU/05629/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20th December 2018
On 13th March 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS

Between

MR Rajeev Mohan de Silva Sandaradura
mrs Theilathalapititiyage Choleka Rukshani Gunasekara
master N M S
master N N S
(anonymity directions not made)
Appellants

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellants: Mr H Kannangara of Counsel instructed by Jade Law
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer

DECISION AND REASONS

1. These are linked appeals against the decisions of First-tier Tribunal Judge Taylor promulgated on 23 August 2018 dismissing the appeals on human rights grounds.

2. The Appellants are citizens of Sri Lanka. They are a family comprising father and mother and two minor children. The minor children were both born in the United Kingdom, on 4 September 2010 and 31 January 2016 respectively.

3. The adult Appellants' immigration histories are a matter of record and are set out in the papers, including in the Decision of the First-tier Tribunal at paragraph 4. I do not repeat the entirety of the histories here, but note that the Appellants have not had any formal leave to remain in the United Kingdom since mid-2013. Since that time they have pursued a number of successive unsuccessful applications and appeals, culminating in the most recent application made on human rights grounds on 1 July 2017. The application was refused on 11 December 2017; it is this decision against which the Appellants have appealed to the IAC.

4. The linked appeals were advanced before the First-tier Tribunal with primary reference to the circumstances of the Third Appellant. By the date of the hearing before the First-tier Tribunal the Third Appellant had passed his 7th birthday - and had accordingly been present in the United Kingdom for more than 7 years. It was essentially argued that such a factor, together with his own particular circumstances, meant that it would not be reasonable to expect the Third Appellant to leave the United Kingdom - and that in turn there would be no public interest in requiring his parents to leave, and necessarily it would also be appropriate pursuant to Article 8 for his younger sibling to remain in the United Kingdom.

5. The First-tier Tribunal Judge did not accept the primary submission in respect of the Third Appellant, and dismissed the appeals.

6. The Appellants sought permission to appeal to the Upper Tribunal, which was granted by First-tier Tribunal Judge Haria on 23 October 2018.

7. The Respondent filed a Rule 24 response on 28 November 2018. The response indicated that the Secretary of State did not oppose the Appellants' application, and "invite[d] the Tribunal to determine the appeal with a fresh oral (continuance) hearing to consider whether the [Appellants'] Article 8 cases is made out with reference to the best interests of the children".

8. Before me Mr Jarvis has in substance maintained the Respondent's position as stated in the Rue 24 response, and does not seek to defend the decision of the First-tier Tribunal Judge.

9. In the circumstances I say very little as to the details and substance of the Decision of the First-tier Tribunal Judge, except to acknowledge that I accept the joint position of the parties that the Judge did fall into material error of law in the evaluation of the issues in respect of the Third Appellant.

10. In particular it seems to me that there is a confusion on the face of the Decision as to the approach adopted by the Judge to an extent that it is unclear whether the correct approach was followed.

11. At paragraph 13 the Judge states:

"?it is generally the case that it is in a child's best interests to remain with their parents and unless special factors apply it will generally be reasonable to expect a child to leave the UK with their parents particularly if their parents have no right to remain in the UK."

12. At paragraph 20 further to citing - seemingly with approval - the relevant Home Office guidance and the case of MA (Pakistan), the Judge states:

"Strong reasons will be required in order to refuse a case where the outcome will be removal of a child with continuous UK residence of seven years or more".

13. It seems to me that there is a confusion as to whether the Judge was seeking to identify 'special factors' to justify an exception to the 'generalisation' expressed at paragraph 13 - which carries with it a notion of the onus being on the Appellants, or was seeking to identify 'strong reasons' that might justify a refusal - which carries with it a notion of the onus being on the Respondent. It is the apparently irreconcilable tension between these passages that informs the Respondent's concession.

14. The Respondent's concession having been made and accepted, the discussion before me focused primarily on the best way forward, and the extent to which the primary findings of fact of the First-tier Tribunal could or should be preserved.

15. The Respondent urged that notwithstanding his acknowledgement of error on the part of the First-tier Tribunal, adverse features of the Judge's evaluation of the facts might yet be preserved. It was otherwise the Respondent's position that the Appellants' case would need to be re-evaluated against the framework of KO (Nigeria) and the Respondent's new guidance pursuant to KO (Nigeria) published on 19 December 2018 (the day before the hearing).

16. Although a copy of the Respondent's new guidance was not before me at the time of the hearing, it was common ground between the representatives that some of its features directed focus in evaluating 'reasonableness' to a consideration of the circumstances to which the relevant child might be returning. Mr Kannangara disputed the appropriateness of such an approach, arguing that the focus should be limited to the extent of any disruption of the private and/or family life enjoyed in the United Kingdom which did not require consideration of the circumstances likely to be encountered in the destination country.

17. For present purposes it is not necessary for me to determine this issue. It is open to the Appellants to pursue such a submission in due course if they so wish.

18. More particularly, in respect of the findings of the First-tier Tribunal Mr Kannangara acknowledged that there were essentially two matters that the Appellants would wish to revisit as being potentially adverse: the economic opportunities for the principal Appellant were he to return to Sri Lanka, and the Judge's finding in respect of the Third Appellant's language abilities ("I don't accept that the third Appellant only speaks English in a household that is likely to speak Sinhalese" - paragraph 21).

19. The findings in neither of these matters have been directly impugned in the grounds of appeal to the Upper Tribunal; Mr Jarvis invites the Tribunal's consideration to whether in all of the circumstances such findings should be preserved.

20. I note that the Appellants have now filed some further evidence that relates to the circumstances of the Third Appellant. There are concerns that the Third Appellant may be suffering from autism spectrum disorder and/or Asperger's syndrome. Such concerns were aired before the First-tier Tribunal by reference the opinion of a SENCO at the Third Appellant's school, but the Judge noted that there was no specific diagnosis (paragraph 19). The Appellants have now filed a copy of a letter prepared by a consultant paediatrician based on a clinic date of 23 October 2018. Whilst this letter does not reach a diagnosis that the Third Appellant is suffering from ASD, it does note the problems as being "concerns around social communication and interaction skills", and indicates that a care plan is to be put in place. In my judgement the extent to which the consultant's letter takes matters further than the information from the SENCO ought properly to be part of a careful and nuanced reconsideration of the facts in the appeal informing the basis upon which the Appellants seek to find their submissions in respect of the 'reasonableness' of expecting the Third Appellant to leave the United Kingdom.

21. Further, in so far as the Respondent contends that an exploration of the circumstances on relocation to Sri Lanka is required, the Third Appellant's educational needs and any issues that may relate to his ability to adjust may be informed by consideration of the up-to-date evidence provided by the consultant. For example it may be necessary to revisit the issue of the level of the Third Appellant's comprehension of the Sinhala language and his ability to learn or improve - although I note that there is nothing immediately overt in the consultant paediatrician's report that suggests any developmental delay physically or in respect of intellectual or cognitive functioning.

22. In due course Mr Jarvis acknowledged that it would likely be impracticable to approach the issues in the appeal on the basis of 'adding' the new evidence to the findings based on previously available evidence. What is required is a fresh 'in the round' approach to all of the available evidence.

23. As regards the economic potential of the First Appellant, Mr Kannangara acknowledged that it was not realistic to advance a submission that the he would be unable to find paid employment in Sri Lanka at all. Rather the Appellants would seek to emphasise the likely income level and the concomitant affordability of education, it being their case that it is necessary - or highly desirable - that the Third Appellant be educated privately because it is only in such circumstances he would be able to be educated in the English language medium. It is said that the state schools in Sri Lanka teach through the medium of either Sinhalese or Tamil, and it is necessary to pay for private education if one wishes to be educated in the medium of English. This necessarily relates back to the assertion that the Third Appellant does not speak Sinhalese, or alternatively does not speak it to any adequate standard, and cannot reach an acceptable standard to continue his education in this medium. (The Appellants have also suggested that there would be difficulties accessing the state educational system in Sri Lanka because of a shortage of places and the claimed circumstance that persons returning from abroad are given low priority.)

24. Again, these matters are going to require some careful fact-finding. It may also be the case that the Respondent will wish to file some evidence as to economic and/or educational opportunities in Sri Lanka in the context of the matters identified in the new policy with regard to focus on the circumstances in the location of return.

25. In all of the circumstances it seems to me that the appropriate way forward is for this matter to go back to the First-tier Tribunal for the decisions in the appeals to be remade with all issues at large. I so conclude.

Notice of Decision

26. The decisions of the First-tier Tribunal in these linked appeals are vitiated for error of law. The decision are set aside.

27. The decisions in the appeals are to be remade before the First-tier Tribunal by any Judge other than First-tier Tribunal Judge Taylor.

28. No anonymity directions are sought or made.

Signed: Date: 10 March 2019

Deputy Upper Tribunal Judge I A Lewis