Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/05963/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 May 2019
On 16 May 2019

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

A A
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

(ANONYMITY DIRECTION MADE)
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves child welfare issues. I make clear that is not granted to protect the appellant's reputation following the finding that he used deception in an earlier application for leave to remain. However, it is in the interests of the children to continue the order. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent.

Representation:

For the appellant: Mr P. Richardson, instructed by Goldsmith Chambers
For the respondent: Mr E. Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant entered the UK on 24 October 2002 with entry clearance as a student which was valid until 24 January 2004. He was granted further leave to remain as a student on successive occasions although the exact dates are not made clear in the respondent's summary of his immigration history. The appellant says that he was granted leave to remain as a Tier 1 (Post Study Work) Migrant from 22 October 2010 to 22 October 2012. On 09 May 2013 the appellant was granted Indefinite Leave to Remain (ILR) in the UK on the grounds of 10 years' lawful residence.

2. On 13 October 2015 the respondent made a decision to revoke ILR because it was alleged that the appellant used deception in an application made on 22 February 2012 for leave to remain as a Tier 4 (General) Student. It was alleged that he submitted a TOEIC certificate issued by Educational Testing Services (ETS) which was said to have been obtained by fraud by using a proxy test taker. No copy of the decision appears to be included in the evidence, but it is reasonable to infer that it was taken under section 76(2)(a) of the Nationality, Immigration and Asylum Act 2002 ("the NIAA 2002"). The appellant did not have a right of appeal against the decision.

3. The appellant says he made further representations as to why he should be able to remain in the UK on 19 October 2015. On 14 December 2015 he applied for leave to remain on human rights grounds. The appellant's wife and four children also live in the UK. The appellant's wife was granted Discretionary Leave to Remain (DLR), which I am told was extended for a further 30 months on 16 March 2018. I am told that the oldest child has leave in line with his mother. The three youngest children (triplets) were born in the UK in 2010 and are British citizens.

4. The application was refused in decision dated 15 February 2016. The respondent alleged that the appellant used deception in an application for leave to remain made on 22 February 2012. He submitted a TOEIC certificate issued by ETS which was fraudulently obtained. ETS cancelled the certificate issued for a test purportedly taken at the Premier Language Training Centre on 21 March 2012 because there was evidence to show that it was obtained using a proxy test taker. There was evidence of widespread fraud at the test centre. The respondent was satisfied that the appellant's presence in the UK was not conducive to the public good and that his conduct made it undesirable to allow him to remain in the UK. The application was refused on 'Suitability' grounds. The appellant did not meet the private life requirements of paragraph 276ADE(1)(iii) or (vi) of the immigration rules. The respondent noted that the appellant had four children in the UK, most of whom were British citizens, but concluded that it was proportionate to expect them to remain with their mother in the UK.

5. First-tier Tribunal Judge Parkes dismissed the appeal in a decision promulgated 07 August 2017. The decision was set aside by the Upper Tribunal in a decision promulgated on 30 April 2018 and the case was remitted for a fresh hearing.

6. First-tier Tribunal Judge Bristow allowed the appeal in a decision promulgated on 24 September 2018. The judge considered the evidence relating to the allegation of deception. The judge considered the evidence produced by the respondent relating to the widespread fraud conducted at Premier Language Training Centre and weighed it against the appellant's evidence. He concluded that the respondent discharged the burden of proof to show that it was likely that the appellant used an English language certificate that was obtained by using a proxy test taker. However, in assessing whether the appellant's removal would be unlawful under section 6 of the Human Rights Act 1998 the judge concluded that the strength of the appellant's family life in the UK outweighed the public interest in maintaining an effective system of immigration control.

7. In a decision promulgated on 08 January 2019 Deputy Upper Tribunal Judge Manuell set aside the First-tier Tribunal decision relating to the assessment of Article 8 outside the rules because he considered that the judge failed to give adequate weight to the public interest considerations. He remade the decision and dismissed the appeal.

8. On application for permission to appeal to the Court of Appeal the Upper Tribunal set aside the decision of the Deputy Upper Tribunal Judge under rule 45 of The Tribunal Procedure (Upper Tribunal) Rules 2008 because the judge failed to make any clear findings relating to the best interests of the children or to demonstrate that he had given significant weight to their interests in assessing whether it was reasonable to expect them to leave the UK. In doing so the judge overlooked binding authorities which could have had a material effect on the decision.

9. The appeal now comes before the Upper Tribunal for remaking. The findings made by First-tier Tribunal Judge Bristow relating to deception in the earlier application remain undisturbed. The Upper Tribunal shall proceed to determine whether the appellant's removal in consequence of the decision would be unlawful under section 6 of the Human Rights Act 1998.

10. The factual background to the case is not in dispute. There is agreement that, at the date of the hearing, all four children are 'qualifying children' for the purpose of section 117B(6) of the NIAA 2002 and that the appellant has a genuine and subsisting parental relationship with the children for the purpose of section 117B(6)(a). The only issue for determination is whether it would be unreasonable to expect the children to leave the UK for the purpose of section 117B(6)(b).

Decision and reasons

Best interests of the children

11. In assessing the best interests of the children in this case, I have considered the principles outlined in ZH (Tanzania) v SSHD [2011] UKSC4, Zoumbas v SSHD [2013] UKSC 74 and EV (Philippines) and others v SSHD [2014] EWCA Civ 874. The best interests of children are a primary consideration although they are not the only consideration.

12. The respondent must have regard to the need to safeguard the welfare of children who are "in the United Kingdom". I take into account the statutory guidance "UKBA Every Child Matters: Change for Children" (November 2009), which gives further detail about the duties owed to children under section 55. In the guidance, the respondent acknowledges the importance of international human rights instruments including the UN Convention on the Rights of the Child (UNCRC). The guidance goes on to confirm: "The UK Border Agency must fulfil the requirements of these instruments in relation to children whilst exercising its functions as expressed in UK domestic legislation and policies." The UNCRC sets out rights including a child's right to survival and development, the right to know and be cared for by his or her parents, the right not to be separated from parents and the enjoyment of the highest attainable standards of living, health and education without discrimination. The UNCRC also recognises the common responsibility of both parents for the upbringing and development of a child.

13. The appellant's oldest child was born in Pakistan, but has been continuously resident in the UK for more than seven years and has spent most of his young life in the UK. Given that he was only a toddler when he arrived in the UK it is likely that this is the only life he remembers. The triplets are now eight years old and were born in the UK. I am told that they are British citizens following an application to register them after their father was granted ILR. Quite rightly, the respondent has chosen not to take any action to revoke their citizenship following the revocation of the appellant's ILR because they should not be blamed for the misconduct of their father.

14. The interests of the children have already been considered by the respondent and it was deemed appropriate to grant the mother and the oldest child DLR and to extend that leave after the appellant's ILR was revoked. All four children are likely to be well settled in education and will have close ties to the UK. Not just one, but three of the children are British citizens. The intrinsic importance of this status should not be played down. They are entitled to the advantages that this status brings.

15. It is accepted that the appellant plays a full parental role in the upbringing of the children. It is in their interests to be brought up by both parents. The decision letter does not suggest that it would be proportionate to expect the family to relocate to Pakistan, merely that it would be proportionate to expect the children to remain in the UK with their mother even though that would mean long term separation from their father. I conclude that the best interests of the children point clearly towards the children remaining in the UK with both parents in light of their nationality and long standing connections to this country.

Article 8(1) - family life

16. There is no dispute that the appellant has a family life with his wife and four children in the UK. In the decision letter, the respondent did not suggest that it would be reasonable or proportionate to expect the appellant's family to live with him in Pakistan. However, no clear concession was made that it would be unreasonable to expect the children to leave the UK. The decision stated that it would be proportionate to expect the children to remain in the UK with their mother albeit that this would mean long term separation from their father.

17. Although the exact reasons for the respondent deciding to grant the appellant's wife and oldest child DLR in 2014 are unclear, a reasonable inference can be drawn from the grant of DLR to the appellant's wife that it was not considered reasonable to expect the children to leave the UK. As such, the consequence of the appellant's removal is that he is likely to be separated from his wife and four children who are all entitled to remain in the UK.

18. I find that the removal of the appellant from the United Kingdom in consequence of the decision would interfere with his family and private life in a sufficiently grave way as to engage the operation of Article 8(1) of the European Convention.

Article 8(2) - proportionality

19. Section 6 of the Human Rights Act 1998 makes it unlawful for a public authority to act in a way that it incompatible with a Convention right. The duty is placed on the Secretary of State as well as courts and tribunals. The requirements of the immigration rules and the statutory provisions are said to reflect the respondent's position on Article 8 of the European Convention. The complicated provisions relating to private and family life and the separate provisions relating to deportation bear little resemblance to the approach taken by the European Court of Human Rights when conducting a balancing exercise under Article 8. The Strasbourg court conducts a holistic assessment of all the relevant circumstances of a case weighing the individual's circumstances against the public interest considerations without separating different aspects of a claim. I am bound to assess the appeal with reference to the immigration rules and relevant statutory provisions, but it must always be remembered that those provisions are intended to give effect to, and are said to be compatible with, the underlying principles enshrined in Article 8 of the European Convention: see NA (Pakistan) v SSHD [2016] WLR(D) 662 [38-39].

20. Part 5A of the NIAA 2002 applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's right to private or family life and as a result is unlawful under the Human Rights Act 1998. In considering the 'public interest question' a court or tribunal must have regard to the issues outlined in section 117B in non-deportation cases. The 'public interest question' means the question of whether interference with a person's right to respect for their private or family life is justified under Article 8(2) of the European Convention of Human Rights.

21. The appellant remained in the UK on a lawful basis until the decision was taken to revoke his ILR. The ETS allegation involved two serious matters. Firstly, ETS found that there was evidence to show that the appellant was likely to have obtained an English language certificate by using a proxy test taker. The use of a proxy test taker involved the use of fraud to obtain the certificate. The individual fraud formed part of a widespread organised fraud involving thousands of tests. It is clearly in the public interest to discourage such widespread fraud. Secondly, in relying on a fraudulent test certificate the appellant sought to deceive the respondent when he applied for further leave to remain as a student. The fact that he knowingly sought to use a fraudulent document to obtain leave to remain is a serious breach of immigration law.

22. The allegation that the appellant obtained an English language certificate by fraud, and then sought to use it to deceive the respondent in an application for further leave to remain, was sufficiently serious to justify refusal of leave to remain under the 'Suitability' requirements of the immigration rules. The effect of the decision to refuse leave to remain under the 'Suitability' requirements is that the appellant does not meet the requirements of the immigration rules. At the hearing, Mr Richardson accepted that the appellant did not meet the family or private life requirements of the immigration rules in any event. The respondent asserts that the rules strike a fair balance between the public interest and individual family and private life issues. Appropriate weight should be given to the respondent's policy as set out in the rules and relevant statutes.

23. Although a number of public interest considerations are listed in section 117B, section 117B(6) is the operative provision for the purpose of this appeal. The provision states that the public interest will not require the person's removal if the person has a genuine and subsisting relationship with a qualifying child and "it would not be reasonable to expect the child to leave the United Kingdom."

24. In KO (Nigeria) v SSHD [2018] UKSC 53 the Supreme Court found that the assessment of 'reasonableness' is directed to the position of the child without reference to the misconduct of his or her parents although what is reasonable must be considered in the 'real world' context in which the children find themselves. Mr Tufan argued that there was still scope to take into account the misconduct of a parent and relied on the facts considered in the case of NS at [51] of KO (Nigeria). However, this part of the decision did not establish any principles of law and only discussed the fact that the misconduct of the parent in that case led to the real world assessment that the parents of the children in that case would be required to leave the country because of their conduct.

25. The real world context in which these children find themselves is that they are not required to leave the UK because three of them are British citizens and the respondent has deemed it appropriate to grant DLR to the fourth alongside his mother. Their father remained in the UK on a lawful basis until the fraud concerning the ETS certificate was discovered. On that basis his ILR was revoked. In the decision letter, the respondent only go so far as to suggest that it would be proportionate for the children to remain in the UK without their father, but I have found that it is clearly not in their interests to be separated from their father on a long term basis. The best interests of the children are a primary consideration which must be given significant weight.

26. Since the last hearing, the Upper Tribunal published the decision in JG (s 117B(6): "reasonable to leave" UK) Turkey [2019] UKUT 72. The Upper Tribunal rejected the submission that section 117B(6) is only engaged if the children would, as a matter of fact, be expected to leave the UK. It found that the provision requires a court or tribunal to hypothesise that the child in question would leave the United Kingdom and must ask whether it would be reasonable to expect the child to do so.

27. In granting DLR to the appellant's wife and oldest son the respondent appears to have recognised that it would not be reasonable to expect the children to leave the UK even though their father's ILR was revoked. The real world situation that the children are facing is the possibility of their father's removal from the UK as a result of his own misconduct leaving them in a situation they would either have to face long term separation from their father or have to choose to give up the rights and advantages that they have established in the UK if they wanted to maintain the important relationship with their father.

28. For the reasons given above, I conclude that it would not be reasonable to expect three British children to leave the UK and all the benefits their citizenship brings to maintain their family life with their father. Nor would it be reasonable to expect the oldest child who has been continuously resident in the UK for more than seven years to break the ties that he has now established in the UK. It is quite clearly not in the best interests of such young children to remain in the UK and face long term separation from their father if he is removed without them. According to section 117B(6) the public interest in maintaining an effective system of immigration control does not justify the removal of the appellant in such circumstances. I conclude that the appellant's removal in consequence of the decision would amount to a disproportionate breach of his rights under Article 8 of the European Convention.

29. I conclude that removal in consequence of the decision to refuse the human rights claim is unlawful under section 6 of the Human Rights Act 1998

DECISION

The decision is remade and the appeal is ALLOWED on human rights grounds

Signed Date 16 May 2019
Upper Tribunal Judge Canavan