Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/06908/2015
HU/06916/2015
HU/06922/2015
HU/06924/2015

THE IMMIGRATION ACTS

Heard at: Stoke
Decision & Reasons Promulgated
On: 11 January 2017
On: 12 January 2017

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

KS
RK
TK
DSM
(ANONYMITY DIRECTION MADE)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr Pipe (Counsel)
For the Respondent: Ms Abone (Senior Home Office Presenting Officer)

DECISION AND REASONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original first Appellant in this determination identified as KS.
1. I have made an anonymity order because this decision refers to the circumstances of a minor child, the fourth appellant. The first and second appellants are the mother and father of the third and fourth appellants. The third appellant, T, was born in 1998 and is now 18. The fourth appellant, D, was born in 2003 and is nearly 14. They live together as a family unit and the children remain dependent upon their parents.
2. The appellants have appealed against a decision of the First-tier Tribunal dated 12 August 2016 in which it dismissed an appeal against the decision of the respondent dated 11 September 2015 refusing leave on Article 8 grounds.
3. The appellants have been granted permission to appeal against that decision by First-tier Tribunal Judge Hodgkinson on 15 November 2016.
First-tier Tribunal decision
4. The First-tier Tribunal accepted the family relationships and immigration history of the appellants. In summary the first and second appellants came to the UK in 2003 as visitors, during which time their children remained in India with relatives. The second appellant returned to India but arrived in the UK with the children in March 2008, and they have all remained since that time. All the appellants are overstayers.
5. The First-tier Tribunal considered what it described as a helpful report of an independent social worker ('ISW'), Ms Diane Harris dated 5 July 2016 and accepted it was in the interests of the children to remain in "their present settled life" [23]. The First-tier Tribunal accepted that the children were qualifying children as they had resided in the UK for over seven years. The First-tier Tribunal also correctly identified the main issue to resolve as being whether or not it is reasonable to expect the children to leave the UK. After conducting an analysis of various relevant factors the First-tier Tribunal concluded that it would be reasonable and for this reason dismissed the appeal under the Immigration Rules and Article 8.
Hearing
6. Mrs Abone agreed with the preliminary view I outlined that the First-tier Tribunal's decision contains errors of law. She accepted that the First-tier Tribunal failed to direct itself in accordance with the relevant authorities that significant weight must be attached to residence of over seven years by children and the respondent's policy to the effect that strong reasons will be required to refuse such a case.
7. Mrs Abone also agreed that the First-tier Tribunal's approach to the ISW report was unlawful for the reasons set out in Mr Pipe's grounds of appeal. In the premises, both representatives agreed that the decision should be remade by me and that I should make my own findings regarding the ISW report.
8. Both representatives agreed that there was no need to hear further evidence. Ms Abode asked me to find that the children could reasonably be expected to return to India. No attempt was made to outline any strong reasons why the children should be expected to return and no attempt was made to resolve this with the respondent's own policy.
9. Mr Pipe relied upon his skeleton argument. He accepted that although at the date of the application T and D were qualifying children, at the date of hearing and in remaking the decision I am restricted to considering human rights and not the immigration rules. This is because of the changes in the appeal framework from 4 April 2015. Mrs Abode agreed with this approach. Mr Pipe took me to the relevant evidence and asked me to find that removal of D would not be reasonable. It followed from this that to remove T and her parents would be a disproportionate breach of Article 8 given D's close relationship with and dependence upon them.
Error of law discussion
Approach to length of residence
10. The correct approach to the reasonableness test in 276ADE and section 117B(6) of the Nationality, Immigration and Asylum Act 2002 has been considered recently in MA (Pakistan) V SSHD [2016] EWCA Civ 705 (7 July 2016). The Court of Appeal found that the only significance of section 117B(6) is that where the child has been in the UK for seven years, this is a factor of some weight leaning in favour of leave to remain being granted [45]. Elias LJ said this:
"46. 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.
?
49?However, the fact that the child has been in the UK for seven years would need to be given significant weight in the proportionality exercise for two related reasons: first, because of its relevance to determining the nature and strength of the child's best interests; and second, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary."
11. When the First-tier Tribunal decision is read as a whole, there is no clear indication that it attached significant weight to the children's length of residence when considering the reasonableness test or carrying out the proportionality exercise. The First-tier Tribunal was clearly mindful of their length of residence but that is different to attaching significant weight to it. Indeed, the First-tier Tribunal failed to take into account the full ambit of the relevant respondent's policy in the Immigration Directorate instructions ('IDI') and failed to acknowledge that once the seven years' residence requirement is satisfied, there need to be "strong reasons" for refusing leave - see the limited reference to the IDI at [37]. In adopting the approach it did the First-tier Tribunal erred in law and the decision needs to be remade.
ISW
12. I accept that the First-tier Tribunal has irrationally described a return trip to India in 2016 as a "mirror image" of the earlier trip to the UK in 2008. As acknowledged by the First-tier Tribunal T was a little girl when she arrived and is now a young woman. Nine years have elapsed and the children would be returning in very different circumstances and as very different personalities.
Remaking the decision
Approach to evidence
13. Both representatives agreed that I should consider all the evidence for myself in making the relevant Article 8 assessment. In any event very little evidence was disputed by the respondent. Ms Abone suggested that the ISW probably overstated the impact of a return to India upon the children.
Best interests
14. I begin the assessment by evaluating the primary consideration of D's best interests. I appreciate that T is now an adult and therefore focus my attention on D. I agree with the First-tier Tribunal at [23] that at the time of its decision, the children's best interests lay in remaining in the UK. To summarise, both children came to the UK at a young age (9 and 4) and have spent the most formative part of their lives in the UK. Throughout this nine-year period their lives have been shaped by UK culture, values, pastimes, living standards, language and the prevailing education system. Critical milestones in both their personal and educational development have been passed and were looming at the time. They are both completely integrated into UK society and culture. This has been cogently set out in the ISW report. The ISW met with all four appellants and also spoke to the T's head of A-Levels at college and D's head of year at his school. This evidence provides a detailed picture of two young people completely immersed in UK society.
15. I note that the First-tier Tribunal regarded the ISW report to be helpful (para 19). I agree. It helpfully sets out a summary of the relevant evidence to be considered as part of the best interests assessment and I accept it. The First-tier Tribunal was concerned that when setting out her opinion from page 18 the ISW probably overstated the position. I agree that there is some force in that concern. There was no medical evidence to support the conclusion that the children would suffer significant risks to their mental health. It is unlikely that the risk to D's mental health will be significant but I accept his emotional well-being is likely to be adversely impacted for the reasons set out by the ISW. This includes his strong wishes and feelings. It is important to note that D's head of year considered "it would be a great detriment to D's development both emotionally and educationally" to return to India and that he was thriving at school.
16. I must assess D's best interests at the date of hearing. These remain the same as the position outlined in the ISW report save that the additional time spent in the UK at a formative stage has meant that it is now even clearer that his best interests lie in remaining in the UK. He is now in year 9 and is doing very well at school.
17. I conclude that the best interests of D, viewed through the lens of Article 8 private life, would be overwhelmingly served by remaining in the UK. There are five dominant factors: (i) nine years length of residence in the UK (ii) full integration in UK society, (iii) age and formative years in the UK, (iv) D has minimum personal ties with India - whilst I accept he clearly has links through his parents and ethnicity, and has a clear understanding of Indian culture, he was only four when he left and I accept he sees himself as thoroughly British with an identity based on British multi-cultural society, (5) D will find it very difficult to return to India at this particular stage of his education and childhood. He is a quiet child with a small but close and long-standing friendship group, and is likely to find it particularly difficult to get accustomed to everything new, even with the assistance of loving and supportive parents.
Proportionality
18. I am mindful that the best interests assessment is not determinative of the question posed section 117B(6) of the 2002 Act, namely whether it would be reasonable to expect D to leave the UK. As Elias LJ noted in MA (Pakistan) at [47] even where the child's best interests are to stay, it may still be not unreasonable to require the child to leave. That will depend upon a careful analysis of the nature and extent of the links in the UK and India, as well as any other relevant wider considerations - see [45] of MA (Pakistan), EV (Philippines) v SSHD at [34-37] and PD and Others (Article 8 - conjoined family claims) Sri Lanka [2016] UKUT 108 (IAC).
19. This question cannot be answered without considering the parents' appeals, to which I now turn. Their Article 8 claims cannot succeed under the Rules. They do not come remotely close to doing so. They can succeed only outwith the Rules. The dismissal of the parents' appeals would interfere with their rights to respect for their private lives. Since the impugned decisions are in accordance with the law and are in furtherance of a legitimate aim, namely the maintenance of immigration control, the next question to be addressed is whether they are proportionate. It is important to acknowledge that they are longstanding unlawful overstayers. Although they are law abiding, they have spent most of their lives in their country of origin, India and significant weight must be attached to their flagrant breach of immigration controls in the UK.
20. Proportionality is the "public interest question" within the meaning of Part 5A of the 2002 Act. By section 117A(2) I am obliged to have regard to the considerations listed in section 117B. I consider that section 117B applies to these appeals in the following way:
(a) The public interest in the maintenance of effective immigration controls is engaged.
(b) There is no infringement of the "English speaking" public interest as all the appellants speak English.
(c) The economic interest must be engaged because T and P have been, and will continue to be, educated at public expense and if all four appellants remain in the UK they will have the capacity to access other publicly funded services and benefits. Although the first appellant has worked repairing televisions and is probably hard-working, such work in the UK has been illegal because of his immigration status.
(d) The private lives established by the parents during the entirety of their time in the UK qualifies for the attribution of little weight only.
21. This brings me back to section 117B(6), which provides:
"In the case of a person who is not liable to deportation, the public interest does not require the person's removal where -
(a) the person has a genuine and subsisting parental relationship with a qualifying child; and
(b) it would not be reasonable to expect the child to leave the United Kingdom."
22. It is not disputed that D is a "qualifying child" by virtue of his length of residence in the UK and he has a genuine and subsisting parental relationships with the first and second appellants, and is close to his sister. In my consideration of D's best interests above I have already highlighted the salient facts and factors. I must balance these with the outcome of the forecast, which must necessarily be undertaken, based on the premise of the entire family returning to India - see PD (supra). On the one hand, this would be hugely disruptive for D and would decimate the friendships, relationships and activities that form the core of his private life. It would also obstruct his education, though I accept not irredeemably so. Importantly it would involve his transfer to a society whose culture, values, norms and language are unfamiliar to him. Emotionally, it would undoubtedly be stressful and damaging given D's personality and outlook. Furthermore, this fundamental transformation of his life and lifestyle would occur at an age and stage of critical importance to his development.
23. On the other hand, taking into account D's age and the support of a stable family unit, he would, foreseeably, adapt over time. There is no suggestion that his health would be detrimentally affected other than the ISW's assessment that there will be a significant risk to his mental health. I do not accept that assessment because it is unsupported by cogent medical evidence.
24. The test to be applied is that of reasonableness. The application of the reasonableness test involves a balance of all material facts and considerations - see MA (Pakistan) (supra). The application of this test will invariably be intensely fact sensitive, see EB (Kosovo) v SSHD [2008] UKHL 41, at [7] - [12], per Lord Bingham. I attach significant weight to D's length of residence in the UK (some 9 years). Other factors of particular strength are: his time in the UK spanned three quarters of his life; his deep immersion in all aspects of life in this country; the critical stage of his personal and educational development which has been reached; his minimal personal connections with his country of origin; and the likelihood that he will make a useful contribution to UK society.
25. Furthermore, I must weigh D's best interests which have the status of a primary consideration. The main countervailing factor is that the first and second appellants have no legal right to remain in the UK. They have flagrantly and over a long period of time flouted immigration control as unlawful over-stayers. This is a factor of undeniable weight. However, it has been frequently stated that a child's best interests should not be compromised on account of the misdemeanours of its parents - see Baroness Hale in ZH (Tanzania) v SSHD [2011] UKSC 4, at [20]-[21] and [35], and MA (Pakistan) at [52 and 53] and per Elias LJ at [102]:
"In my judgment, the observation of the judge to the effect that people who come on a temporary basis can be expected to leave cannot be true of the child. The purpose underlying the seven year rule is that this kind of reasoning ought not to be adopted in their case. They are not to be blamed for the fact that their parents overstayed illegally, and the starting point is that their status should be legitimized unless there is good reason not to do so. I accept that the position might have been otherwise without the seven years' residence, but that is a factor which must weigh heavily in this case. The fact that the parents are overstayers and have no right to remain in their own right can thereafter be weighed in the proportionality balance against allowing the child to remain, but that is after a recognition that the child's seven years of residence is a significant factor pointing the other way.
26. I consider that there are strong factors supporting the conclusion that it would not be reasonable to expect D to leave the UK. There are no strong reasons that bear upon D pointing in the other direction. I have taken into account the fact that his parents are overstayers and have weighed that in the proportionality balance but in my judgment this does not outweigh the preponderance of factors in support of D remaining in the UK, as outlined above. Accordingly, his appeal succeeds under Article 8.
Parents
27. Having thus concluded, the effect of section 117B(6) of the 2002 Act is that the public interest does not require the removal of either parent. The effect of dismissing the two parents' appeals would be to stultify the decision that T qualifies for leave - see PD (supra). In short it would be unreasonable and disproportionate (notwithstanding their immigration history) to remove the parents because this would inevitably mean that T would have to leave with them. The first and second appellants' appeals therefore succeed under Article 8.
T
28. I now turn to the remaining family member T. She is no longer a child as she is 18 but she is entirely dependent upon her parents. She lives as part of a close family unit with her brother and parents. She is at a pivotal stage of her education having completed the first year of A levels and is in the process of completing her final year. This marks a critical milestone in her educational and personal development. She has ambitions to become a lawyer. Her head of year has been very supportive of these ambitions and she is doing well at college. Like her brother, she has completed immersed herself in UK society and considers herself to be thoroughly British. I accept the opinion of the ISW that she faces a significant risk of emotional damage if she is made to leave the UK at this stage. Although she is no longer a child she has only recently become an adult and continues to be entirely dependent upon her parents. They continue to see her as a child and her circumstances have changed very little from last year at this time, when she was still to be treated as a child.
29. A return to India would rupture T's private life and lead to substantial emotional damage. T and D have always lived together as siblings, even when their parents were in the UK. In my judgment it would be disproportionate to require T to return to India. There would be a substantial interference with her education, friends and relationship with her brother and parents. This interference is not outweighed by any countervailing factors. Unlike her parents, her immigration history cannot be used against her - she was nine when a decision was made by her parents to bring her to the UK.

Decision
30. The decision of the First-tier Tribunal contains an error of law and is set aside.
31. I remake the decision by allowing the appeals of all the appellants on Article 8 of the ECHR grounds.

Signed: Ms Melanie Plimmer Dated: 12 January 2017
Judge of the Upper Tribunal