The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/13652/2018
HU/13662/2018, HU/13669/2018


Heard at Manchester CJC
Decision & Reasons Promulgated
On 25th January 2019
On 9th May 2019





(1) Bushra [A]
(2) [M K]
(3) Feroz [K]
(4) Zaryab [K]
(ANONYMITY direction not made)

For the Appellant: Mr C Bates (Senior HOPO)
For the Respondents: Mr Karnik (Counsel)

1. This is an appeal against the determination of First-tier Tribunal Judge Foudy, promulgated on 12th October 2018, following a hearing at Manchester on 2nd October 2018. In the determination, the judge allowed the appeal of the Appellants, whereupon the Secretary of State subsequently applied for, and were granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellants
2. The Appellants are a family of a mother and her three children. They are all citizens of Pakistan. They were born on 3rd September 1976, on 25th April 2003, on 25th May 2000, and on 27th August 1997 respectively. They applied for leave to remain in the UK on the basis of their private life in the UK and their family life with Mr Mohammed [K], a British citizen, living in the UK, and the husband of the first Appellant, and the father of the remaining three Appellants.
The Refusal Letter
3. The refusal letter wrongly stated that the sponsoring husband and father of the Appellants was not a British citizen, whereas plainly he was. The refusal letter also held that the eligibility requirement could not be satisfied by the Appellants on that account.
The Judge's Findings
4. In what is a careful, detailed, and thoughtful determination, the judge set down the circumstances of the Appellants (especially at paragraph 7), before making her findings at paragraph 8. The first matter that she asserted was that,
"Unfortunately, the reason for refusal letter not only gives a wrong name for the Sponsor, but importantly it asserts that the Sponsor is not British. That is wrong. The Sponsor became a British citizen on 21st February 2017, well before the Appellants made their applications for further leave. I find that this critical error by the Respondent coloured the entire decision making process as the Respondent refused all the applications on eligibility grounds on the basis that the Sponsor was not British." (Paragraph 8)
5. The judge then went on to record how the youngest of the Appellants was the son of 15 years of age, and how the older children of the family are an integral part of the family unit (paragraph 9). Reference was made by the judge to the fact that a case may have "unusual history of the family" which "may contribute to their current interdependence" but all would depend on the circumstances. In this case, after the sponsoring husband and father had come to the UK in 2005, he had been separated from the rest of his family until 2015, when they joined him from Pakistan. The second Appellant was only 2 years old, and the third Appellant 5 years old, when their sponsoring father left Pakistan.
6. The judge observed that "the family is unified again they are somewhat more dependent upon one another than might usually be the case" (paragraph 10). She went on to observe that there was "evidence of the closeness of the family ties" which "emerged in oral evidence when the third and fourth Appellants explained how they worked part-time in order to financially assist the family" (paragraph 11). Consideration was then given by the judge to the youngest of the four Appellants, [MK], and the judge held that, "I therefore find it is clearly the best interests of [MK] that he lives securely together with his parents and his siblings" (paragraph 12), before giving a detailed breakdown in five subparagraphs, as to why this was the case.
7. The judge then went on to consider the position of Zaryab, the only daughter of the family, observing that she was "in a unique position as she was already an adult when the decisions were made, and was now 21, but a full-time student". The judge held that it would not be reasonable or proportionate to expect her to return to Pakistan in her position, explaining the situation in four subparagraphs (at paragraph 15).
8. The appeal was allowed.
Grounds of Application
9. The grounds of application state that the judge erred by failing to apply the position under the Immigration Rules, before going on to consider Article 8 ECHR outside the Rules. The grounds also asserted that the judge erred in considering each of the Appellants as if they would be returning alone. The reality was that they would all be removed as a family unit. The failure of the judge to consider the matter on this basis, and then to decide that the family would face insurmountable obstacles on return, was simply unsustainable.
10. The grounds also asserted that there was no evidence referred to by the judge to show that the Sponsor will not travel to India to be with the family (which is curious because the Appellants are not from India but from Pakistan). The grounds then go on to say that "for such an argument to succeed it is submitted that the Appellants would have to show it was unduly harsh for a British citizen to do so ?"
11. On 26th November 2018, permission to appeal was granted.
12. At the hearing before me on 25th January 2019, Mr Bates, appearing as Senior Home Office Presenting Officer, on behalf of the Respondent Secretary of State, explained that this decision was unsustainable for the following reasons. First, the judge ought to have embarked upon the exercise of fact-finding on the basis of first looking at the situation under the Immigration Rules. If the Appellants could not succeed under the Immigration Rules, then a finding in that regard as to "proportionality" of the decision by the Secretary of State, would inform the judge's finding on "proportionality" under freestanding Article 8 rights as well. The failure to look at the position under the Immigration Rules was a fundamental error.
13. Second, that the judge looked at "insurmountable obstacles" outside the Immigration Rules, but in allowing the appeal on that basis, the judge erred because all of the Appellants were born outside the UK in Pakistan, and there was no suggestion that they could not return to Pakistan without facing an insurmountable difficulty. They have already lived apart from the Sponsor for ten years. The judge's finding was that the daughter, Zaryab, had been a great assistance to the mother, the first Appellant. That assistance could continue if the family were returning back to Pakistan together.
14. Third, to give such pre-eminent importance to the position of the children, was in any event incorrect because none of them were "qualifying children".
15. Fourth, none of them actually met with the Immigration Rules. For all these reasons, the judge had erred in law.
16. For his part, Mr Karnik submitted that the application was fundamentally misconceived for the following reasons. First, it was not the case that the judge began to look at the situation outside the Immigration Rules. The judge was specifically focused upon the position under the Immigration Rules, because it is only under the Immigration Rules that the test of "insurmountable obstacles" arises in the first place, and the judge allowed the appeal on that basis. This was firmly understood by all the parties and by the judge at the hearing.
17. Second, the initial decision had been wrong in stating that the Sponsor was not a British citizen, because the effect of that was to hold that the Appellants could not meet the eligibility requirements, and that, as the judge found, had coloured the decision thereafter.
18. Third, the appeal before this Tribunal was on the basis that the judge had failed to consider whether it was "unduly harsh" for the parties to return. This, however, was not a deportation case. The test of "unduly harsh" obstacles arose only in relation to a deportation case.
19. Finally, the plain fact here was that the Sponsor was a British citizen, and the judge had found that the second Appellant, the son, [MK], was entitled, in his best interests, to be brought up by both parents (see paragraph 12) and that he should not "lose the day-to-day care of either of his parents or be parted from his siblings" (paragraph 12).
20. In those circumstances, the judge was entitled to conclude, for a family that had initially been separated, but had then come together, and were even more interdependent upon them than would normally be the case (see paragraph 10), that their return to Pakistan would present the family with insurmountable obstacles.
21. In reply, Mr Bates submitted that the judge gave no reasons for why a British citizen father cannot go to Pakistan and live with his family there. Second, it was open to the entire family to go back together. Moreover, the daughter, Zaryab, could also go because the judge did not explain why she could not have the protection of her sponsoring father in Pakistan. Third, all that was happening was that the clock was being taken back to 2015 when the family came together after a ten-year period of separation. Finally, even if there were "insurmountable obstacles" the judge had failed to take into account the full impact of Section 117B, which required the public interest in immigration control to be promoted.
No Error of Law
22. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007), such that I should set aside the decision and remake the decision. My reasons are as follows.
23. First, the points taken in the present appeal before this Tribunal, were not the points that were raised in the Grounds of Appeal, that formed part of the submissions before the First-tier Tribunal. The test that is operative is not one of "unduly harsh" but the test that appears in EX.1, namely, of "insurmountable obstacles", and that arises directly from the Immigration Rules. The initial decision to refuse was plainly erroneous because it proceeded on the basis that the Appellants could not meet the eligibility requirements because the Sponsor was not British. It then held that there were no insurmountable obstacles. Importantly, it also suggested that removal would be pursued, regardless of whether all the family was being returned or each one of them were being returned individually.
24. This is important because it is a matter that is expressly referred to by the judge at paragraph 15, when the judge observes that "Miss Millward [for the Respondent] confirmed, at my request, that the Respondent's position is that it pursues the removal of the fourth Appellant with or without the other Appellants". The fourth Appellant here is the daughter of the first and second Appellants, Zaryab, who had now reached the age of 21 years. Given that this was the case, the judge was entitled to look at the position singularly in relation to Zaryab, and to come to the conclusion that, "I find that removal of the fourth Appellant alone would be wholly unreasonable and disproportionate", before proceeding to give reasons for this. These reasons included the fact that she would find it very difficult to seek employment in Pakistan, that young women who are unmarried, rarely live alone, and attract societal disapproval, and that "her level of commitment to her family is unusually high for a 21-year-old" (paragraph 15).
25. For this reason, it is unfair to criticise the judge for giving a particularised and careful attention to the position of Zaryab, the fourth Appellant. In the same way, insofar as the judge is referring to the second Appellant, [MK], in terms of his "best interests", she is entitled to do so because of the express finding in relation to this child that he would "lose the day-to-day care of either of his parents" which would not serve his best interests, and the judge gives clear reasons for this. One of these is that, "he has reached a critical point in his education when he is approaching his first public examinations. His performance in those examinations could determine his future career" (paragraph 12).
26. Second, although the judge does consider the position of the Appellants separately, what is plainly the case here is that, she undertakes the determination of all claims jointly, with a view to ensuring that all material facts and considerations are taken into account in each case, and that cannot be an error on her part (see PD [2016] UKUT 108).
27. Third, the judge's findings that any one of the Appellants could meet the Rules, indirectly also meant, given the approach taken by the judge, that the others were also bound to succeed, in circumstances where the findings in relation to the family life of this set of Appellants, is unchallenged. Also unchallenged is the finding in relation to "best interests". If that is the case then the Section 117B factors cannot be taken against the Appellants.
28. Fourth, the judge applied the correct test, namely, what the position would be in a real-world situation, and the ground of application by the Respondent, being predicated on it being "unduly harsh" for a British citizen to relocate to Pakistan, is plainly misconceived, because that is not the correct test. The reference in the grounds of application to EV (Philippines) [2014] EWCA Civ 874, is unhelpful because in that case no-one was settled, leaving aside the question whether anyone was British, as is the case here. What is unmistakably the case here is that the husband and father of the Appellants is a British citizen, and the Secretary of State cannot remove him, and the family cannot be removed intact, in the light of the findings made by the judge in relation to [MK]. This is also the case in relation to Zaryab, the fourth Appellant, insofar as it is the Secretary of State's position that he would countenance the removal of individual family members, as well as the family as a whole.
29. All in all, therefore, the decision was one that the judge was entitled to come to. I bear in mind MA (Somalia) [2011] 2 All ER 65 where Sir John Dyson, stated that "the court should not be astute to characterise as an error of law what, in truth, is no more than a disagreement ?" It was also said in AH (Sudan) [2008] 1 AC 678 that, "appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently" (at paragraph 30).
Notice of Decision
30. The decision of the First-tier Tribunal did not involve an error of law. The decision shall stand.
31. No anonymity direction is made.
32. This appeal is allowed.

Signed Date

Deputy Upper Tribunal Judge Juss 3rd May 2019