Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/13812/2016
HU/13792/2016, HU/13797/2016
HU/13803/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 December 2016
Ex tempore decision
On 7 February 2017

Before

UPPER TRIBUNAL JUDGE HANSON

Between

Mr Timoor Azam Lone
Mrs Kiran Taimoor Lone
Miss Fizza Taimoor Lone
Miss Indelah Taimoor Lone
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr Taimoor Azam Lone in person
assisted by Mr Qadir, McKenzie friend.
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer.

DECISION AND REASONS
1. On 17 August 2016 First-tier Tribunal Judge B Lloyd dismissed the appellants' appeals against the refusal of the Secretary of State to grant the family leave to remain in the United Kingdom under the Immigration Rules, pursuant to the partner and parent route. That decision followed a hearing at Columbus House in Newport on 8 August 2016 in which the judge had been asked by the appellants to determine the merits of the case on the papers. Therefore, this is a case where none of the adult appellants elected to give oral evidence or to explain their situation in any more detail than that appearing in the documents that had been filed.
2. An application for permission to appeal the decision of Judge Lloyd was lodged raising a number of grounds. On 16 November 2016 permission to appeal was granted by First-tier Tribunal Judge Froom in the following terms:
"Permission to appeal is granted because it is arguable that the First-tier Judge made a material error in assessing the appeals on the basis that the child appellant, Fizza, had only been in the UK for the last three years. Whilst the First-tier Judge did record she was born in the UK in 2008 at paragraph 4 and referred later to the family residing in the UK for seven years [paragraph 34], it is clear the First-tier Judge found that paragraph 276ADE(1)(iv) was not met in the case of Fizza because he wrongly calculated her length of residence. The refusal letter accepted she had lived in the UK for seven years as at the date of application. As a result of this the First-tier Judge did not ask himself the key question, which was whether it was reasonable for her to leave the UK. This is a less demanding test than that of whether it would be unduly harsh. The grounds may be argued."
3. Before the Tribunal this morning Mr Lone has appeared assisted by a McKenzie friend, Mr Qadir. Ms Isherwood appears on behalf of the Secretary of State. It was accepted by this Tribunal at the very beginning of the hearing that in paragraph 17 of the determination under challenge Judge Lloyd has made a factual error. In that paragraph the judge makes the following findings:
"In relation to the third and fourth appellant, they have lived continuously in the UK for the last three years at the time of the application but not for at least seven years. The third and fourth appellants on the face of the evidence fail to meet the requirements of paragraph 276ADE(1)(iv) of the Immigration Rules."
The child Fizza is the third appellant, Indelah is the fourth appellant but no issue arises in relation to the Indelah.
4. Had that been the only reference in the decision to the ages of the children or duration of their stay in the United Kingdom it may have been that this hearing would have been a lot shorter than it has been this morning, but that is not the case. As Ms Isherwood mentioned, at the early part of the decision under challenge Judge Lloyd sets out the position in relation to the children and states at paragraph 2: "At the time of the hearing the two children are 7 and 4 respectively." The parents' dates of birth are then given.
5. In paragraph 4 the judge notes that the third appellant was born in the UK on 26 November 2008 and the fourth appellant was born in the UK on 10 April 2012 and there is no finding in the document that either of those appellants have left the UK for any period of time for the purposes of settling elsewhere or even visiting family in Pakistan. The judge was therefore fully aware of the date of birth of the third appellant in the United Kingdom and the age of that appellant, which is also stated in the grant of permission, a matter conceded by the Secretary of State in the decision notice. Although there is, as I say, error in paragraph 17 it is not an error of fact to the extent that the judge failed to take into account the actual circumstances of this child.
6. The more serious error arguably arising in paragraph 17 of the decision is where the judge goes on to say that "on the face of the evidence the third and fourth appellants fail to meet the requirements of paragraph 276ADE(1)(iv)" but only if that statement meant that the judge had failed to consider the relevant provisions of that paragraph. However, I find this is not the finding that is made by the judge. The judge clearly states: "On the face of the evidence they fail to meet the requirements of 276ADE(1)(iv)". This is a finding that the appellants had failed to discharge the burden of proof upon them to the required standard to show that they can meet that requirement of that Rule.
7. That Rule, as is conceded before the Tribunal today and in the appeal, in fact has two parts. The first part is that the individual child must have lived in the United Kingdom for at least seven years and the second part is that it must not be reasonable on all the facts to expect the child to leave the United Kingdom. The judge clearly records in the decision that the appellants' case was that it was not reasonable in the circumstances to expect Fizza to leave the UK to return to Pakistan with her family.
8. It cannot be said that this is a case in which the judge failed to consider the best interests of the children as they are specifically referred to at paragraph 28 of the determination under challenge. The finding by the judge in the following terms: "On any analysis the place of the children is with their parents wherever they are and wherever they have to pursue their future lives" and that the adult appellants had not shown any disproportionate impact upon the children and that there were no other matters which could be relied upon to conclude that the principles of Section 55 would be breached by the family's removal to Pakistan, is a finding that was fully open to the judge on the basis of the evidence the judge was asked to consider.
9. At the outset of the submissions Mr Qadir was asked by me in some detail about the facts that he asserted the judge failed to take into account in coming to the overall assessment and I shall refer to some of those shortly but, at this point, I wish to refer to one specific submission made that the judge erred in that the child's views were not taken into account.
10. The judge clearly considered all the documentary evidence that had been made available and makes a specific statement to that effect in the decision under challenge. This is a judge who is not only a very experienced fee-paid judge of the First-tier Tribunal in the Immigration and Asylum Chamber but also a judge who holds a salaried position within the Employment Tribunal based in Birmingham and, therefore, is a judge of some considerable experience in terms of judgecraft, the consideration of evidence, and also the need to carefully balance that evidence when coming to a decision.
11. It is accepted that there is a letter purportedly written by Fizza in the papers before the judge but the judge was clearly aware that the child was only 7 years of age and in the family jurisdiction there has been considerable work undertaken in past years to ascertain when a child's views are matters on which weight can be placed by a court, which is based in some respects upon whether a child has the ability to understand the need to tell the truth and the emotional understanding of a child in relation to the issues in account. In the family jurisdiction that is an issue that commonly arises in terms of visiting rights or when issues of where a child shall live arise. Neither issue is relevant to this case, but it has not been made out that a 7-year-old is able to understand the intricacies of a case of this nature although I do accept that a 7-year-old may be capable of saying "I wish to stay in the United Kingdom, I wish to stay in my school and I wish to stay with my friends". That was, however, a matter that the judge did take into account but did not find that the wishes of any member of this family were determinative, as I shall refer to shortly, or that the content of that letter showed that the best interests of the child were anything other than as assessed by the judge.
12. Guidance on the approach the judge was required to take has been provided in case law and I refer very briefly to it and I say 'very briefly' because the Supreme Court in two very recent decisions when looking at Article 8 matters do seem to suggest that parties, lawyers, and judges below, should end the practice of referring endlessly to decided authorities and should instead focus upon the facts of the case, look at the Razgar guidance, and incorporate the Rules and principles arising from the Article 8 case law as part of a proportionality assessment.
13. Notwithstanding, I refer to two cases. The first is the decision of EV (Philippines) & Ors [2014] EWCA Civ 874, a decision of the Court of Appeal which both parties have referred to and the lead judgment of Lord Justice Christopher Clarke in that case. At paragraphs 50 to 60 the Lord Justice stated as follows:
"58. In my judgment, therefore, the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world. If one parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted. If neither parent has the right to remain, then that is the background against which the assessment is conducted. Thus the ultimate question will be: is it reasonable to expect the child to follow the parent with no right to remain to the country of origin?
59. On the facts of ZH [that being a reference to ZH (Tanzania)] it was not reasonable to expect the children to follow their mother to Tanzania, not least because the family would be separated and the children would be deprived of the right to grow up in the country of which they were citizens.
60. That is a long way from the facts of our case. In our case none of the family is a British citizen. None has the right to remain in this country. If the mother is removed, the father has no independent right to remain. If the parents are removed, then it is entirely reasonable to expect the children to go with them. As the Immigration Judge found it is obviously in their best interests to remain with their parents. Although it is, of course a question of fact for the Tribunal, I cannot see that the desirability of being educated at public expense in the UK can outweigh the benefit to the children of remaining with their parents. Just as we cannot provide medical treatment for the world, so we cannot educate the world."
14. The judge in this case clearly took into account the immigration history of the adult appellants. This is referred to at paragraphs 3 to 5 of the decision under challenge. These show that the first appellant and the second appellant entered the United Kingdom lawfully, the first appellant in 2006 and the second appellant in 2007 as a student and student dependant respectively. The judge noted that that lawful leave continued until 30 November 2015 after which it expired by virtue of effluxion of time without any in time application having been made for further leave to remain. The judge noted that the application that led to the decision that was challenged by way of appeal was made on 24 December 2015, after the previous grant of leave had expired. Two issues arise in relation to that chronology.
15. The first is the point raised by Mr Qadir by reference to the grace and favour period granted by the Secretary of State of 28 days from the period when a previous grant of leave expired to enable an individual to make an application for further leave. Mr Qadir is not a lawyer and this is an area of some complexity but what he needs to understand is that the effect of the law is not that a further period of leave to remain of 28 days is granted. It is just that the Secretary of State will not refuse the second application because it has been made after the period of existing leave had expired. In this case the Secretary of State does not dismiss the application on the basis that it has been made at a time when no period of leave existed and outside the 28 day period provided by the Rules, so that does not assist the applicants in this case.
16. The second point that arises is that the status of the adult appellants and the children in this case has never been 'settled'. It has always been that their status has been temporary as a student and student dependant and in relation to the children no evidence that they had leave to remain in their own right and therefore their status has always been precarious.
17. In this case the judge went further than just considering that the evidence was precarious in paragraph 36 where the judge made the following finding:
"I have come to the conclusion that the appellants probably entered the UK from 2006 - then with leave - with the intention of settling in the UK and remaining here for economic and social benefit. They have subsequently started their family here. However, residence and entry to the UK is not a matter of preference to be exercised by individuals according to choice. They must comply with the requisite Immigration Rules. They have not in this case, and I conclude that the entry for study has historically been used by them as a device to secure long-term residence. Their leave finally expired on 30 November 2015."
18. The conduct of the adults is relevant in two respects. Firstly, if one returns to the judgment of Lord Justice Christopher Clarke it can clearly be seen at the date where the judge was making the decision under appeal that no member of this family had any lawful right to remain in the United Kingdom. The effect of the unchallenged finding in paragraph 36 is illustrated by the decision of the Court of Appeal in another case to which both parties have made reference, that of MA (Pakistan) v Upper Tribunal & Ors [2016] EWCA Civ 705, in which a differently constituted Court of Appeal found that when considering whether it was reasonable to remove a child from the UK under the Immigration Rules 276ADE(1)(iv) and the Nationality, Immigration and Asylum Act 2002, Section 117B(6), a court or Tribunal should not simply focus on the child but should have regard to the wider public interest considerations including the conduct and immigration history of the parents. Judge Lloyd has found, and it is an unchallenged finding, that the likely intention of the parents has been disingenuous in relation to the status they sought within the United Kingdom.
19. The other issue that needs to be borne in mind is that the best interests of the children are not the determinative factor. One has to go back only a relatively short distance in terms of case law, to a judgment of the Supreme Court in Zoumbas, in which it was confirmed that the best interests are one part of the proportionality assessment, albeit an extremely important one, that a judge has to take into account.
20. It cannot be successfully argued that the judge has erred in failing to consider all the written evidence. The fact the judge may not have set out 'chapter and verse' and made findings on each and every element of the evidence relied upon does not admit, or justify, a finding of arguable legal error as there is no legal obligation upon a judge to make findings on each and every issue that is relied upon by a party to an appeal.
21. The guidance that has been provided by the Senior Courts in relation to reasoning has set out a sensible test, which is whether a reader of the determination can understand why the judge came to the conclusion that he or she did in the particular circumstances of a case. In this matter it is clear by reading Judge Lloyd's decision that it can be understood why he arrived at the conclusion he did. It is a case in which the judge submitted the evidence to the appropriate degree of anxious scrutiny, including that relating to the composition of the family unit.
22. The judge notes the following at paragraphs 33 to 35:
"33. This is an appeal couched in a preference to remain in the UK and for children to be educated through the UK's education system."
Again, the comment of Lord Justice Christopher Clarke in EV (Philippines) is very pertinent to that application and finding.
23. At [34] it was found that the appellants comprise a cohesive family unit. "There is no clear evidence of a developed private life other than the routine connections that they have acquired through their residence here over the last seven years. They are first and foremost a family and dependent upon each other, showing that the nature of this family was one that very much existed as a cohesive family unit, which is a factor and an entity that was not shown to be disrupted as a result of the Secretary of State's decision".
24. The judge found that the first appellant came here as a student, shortly thereafter joined by his wife. "The second appellant never worked, successive extensions were sought and that the family made the application on the grounds of private and family life, although the family life element did not need to be considered to any great extent by the judge as the proposal is that in fact the family will be removed as a unit and such family life could continue".
25. A key finding by the judge is that set out in paragraph 37 in which the judge makes the following comment:
"The appellants have argued that there are exceptional circumstances in their case. These circumstances would appear to be based primarily on the interests of the children but also upon the notion that it would be unduly harsh for them to return to Pakistan. On the evidence before me I do not accept that. They have a family network in Pakistan which can assist them in their reintegration into their home country. They have not on any analysis severed their ties irrevocably. Further, in relation to the children, namely the third and fourth appellants, their best interests are served by their remaining as part of their family unit of mother, father and two siblings. Overwhelmingly, their best interests are served by their returning as a family to Pakistan."
That finding was challenged at length by Mr Qadir for a number of reasons, none of which I find when the decision is read as a whole in relation to the evidence that the judge was asked to consider on the papers, establishes arguable legal error.
26. First there is the reference to unduly harsh. It is not the finding by the judge that it would be unduly harsh but a reference to the basis upon which the case was submitted in the documentary evidence that had been provided. The judge did not accept that it was unduly harsh but it is clear from reading the rest of the decision as a whole that the judge was well aware that that was not the correct test, in any event, and that the requirement was to consider the reasonableness of removal both under the Immigration Rules and also Section 117B, which is referred to by the judge in paragraph 29 of the decision under challenge.
27. It was suggested that the finding that the family in Pakistan could not assist in reintegration was somehow perverse, irrational or contrary to the evidence but that has not been made out. The first appellant, and I accept the second appellant and all the family, have not placed any burden upon the public purse in the United Kingdom since they have been here as the first appellant has been supported throughout his time and his studies by his parents in Pakistan. The fact that the evidence showed that the parents were suffering from ill health does not necessarily mean that their circumstances have fallen to the extent that no further support would be available and indeed Ms Isherwood refers to a piece of real evidence, namely an application made for fees exemption by the first appellant on the basis that he is wholly dependent upon support received from his parents in Pakistan. That gives support to the case that the first appellant remains dependent upon, and supported by, the family who are in Pakistan.
28. The evidence that was provided in the papers the judge was asked to consider did not support the contention made by Mr Qadir this morning that such support was not available, even if funds had to be diverted to meet medical costs in Pakistan or that there was no family to assist in reintegration. The evidence suggested that in addition to the parents their older sibling, the first appellant's older brother, had returned to Pakistan to help the parents and although Mr Qadir suggested that the brother had not assisted the first appellant during his time in the United Kingdom it is not suggested from the correspondence that he would effectively abandon his brother, his brother's wife and the children if they sought some assistance from him in reintegrating. In any event, it was not established that such assistance as would have been needed was not available from other family members, namely the grandparents.
29. So far as Mr Qadir referred to the appellant's occupation as a freelance journalist in the contested area of Kashmir, which we all know, and have knowledge from the news reports on the BBC and elsewhere, is an area of some tension between India and Pakistan with occasional acts of violence from separatist elements. This is not a protection appeal. It has not been suggested that any real risk will arise to the first appellant by returning and continuing his chosen profession as a journalist. There was no evidence before the judge to suggest that that was the case.
30. It is accepted that taking a family who have been in the United Kingdom for a number of years and returning them to Pakistan, especially children who have no practical experience of having lived there previously, may well result in hardship, disruption, and possibly upset and distress, but that is the normal impact of removing families and expecting them to relocate. That is not necessarily a finding or a consequence limited to immigration matters as nationals within the United Kingdom having to remove themselves from Cornwall to the farthest North of Scotland, or even shorter distances within the UK, often have to move their children around the country and experience such practical problems and consequences. It would only be unreasonable if it was shown that the impact of the move on Fizza was such that it affected her physical or emotional wellbeing to an extent beyond that, that may lead to some form of irreparable harm or disadvantage to the child which could not be resolved with the assistance of the parents or other supportive networks that may exist.
31. The difficulty for the appellants in this case is the evidence that was made available to the judge was, as the judge stated, namely a wish and a preference to remain in the United Kingdom so the children could be educated here and their lives continue here as a family unit. It was not made out on the evidence that the consequences of removal meant that the threshold of 'unreasonableness' was even remotely met, let alone crossed, and breached in relation to this appeal.
32. I therefore make two findings. The first finding is the assertion that the judge applied the wrong test is not arguably made out. The second assertion that the judge erred in law in terms of the facts is not made out. The decision made can only be challenged on the basis of an irrationality or Wednesbury unreasonable argument, but this not made out. The finding by the judge that the appeal should be dismissed on immigration and human rights grounds, for the reasons stated, was wholly within the range of reasonable conclusions open to the judge. On the evidence it is arguable that it was the only sustainable decision that the judge could have made applying the appropriate legal provisions to the facts as found.
33. For that reason it is my finding that there is no material legal error made out in relation to this decision and the decision shall stand.

Notice of Decision
The appeal is dismissed. The decision shall stand.
No anonymity direction is made.

Signed Date: 6 February 2017

Upper Tribunal Judge Hanson