Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/14030/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 14th February 2017
On 27th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

THE Secretary of State FOR THE Home Department
Appellant

and

SHARON OBENG ASAMOAH
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant: Mr D Mills, Senior Home Office Presenting Officer
For the Respondent: Mrs L Kullar of Aman Solicitors Advocates

DECISION AND REASONS

Introduction and Background
1. The Secretary of State appeals against the decision of Judge Andrew of the First-tier Tribunal (the FtT) promulgated on 10th October 2016.
2. The Respondent before the Upper Tribunal was the Appellant before the FtT and I will refer to her as the Claimant.
3. The Claimant is a female Ghanaian citizen born 29th January 1969 who on 4th August 2015 made a human rights application for leave to remain in the UK on the basis of her family and private life.
4. The application was refused on 8th December 2015. The Claimant appealed pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) and her appeal was heard by the FtT on 26th September 2016.
5. The FtT found that the Claimant could not satisfy the Immigration Rules in order to be granted leave to remain, these being the rules contained within Appendix FM, and paragraph 276ADE(1).
6. The FtT considered Article 8 of the 1950 European Convention on Human Rights (the 1950 Convention) outside the Immigration Rules. The FtT found that the Claimant had two children who were 'qualifying children' for the purposes of section 117B(6) of the 2002 Act, in that they were under 18 years of age and had lived in the UK continuously for a period of seven years or more.
7. The FtT found that the best interests of the children would be to remain in the UK, and that it would not be reasonable to expect them to leave this country. Therefore the appeal was allowed.
8. The Secretary of State applied for permission to appeal to the Upper Tribunal and the grounds are summarised below.
9. It was contended that the FtT had committed a material misdirection in law, and had failed to have any regard to MA (Pakistan) [2016] EWCA Civ 705, when considering section 117B(6). It was contended that the FtT had erred by treating the best interests of the children as determinative at paragraph 21. It was contended that the FtT had failed to take into account the Claimant's convictions and adverse immigration history, and the public interest factors within section 117B had not been considered in the reasonableness assessment.
10. Permission to appeal was granted by Designated Judge Peart who found;
"It is arguable that the judge erred in failing to take account of the public interest as she was obliged to do in terms of the Appellant's convictions and immigration history. Section 117B(6) was not determinative in the absence of an analysis of section 117B overall".
11. The Claimant did not submit a response pursuant to rule 24 of The Tribunal Procedure (Upper Tribunal) Rules 2008.
12. Directions were issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FtT decision contained an error of law such that it should be set aside.

The Oral Submissions
13. Mrs Kullar acknowledged that no rule 24 response had been submitted, but advised that the Secretary of State's application was opposed.
14. Mr Mills relied upon the grounds contained within the application for permission to appeal and placed reliance upon Kaur [2017] UKUT 00014 (IAC).
15. Mr Mills submitted that the FtT had erred at paragraph 21. The correct approach should have been for the FtT to consider the best interests of the children without considering other factors such as the immigration history of the Claimant, and having decided what was in the children's best interests, should then have gone on to consider whether it was reasonable for them to leave the UK, taking all other matters into account, in particular the public interest.
16. It was contended that the FtT had not followed this approach which amounted to a material error of law.
17. Mrs Kullar, in summary, argued that the FtT decision was well reasoned, had dealt with all relevant matters, including the public interest, and had taken into account section 117B, and also taken into account the Secretary of State's own guidance. It was submitted that the FtT decision disclosed no error of law.
18. By way of response, Mr Mills submitted that the FtT had not carried out the appropriate balancing exercise after having made a decision as to the best interests of the children, and it was no bar to children being removed, simply because their best interests lay in remaining in the UK.
19. At the conclusion of oral submissions I reserved my decision.
My Conclusions and Reasons
20. The Upper Tribunal in Kaur, which was not published when the FtT decision was made, clarifies the correct approach to be adopted. The best interests of the children must be considered in isolation from other factors such as parental misconduct. The best interests' assessment should normally be carried out at the beginning of the balancing exercise.
21. Once the best interests of the children have been decided, a decision should be taken as to reasonableness, taking into account the public interest, which includes the factors set out in section 117B of the 2002 Act, and also includes conduct of parents.
22. The best interests of the children are a primary consideration but not the only consideration and not the paramount consideration. They can be outweighed by the cumulative effect of other considerations. Even if it is found that it would be in the best interests of children to remain in the UK, this does not necessarily mean that they must be allowed to remain, and in some circumstances it may be reasonable for them to be removed.
23. In this case, the FtT did not carry out the best interests assessment at the beginning of the balancing exercise, but the FtT correctly recognised at paragraph 21 "that a child's best interests should not be compromised on account of the misdemeanours of its parents".
24. I do not find that the FtT regarded the best interests of the children in this case as determinative, and do not agree that section 117B factors were not considered.
25. The FtT decided that it was in the best interests of the children to remain in the UK, and this was a decision open to the FtT to make on the evidence before it. The FtT was entitled to take into account the length of residence, and the contents of the Secretary of State's guidance at paragraph 19 which is in similar terms to the conclusions of the Court of Appeal in MA (Pakistan) in which it is stated at paragraph 49 that the fact that a child has been in the UK for seven years must be given significant weight in the proportionality exercise as this is relevant to determining best interests, and because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary.
26. The FtT took into account that the children had never been to Ghana and that they had been in the UK since July 2007 and were in education in this country.
27. I find that having decided the best interests of the children would be to remain in the UK, the FtT went on to consider reasonableness taking into account other factors such as the Claimant's immigration history, and in my view the challenge made by the Secretary of State relates more to form rather than substance.
28. The FtT did take into account the Claimant's criminal offending, setting out details of two previous convictions at paragraph 9. There is further reference to the Claimant's convictions at paragraph 21. The FtT pointed out at paragraph 17 that the claimant had not had any right to be in the UK since November 2007. The FtT erred in describing her immigration status as precarious, as it would seem that her status was unlawful. There is further reference at paragraph 21 to the Claimant having had no right to be in the UK for approximately nine years.
29. The FtT also considered the ability of the Claimant and children to speak English at paragraph 15, and found the Claimant to be economically self-sufficient at paragraph 16. These are factors that must be considered as they are contained within section 117B, although if a Claimant can speak English and is economically self-sufficient, these can at best be regarded as neutral factors.
30. The FtT also took into account at paragraph 17, that little weight should be accorded to the private life built up by the Claimant, when she had no leave to remain in this country.
31. I therefore conclude that the FtT did carry out the necessary balancing exercise, and found that notwithstanding the Claimant's convictions and long term unlawful presence in this country, it would not be reasonable to expect the children to leave the UK. I therefore find no material error of law in the FtT decision.
Notice of Decision

The making of the decision of the FtT did not involve the making of an error of law such that the decision must be set aside. I do not set aside the decision. The appeal of the Secretary of State is dismissed.

Anonymity

No anonymity direction was made by the FtT. There has been no request for anonymity made to the Upper Tribunal and no anonymity order is made.

Signed Date 17th February 2017

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

Because the decision of the FtT stands, so does the decision to make a fee award.

Signed Date 17th February 2017

Deputy Upper Tribunal Judge M A Hall