Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/14374/2018
HU/14381/2018
HU/14389/2018
HU/14394/2018
HU/14396/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 June 2019
On 21 June 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

AVTAR [S]
RAJDEEP [K]
[GSU]
[PKU]
[JS]
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Chohan, counsel.
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the appellants against a decision of the First-tier Tribunal promulgated on 8 March 2019 dismissing their appeal against the respondent's decision of 20 June 2018 refusing them leave to remain on human rights grounds.

Background.

2. The appellants are all citizens of India. The first appellant, born on 25 April 1975, is married to the second appellant, born on 12 April 1987. They have three children, the third appellant, born on 27 August 2010, the fourth appellant, on 22 January 2013 and the fifth appellant, on 10 March 2014.

3. Their immigration history can briefly be summarised as follows. The first appellant claims that he entered the UK illegally in December 2000. The second appellant entered on 17 May 2005 with a visit visa valid until November 2005 and, thereafter, she became an overstayer. Their three children have all been born in the UK. On 22 December 2017 the appellants applied for leave to remain on human rights grounds based on their family life. Their applications were refused for the reasons set out in the decision letter of 20 June 2018. The respondent was not satisfied that the appellants could meet the requirements of the Rules or that there were exceptional circumstances which would lead to a refusal of leave being in breach of article 8. The appellants could return to India as a family unit and continue to enjoy their family life together. Any disruption to their private life would be proportionate to the legitimate aim of maintaining effective immigration control.

The Hearing before the First-tier Tribunal.

4. At the hearing before the First-Tier Tribunal, the judge recorded at [6] that the appellants' representative confirmed that it was accepted that they could not meet the requirements of the Rules and that the appeal was based on article 8 grounds only. It was submitted that the appeal should be decided on the basis that the eldest child, the third appellant, had been in the UK for over seven years, that he should be granted leave and the other members of the family should be granted similar status.

5. The first appellant claimed in his evidence that he was afraid of returning to India, but the judge did not find his evidence to be credible in that respect. She set out her reasons for her findings on this issue in [11]-[14].

6. The judge accepted that all three of the children had been born in the UK and that there was no dispute that the eldest child had been in the United Kingdom for nearly 9 years by the date of the hearing and was therefore a qualifying child but it was the respondent's case that it would be reasonable for him to return to India with the rest of his family [16].

7. She commented that it was apparent from the evidence that the appellants had all benefited from the use of the NHS, the three younger appellants had been schooled at the expense of the UK and that neither parent had made any contribution to the economy of the UK [17].

8. She went on to consider the best interests of the children in accordance with s.55 of the Borders, Citizenship and Immigration Act 2009. She was satisfied that it was in the best interests of all three to be brought up in a family unit with their parents [18] but she also had to address whether the best interests of the third appellant were served by his remaining in the UK. She accepted that going to India would be disruptive for him. He did not know the country, but the first appellant had acknowledged that he spoke the language. His education would be disrupted but there was nothing before the judge to show that he was at a critical stage in his education. She referred to the decision in Azimi-Moayed (Decisions affecting children; onward appeals: Iran) [2013] UKUT 197 that length of residence could lead to the development of social, cultural and education ties that it would be inappropriate to disrupt without compelling reasons and that seven years was considered a relevant period in cases of children for such ties to be developed and emotionally it would be undoubtedly highly stressful.

9. The judge noted at [21] that she had no evidence before her of any friendships the third appellant had made or his wishes and feelings about being returned to India. There was no independent evidence from a social worker to inform her of the effect that removal would have and there was nothing to show that any of the children were in poor health or that healthcare would not be available to them on return to India. She was satisfied that there were educational facilities for them there.

10. The judge saw no reason why the third appellant could not establish a connection with his country of nationality. He and his family attended services at their Gurdwara and took part in other activities there. They had relatives in India as well as in in the UK [23].

11. She considered the position of the third appellant in the light of EB (Philippines) [2014] EWCA Civ 874 and MT and ET (Child's best interests - ex tempore project) Nigeria [2018] UKUT 88. She found that the best interests of third appellant would lie in his remaining in the United Kingdom because it would mean that his ties formed here since birth would not be disrupted and he would be likely to have better opportunities both educationally and economically by remaining in the UK [25]. She commented, however, that she did not find this to be a case where the third appellant's best interests pointed overwhelmingly in favour of remaining in the UK because of the factors already mentioned [26].

12. The judge took into account the judgment of the Supreme Court in KO (Nigeria) [2018] UKSC 53 and in particular the guidance that it was inevitably relevant to consider where the parents were expected to be as it would normally be reasonable for the child to be with them. To this extent, the record of the parents may become indirectly material if it led to them having to leave the UK and it would only be if it was not reasonable for the child to leave with them, that the provisions of the Rules may give to parents the right to remain [27].

13. The judge said that, although she considered that it was in the third appellant's best interests to remain in the UK, it was reasonable bearing in mind the public interest in the maintenance of immigration control for him to return to India with his parents and siblings all of whom had no right to remain in the UK [28]. The third appellant had not reached a critical stage in his education and he would be able to adapt to life in India with the support of his parents. There were relatives in India and the third appellant was not totally unfamiliar with the culture and traditions there. She took into account the significant period of time the first and second appellants had spent in the UK, saying this could not be overlooked. She made it clear that she was not relying on their misconduct as part of her consideration of reasonableness, which KO (Nigeria) had confirmed to be an incorrect approach. In considering where the parents were expected to be, in India, she was satisfied that it was reasonable to expect the third appellant and his younger siblings to return to India with them [33]. For these reasons, the appeal was dismissed.

The Grounds and Submissions.

14. In the grounds, it is argued that the judge failed to recognise the decision of TZ (Pakistan) [2018] EWCA Civ 1109 which confirmed that meeting the Rules was determinative of a human rights appeal; the third appellant was a qualifying child both in terms of para 276ADE and s. 117B(6); the judge had recorded a concession that the Rules could not be met but this concession was made in respect of the adult's ability to meet para 276ADE not the third appellant's ability to meet 276ADE(1)(iv), which if successful would qualify the adult appellants under para EX.1.; the judge erred in her assessment of reasonableness and in her interpretation of KO (Nigeria), which did not affect the application of MA (Pakistan) [2016] EWCA Civ 705 at [49] that the fact that a child had been in the UK for seven years would need to be given significant weight in the proportionality exercise; the judge failed to identify strong and powerful reasons in the light of the third appellant's residence exceeding seven years to justify a finding that it was reasonable for him to return to India with his family or to treat that length of residence as the starting point of leave being granted and the judge had failed to give adequate consideration to the best interests of the third appellant.

15. Mr Chohan adopted these grounds. He submitted that the judge had failed to give any or any proper weight to the fact that the appellant would be moving to a new country with a different educational system and be living in a different culture. He would have to move to a new school. In substance, the third appellant was being blamed for the failure of his parents to comply with the Rules. The length of his residence in the UK meant that that should have been the proper starting point and the judge should have considered whether there were strong and powerful reasons rebutting the presumption of leave being granted. Even looking at the matter in the context of the real-world situation, she had failed to give proper weight to the best interests of the third appellant.

16. Mr Bramble submitted that the judge had reached a decision properly open to her on the evidence. She had properly directed herself in accordance with KO (Nigeria). She was clearly aware that the central core of the appeal was the fact that the oldest child had been resident in the UK for over seven years. She had considered all the relevant evidence and had explained her finding that it would be reasonable for the third appellant to leave with the other members of his family. The fact that another judge might have reached a different decision did not mean that this judge had erred in law. Her decision was properly open to her for the reasons she gave. In the grant of permission there was reference to JG (s.117B(6): "reasonable to leave" UK) Turkey [2019] UKUT 72, also referred to in the grounds, but that case was based on very different facts and could properly be distinguished.

Consideration of whether the First-tier Tribunal erred in law.

17. I accept that the judge may have misunderstood the concession made at the beginning of the hearing that the appeal was proceeding solely on article 8 grounds. In the light of the length of the third appellant's residence in the UK, the provisions of para 276ADE(1)(iv) were met in respect of length of residence but this rule also contains the requirement set out in s. 117B(6) of needing to show that it would not be reasonable to expect the third appellant to leave the UK.

18. In KO (Nigeria) the Supreme Court made it clear that, when assessing reasonableness, the proper context was the real-world position in which the children found themselves. Lord Carnwath said at [18]:
"On the other hand, as the IDI guidance acknowledges, it seems to me inevitably relevant in both contexts to consider where the parents, apart from the relevant provision, are expected to be, since it will normally be reasonable for the child to be with them. To that extent the record of the parents may become indirectly material, if it leads to their ceasing to have a right to remain here and having to leave. It is only if, even on that hypothesis, it would not be reasonable for the child to leave the provision may give the parents a right to remain".
19. In the present case none of the appellants have the right to remain in the UK and, accordingly, normally it would be reasonable for the children to return with their parents.

20. The Supreme Court set out this approach in the context of finding that the provisions of section 117B(6) were focussed on the position of the child and that the best interests of a child included the principle that a child should not be blamed for matters for which they were not responsible including the conduct of their parents.

21. I am satisfied that the judge followed the approach set out in KO (Nigeria). In her assessment of what was reasonable she took into account the length of the third appellant's residence which by the date of the hearing was over nine years, the whole of the third appellant's life. She was clearly aware that the length of his residence was a relevant consideration, citing, as she did, the Tribunal decision in Azimi-Moayed, which considered the importance of length of residence at [13].

22. The judge took into account and carefully considered the best interests of the third appellant. She found that they would lie in remaining in the UK because it would mean that the ties formed since birth would not be disrupted and he was likely to have better opportunities both educationally and economically by remaining in the UK. When considering the third appellant's best interests, the judge specifically considered the potential disruption to him from having to move both school and country. However, she noted that there was nothing before her to show that he was at a critical stage in his education or that he would not receive a suitable education in India where both his parents been educated to GCSE level.

23. She had no evidence of any friendships the third appellant had or about his wishes. There was nothing to indicate that any of the appellants were in poor health or that healthcare would not be available. She considered whether the third appellant in particular could establish a connection with his country of nationality noting that he and family members attended services at the Gurdwara and took part in activities there. They had relatives both in India and in the UK. She also had to factor into her assessment of reasonableness her finding that it was in the best interests of all three children to be brought up in a family unit with their parents.

24. Having considered these factors, she then considered the judgment in KO Nigeria reminding herself that where, as here, the third appellant's parents had no right to be in the UK, as neither did he or his siblings, it would normally be reasonable for the children to be with them. She found that the third appellant would be able to adapt to life in India. She did not accept that the family would have nowhere to go and was satisfied that the first appellant's brother farmed family land. She also noted the evidence that the appellants were being supporting the UK by siblings here and she was entitled to find that there was no reason to show that this support would not continue if the family were removed to India [30] and that there was no reason why the first appellant could not obtain work there [31].

25. She took into account the significant period of time the first and second appellants had been in the UK commenting that the fact that it had been spent here illegally could not be overlooked. However, she explained that she was not relying on misconduct on their part as part of the consideration of reasonableness but simply giving effect to the guidance that where parents have no entitlement to be in the UK, normally their children should return with them.

26. In summary, the grounds do not satisfy me that the judge erred in law. The reference to TZ (Pakistan) in the grounds is beside the point. The third appellant had to show that he could not reasonably be expected to leave the UK if he was to succeed under para 276ADE(1)(iv) and the judge reached a finding on reasonableness which was properly open to her. It was for her to assess in the light of the evidence as a whole whether it would be reasonable for the third appellant to be expected to leave the UK. Therefore, if the judge did misunderstand the concession made at the beginning of the hearing, it had no material bearing on the outcome of the appeal.

27. She took into account the length of the third appellant's residence and explained why it did not make it unreasonable to expect him to leave the UK in the light of the other factors she identified. The grounds refer to and rely on MA (Pakistan) and the significant weight to be given to residence of more than seven years but there is no reason to believe that she did not give proper weight to the length of his residence. I am also satisfied that the judge gave full consideration to the best interests of the children. The grounds refer to JG (Turkey) but there is nothing in that decision where the facts differ significantly from this appeal to support an argument that the judge erred in law.

28. I am satisfied that she was entitled to find that it would be reasonable for the third appellant return to India with his parents and siblings none of whom had the right to remain in the UK, having balanced all the various factors she had identified. She looked at the situation in which the family found itself and reached a decision properly open to her.

Decision.

29. The First-tier Tribunal did not err in law and it follows that the decision to dismiss the appeal stands.

Signed: H J E Latter Dated: 14 June 2019

Deputy Upper Tribunal Judge Latter