The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/24551/2018


Heard at Field House
Decision & Reasons Promulgated
On 17 May 2019
On 30 May 2019




(anonymity direction MADE)

Secretary of state for the home department

For the Appellant: Mr Z Raza, Counsel instructed by
London Imperial Immigration Services
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

1. The appellant appeals from the decision of the First-tier Tribunal (Judge James sitting at Taylor House on 4 February 2019) dismissing his appeal from the decision of the Secretary of State for the Home Department ("the Department") to refuse to grant him leave to remain as a child who has accrued over seven years' residence in the United Kingdom. As the appellant is a minor, I consider that it is appropriate that he is accorded anonymity for these proceedings in the Upper Tribunal.
Relevant Background
2. The appellant is a citizen of India, who was born in the UK to Indian parents on 17 November 2011. Immediately after his 7th birthday, his legal representatives applied for him to be granted leave to remain on the basis of family and private life established in the UK. They submitted that the appellant qualified for leave to remain on the grounds of private life under Rule 276ADE(1)(iv), as it would not be reasonable to expect him to leave the UK. Powerful reasons were required to remove a child from the UK who has been here for more than seven years, and no such reasons existed in this case. Moreover, the best interests of the appellant would be best served by him remaining in the UK for two reasons: (1) the socio-economic situation and facilities in India were far below standard or non-existent compared to the ones that he enjoyed in the UK; and (2) having been in the UK for seven years, he had established connections and friendships here which it would be unduly harsh to disrupt.
3. On 29 November 2018 the Department gave their reasons for refusing the appellant's application. His parents had entered the UK in 2010. They were still nationals of India and therefore they could return to India with him to reside there as a family unit. Both parents had resided in India for the majority of their lives, and therefore they could use their knowledge of Indian society, culture and language to help him to adjust to the way of life there. It was reasonable to expect him and his parents to return to India as a family unit, and to continue to enjoy their family life together there. While this might involve a degree of disruption to the appellant's private life, this was considered proportionate to the legitimate aim of maintaining effective immigration control and was in accordance with the SSHD's duties under section 55.
4. His parents would be able to support him while he became used to living in India and enjoying his full rights as an Indian citizen. He might be enrolled in education in the UK, but it was clear from the objective information available that India had a functioning education system which he would be able to enter. He had provided no evidence which indicated that his parents would not be able to maintain him in India, or that they would be unable to provide for his safety and welfare. His parents had shown great resourcefulness whilst living in the UK, and these skills would be transferable to India.
The Hearing Before, and the Decision of, the First-tier Tribunal
5. Both parties were legally represented before Judge James. The parents were in attendance at the hearing, and statements had been taken from them. However, the parents were not called as witnesses. In her subsequent decision, Judge James explained that, at the outset of the hearing, the legal representatives on both sides had confirmed that it was agreeable to deal with the matter by way of submissions only. She continued: "This was accepted to be on the basis that all the evidence would be weighed, both positive and negative, and it was not taken that the Appellant's evidence was unchallenged."
6. The bundle of documents filed by the appellant's legal representatives included a report dated 28 January 2019 from an Independent Social Worker ("ISW"). The ISW concluded:
"For a child that [is] making good academic progress in the UK to struggle within school in India could prove to be a demoralising experience and affect his self-esteem and confidence. Removal therefore has the potential to adversely affect [M's] emotional behavioural development and identity (Common Framework of Assessment - Child Developmental Needs). [The parents] have advised me about the uncertainty that they may face, in terms of even having appropriate accommodation and to cater for their basic needs. Consequently, this may infringe on [the parents'] ability to provide [M] with basic care and stability. (Parental Capacity-Common Assessment Framework - Appendix 4)."
7. In her decision promulgated on 26 February 2019, Judge James conducted a detailed analysis of the documentary evidence relied on by the appellant, and devoted over two closely-typed pages to a deconstruction of the report of the ISW. In a passage towards the end of this section, to which Mr Raza drew my attention, the Judge said as follows:
"He refers to a potential adverse effect on the child's emotional behavioural development and identity, in changing school and country, but fails to assess the positive aspects of such travel and re-engagement in person with his heritage and extended family members in India. All of these issues are addressed by the social worker, which together with his negative "assumptions" are not bolstered by any statements of the child, thus makes his report unreliable, and I give it little to no weight. That the social worker uncritically accepts all the claims of the parents without question, or reflection or the need to have it evidenced by other documents or information, is also a concern. Such as the claim to be homeless and without financial support upon return, and failing to assess how this family unit has been able to live in a more expensive country of the UK since their leave was curtailed in December 2012, and the claims that neither parent works in the UK (the last employed position seems to have been in 2011 as per details on the birth certificate). The social worker's total failure to assess how the family have lived in the UK from December 2011 to January 2019, the date of his report, a period of over six years, is a major hiatus in his report, which materially undermines his comments and conclusions, as well as his opinions."
8. The Judge went on to find at paragraph [10] that the appellant spoke Punjabi; that he came from an international multi-cultural school and community, and that he was versed in his religious and cultural heritage of the Gurdwara. He was bright and making good progress at school, and there was no reason to believe that this progress would not continue upon his return to India, with the support of his well-educated mother and his well-travelled parents, who had had the resilience to relocate to another country.
9. At paragraph [11], the Judge held that the appellant may have been in full-time schooling since 5 September 2016, but he was wholly reliant physically and psychologically on his parents, and was dependent upon them for his learning environment and upbringing. Although he had unknown friends at school, and an unnamed friend next door, little to no information had been provided about his private life or positive aspects of his life in the UK, as most of the evidence relied on was mere assertions and arguments against returning in a negative light only.
10. At paragraph [12], the Judge held that during, his very early years, the appellant would be primarily focused and centred on the caring of his parents and he had only start forming an embryonic private life since starting school in September 2016, which was fairly recent. The Judge continued:
"The best interests of child are a primary consideration and this includes remaining with the family unit, i.e. with his parents. Taking into account his linguistic skills and his Anglo-Indian environmental background in the UK, this tips the balance more towards remaining with his parents and travelling with them to India (EV (Philippines & Others) [2014] EWCA Civ 874. That there is no educational imperative at this stage in his early primary school career, tends to weaken the private life claim in this appeal. I do not accept that the Appellant has been distanced from his Indian heritage and country, in light of the above facts and ongoing contact with his extended family in India, together with their funding of his placement in the UK."
11. At paragraphs [14] and [15], the Judge applied the case law of Azimi-Moayed & Others (Decisions affecting children: onward appeals) [2013] UKUT 197 (IAC) and KO (Nigeria) [2018] UKSC 53. At paragraph [16], the Judge concluded that it was in the best interests of the appellant to remain with his parents, and that it was reasonable for him to return to India with them.
The Reasons for the Grant of Permission to Appeal to the Upper Tribunal
12. On 16 April 2019 First-tier Tribunal Judge Grimmett granted the appellant permission to appeal for the following reasons:
"The appellant says the Judge erred in her assessment of the social work report. This is arguable as the Judge notes the social worker fails to assess how the family has lived in the UK for 6 years with neither parent working. That is not necessarily a matter for a social worker to consider.
It also appears that the Judge has not given full consideration to [s117B(6)] bearing in mind the appellant has now spent the first 8 years of his life in the UK."
The Rule 24 Response
13. On 14 May 2019 Christopher Bates of the Specialist Appeals Team served a Rule 24 response opposing the appeal. The Judge had correctly approached the issue of reasonableness from a KO (Nigeria)-compliant starting point, having assessed relevant considerations. The Judge's criticisms of the Independent Social Worker's report was centred on the instructions given by the solicitors, and the inconsistency between suggestions that no discussion took place with the child over a potential return to India, and the Social Worker's assumptions based on inconsistent/omitted evidence from the parents on relevant matters relating to the family unit's ties to India (not least to extended family). The family had at least been partially supported by remittances from abroad, a fact not appreciated by the Social Worker, who did not question how the family was supported within the UK since December 2012. The Judge gave ample reasons to sustain a conclusion that, notwithstanding the existence of a qualifying child, return as part of the family unit was reasonable.
The Hearing in the Upper Tribunal
14. At the hearing before me to determine whether an error of law was made out, Mr Raza (who did not appear below) referred me to a skeleton argument which he had prepared. He developed two grounds of appeal. The first was that the Judge had misdirected herself in law. He submitted that she had not properly considered reasonableness in line with KO (Nigeria), paragraph [49] of MA (Pakistan), and the Department's IDIs on family migration published on 23 January 2019. He further submitted that the Judge had misinterpreted or misapplied the guidance on best interests given in Azimi-Moayed. Ground 2 was that the Judge had erred in law in attaching little or no weight to the report of the ISW. In reply, Mr Tarlow adhered to the Rule 24 response settled by his colleague. He submitted that it was a matter for the Judge what weight she gave to the evidence relied upon by the appellant.
The Latest Jurisprudence on the Reasonableness Question
15. On 24 October 2018 the Supreme Court gave their judgment in the case of KO (Nigeria) & Others -v- Secretary of State for the Home Department [2018] UKSC 53. Lord Carnwath, with whom the other Justices agreed, said at paragraph [16] that, unlike its predecessor DP5/96, Rule 276ADE(1)(iv) contains no requirement to consider the criminality or misconduct of a parent as a balancing factor and that it was impossible in his view to read it as importing such a requirement by implication. At paragraph [17], he said that section 117B(6) incorporated the substance of the Rule without material change, but this time in the context of the right of a parent to remain. He inferred that it was intended to have the same effect. The question again was what was reasonable for the child.
16. In assessing what was reasonable for the child, Lord Carnwath endorsed as a highly relevant consideration the following guidance contained in an Immigration Directorate Instruction (IDI) of the Home Office cited at paragraph [10]:
"It is generally the case that it is in a child's best interests to remain with their parents. Unless special factors apply, it is generally reasonable to expect a child to leave the UK with their parents, particularly if the parents have no right to remain in the UK (my emphasis)."
17. At paragraph [17], Lord Carnwath said:
"The list of relevant factors set out in the IDI Guidance (para 10 above) seems to me wholly appropriate and sound in law, in the context of section 117B(6) as with paragraph 276ADE(1)(iv)."
18. At paragraph [18], he continued:
"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 would 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 that the provision may give the parents a right to remain."
19. Lord Carnwath went on to say that the point was well expressed by Lord Boyd in SA (Bangladesh) -v- SSHD [2007] SLT 1245 at 22, and also by Lewison LJ in EV (Philippines) -v- SSHD [2014] EWCA Civ 874 at paragraph [58]. Lewison LJ said, inter alia, as follows: "If neither parent has the right to remain, then that is a background against which the assessment is conducted. Thus the ultimate question would be: is it reasonable to expect the child to follow the parent with no right to remain to the country of origin?"
20. Lord Carnwath said, at [19], that, to the extent that Elias LJ may have suggested otherwise in MA (Pakistan) at paragraph [40], he would respectfully disagree. There was nothing in the section to suggest that "reasonableness" was considered otherwise than in the real world in which the children find themselves.
21. At paragraphs [46]-[52], in which Lord Carnwath gave his reasons for dismissing the appeals of NS and AR. Both appeals featured blameless children who had resided in the UK for over 10 years at the time of the hearing in the Upper Tribunal on 5 November 2014.
22. Both claimants had entered the UK as students, on 19 February 2004 and 4 February 2003 respectively. NS's wife and older child had entered as dependants of NS in December 2004. AR's wife and child had entered as AR's dependants in February 2004. In October 2008, NS and AR had made separate applications for leave to remain as Tier 1 (Post-study work) migrants. In early 2009 the SSHD refused these applications on the basis that both NS and AR were involved in a scam by which they and numerous others falsely claimed to have successfully completed post-graduate courses at an institution called The Cambridge College of Learning.
23. NS and AR both appealed against the SSHD's decision, and their appeals were ultimately joined, and came before Upper Tribunal Judge Perkins. In his decision issued on 5 November 2014, he dismissed the appeals. With regard to the children, he had no difficulty in concluding that the best interests of the children required that they remain in the UK with their parents. That, from their point of view, would be an ideal result. He reminded himself that one of the children, particularly, had been in the UK for more than 10 years, and this represented the greater part of her young life and she was someone who could be expected to be establishing a private and family life outside the home. He also reminded himself that none of the children had any experience of life outside the UK and they were happy, settled and doing well. But the fact was that their parents had no right to remain unless removal would contravene their human rights. Given their behaviour, it would be outrageous for them to be permitted to remain in the UK: "They must go and in all the circumstances I find that the other appellants must go with them."
24. Mr Knafler QC, on behalf of the children, submitted that the decision of UTJ Perkins was erroneous in law as parental misconduct should have been disregarded. However, Lord Carnwath said at paragraph [51]:
"I accept that UTJ Perkins' final conclusion is arguably open to the interpretation that the "outrageousness" of the parents' conduct was somehow relevant to the conclusion under section 117B(6). However, read in its full context, I do not think he erred in that respect. He correctly directed himself as to the wording of the subsection. The parents' conduct was relevant in that it meant that they had to leave the country. As I have explained (para 18 above) it is in that context that it had to be considered whether it is reasonable for the children to leave with them. Their best interests would have been for the whole family to remain here. But in the context where the parents had to leave, the natural expectation would be that the children would go with them, and there was nothing in the evidence reviewed by the Judge to suggest that that would be other than reasonable (my emphasis)".
25. The outcome for the child who had over 10 years residence was thus the same under the new dispensation as it was under the old one. It was reasonable to expect her to leave the UK under a real world assessment. It was also reasonable to expect her to leave the UK pursuant to the "ideal world" two stage test such as was classically articulated by Clarke LJ in EV (Philippines), and which was cited with approval by Elias LJ in MA (Pakistan) & Ors [2016] EWCA Civ 705. Stage 1 was an assessment of the child's best interests in an ideal world, without any immigration overtones. Stage 2 was taking into account wider proportionality considerations, which might tip the balance in favour of removal of parent and child, particularly if the best interests in the child remaining in the UK were not overwhelming.
26. The effect of KO is that the two stage test is no longer permissible as a means of answering the question whether it is reasonable to expect the child to leave the UK. As is illuminated by the discussion of the Upper Tribunal in JG (S 117B (6): Reasonable to leave UK) Turkey [2019] UKUT 00072 (IAC), the consequence of a real world assessment which excludes from consideration the gravity of the parent's misconduct is that what might otherwise be reasonable, and hence proportionate, under the two stage approach is not necessarily going to be reasonable under the required KO approach, particularly as the ratio decidendi of JG is that Section 117B(6) requires a court of tribunal to hypothesise that the child in question would leave the UK, even if this is not likely to be the case.
27. However, while the required KO approach saved the day for the claimant in JG, logically it would have been problematic in MT and ET (child's best interests; ex tempore pilot) Nigeria [2018] 88 (IAC), which the appellant's legal representatives cited in their covering letter. The ratio decidendi of that case was that the immigration history of the parent was not so bad as to constitute a powerful reason for the removal of the erring parent and the qualifying child to Nigeria. But in retrospect the wrong question was being answered, and the wrong methodology was being applied (the two stage test discussed supra). The question should have been: was it reasonable to expect the child to leave the UK with the parent who had no right to remain?
Ground 1
28. In the application for permission to appeal, which was not settled by Mr Raza, the asserted misdirection in law by the Judge is put very starkly. It is pleaded that the Judge misdirected herself at paragraph [15] in stating that the ultimate question is whether it is reasonable to expect the child to follow the parent with no right to remain to the country of origin. It is pleaded that such an approach completely defeats the purpose of section 117B(6), and it is surely not what Parliament intended.
29. The line taken by Mr Raza is more nuanced. He accepts that the Judge has posed the right question at paragraph [15] of her decision. But he submits that the Judge has failed to factor into her analysis the countervailing principle affirmed by the Upper Tribunal in cases such as MT & ET, and also by the Court of Appeal in MA (Pakistan). The principle in question is that once a child has accrued seven years' residence in the UK, powerful reasons are required to remove such a child. At paragraph [49] of MA, Elias LJ said: "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."
30. I do not consider that the Judge misdirected herself in law. The entire discussion in MA (Pakistan) is predicated on the acceptance of the "ideal world" two stage test expounded by Clarke LJ in EV (Philippines). KO (Nigeria) has transformed the landscape such that the ideal world approach is no longer fit for purpose in the context of resolving the question of reasonableness. KO (Nigeria) resurrects the alternative real world approach also championed in EV (Philippines) where the immigration status of the parents becomes the essential background to the assessment, and not a matter which is postponed until after the best interests of the child have been assessed in an ideal world (i.e. in a world where the parents' lack of status is irrelevant).
31. In Azimi-Moayed & Others (decisions affecting children; onward appeals) [2013] UKUT 197 (IAC) the Upper Tribunal gave the following guidance:
30. It is not the case that the best interests principle means it is automatically in the interests of any child to be permitted to remain in the United Kingdom, irrespective of age, length of stay, family background or other circumstances. The case law of the Upper Tribunal has identified the following principles to assist in the determination of appeals where children are affected by the decisions:
(i) As a starting point in the best interests of children to be with both their parents and if both parents are being removed from the United Kingdom then the starting point suggests that so should dependent children who form part of their household unless there are reasons to the contrary.
(ii) It is generally in the interests of children to have both stability and continuity of social and educational provision and the benefit of growing up in the cultural norms of the society to which they belong.
(iii) Lengthy residence in a country other than the state of origin can lead to development of social, cultural and educational ties that it would be inappropriate to disrupt, in the absence of compelling reasons to the contrary. What amounts to lengthy residence is not clear cut but past and present policies have identified seven years as a relevant period.
(iv) Apart from the terms of published policies and Rules, the Tribunal notes that seven years from age 4 is likely to be more significant to a child than the first seven years of life. Very young children are focused on their parents rather than peers and are adaptable.
(v) Short periods of residence, particularly ones without leave or the reasonable expectation of leave to enter or remain, while claims are promptly considered, are unlikely to give rise to private life deserving of respect in the absence of exceptional factors. In any event, protection of the economic wellbeing of society amply justifies removal in such cases.
32. The effect of KO (Nigeria) is that the first principle stated in the Azimi-Moayed guidance is elevated in its significance and impact: the fact that both parents have no right to remain in the UK becomes in itself a powerful reason why it is both in the qualifying child's best interests to leave the UK with both his parents, and also reasonable to expect the child to do so. This is typified by the outcome of the appeals NS and AR in the Supreme Court. The qualifying children in those appeals had very strong private life claims, as they had accrued well over seven years' residence from the age of four. Nonetheless, applying a real world assessment, the outcome was the same, even though the adverse immigration history of their parents could not be taken into account.
33. The Judge was right to direct herself in line with the best interests guidance given by the Tribunal in Azimi-Moayed, as this guidance is more in line with the required real world approach than is the best interests guidance given, for example, by Clarke LJ in EV (Philippines) which, as previously canvassed, is now an inappropriate mechanism for answering the reasonableness question.
34. Mr Raza submits that the Judge misapplied the guidance in Azimi-Moayed, as she failed to give adequate recognition to the third principle. He submits that it is implicit that "compelling reasons to the contrary" does not include the fact that both parents have no right to remain, as this has already been catered for in the first principle.
35. Arguably the guidance in Azimi-Moayed requires updating in order to bring it fully into line with KO (Nigeria). Nonetheless, as it presently stands, the guidance is sufficiently open textured as to provide a working template for the consideration of a child's best interests in a real world context. I do not consider that it only lends itself to the narrow construction which Mr Raza seeks to place on it.
36. The Judge did not focus exclusively on the first principle. Consistent with principles two to four, she also took into account other relevant considerations bearing on the question of where the appellant's best interests lay, including the relative strength of the appellant's social, educational and cultural ties to the UK as against his corresponding ties to India, and the advantages of him of returning to the country of which he is a citizen.
Ground 2
37. The case pleaded in the permission application is that the reasoning of Judge James would be immaculate "if and only if the facts of this case were different". It is pleaded that the Judge committed a material error of law in holding that the report of the ISW was of no consequence or of little consequence, as no doubts were cast upon the ISW's qualifications or experience. It is further pleaded that the Judge completely disregarded the documentary evidence in the bundle confirming that the appellant had numerous connections in the UK "just like any other child that was born and brought up in the UK."; and that the following findings of fact were contrary to the evidence and/or based on assumptions which were unsustainable: (a) that the child could effectively communicate in the language that the parents would speak in India; and (b) that the child was familiar with Indian culture by virtue of living with his Indian parents.
38. It was open to the Judge to treat the report of the ISW as not having independent probative value. The mere fact that the ISW's qualifications and experience were not in doubt did not mean that the Judge had to accept the ISW's conclusions.
39. Firstly, the Judge was the ultimate arbiter of questions of fact, and also the ultimate arbiter on the question of where the best interests of the appellant lay; and of the question whether the relocation of the family unit to India would be detrimental to the appellant's best interests. Secondly, the conclusions expressed by the ISW were based upon the information which the ISW had received from the appellant's parents. If such information was inaccurate (as the Judge found), this was calculated to undermine the probative value of the ISW's conclusions.
40. The Judge cannot be faulted on adequacy of reasoning. On the contrary, the reasoning which underpins both her findings of primary fact and also her finding on the probative value of the ISW report is remarkable for its depth and detail.
41. It was open to the Judge to find that the appellant could effectively communicate in Punjabi and that he was familiar with Indian culture, for the reasons which she gave. These included the fact that his father communicated in Punjabi and the fact that the appellant attended a Gurdwara for religious worship.
42. Credibility is the province of the Judge, not the ISW, and so arguably it was harsh of the Judge to criticise the ISW for not questioning the parents' claim that they might struggle to make ends meet in India by interrogating them about their sources of funding in the UK (which - as was established at the hearing - is in part derived from remittances made to them by extended family in India). But the broad thrust of the Judge's critique of the report of the ISW is entirely sustainable. The instructions given to the ISW were slanted so as to encourage the ISW to make negative assumptions about the prospects for the family on return to India and the child's ability to adapt, and this negativity was reinforced by some of the information given by the parents, which the ISW took at its face value.
43. At the beginning of her deconstruction of the report, the Judge said: "It is unfortunate that instead of allowing the social worker to assess matters in an objective and open manner, the instructions are biased and slanted with assumptions, such as referring to the Indian environment as "alien", and the assertion that the child only speaks English and is "unable to speak Punjabi". As the judge went on to observe, the latter claim was undermined by the ISW's subsequent observation that due to the father's lack of proficiency in English language, he was reliant on the mother to interpret for him for some of the interview.
44. As the Judge also noted, at the interview that the ISW had with the parents on 13 January 2019, the ISW was given the information that the appellant did not want to go to India because he did not know the country and did not know who was living there.
45. But, this was not a response that the ISW elicited from the appellant directly. At the same time, the appellant's mother also told the ISW - in apparent contradiction of the statement referred to in [44] above - that she and her husband had not had a discussion with the appellant about the possibility of the family being removed to India.
46. Against this background, it was open to the Judge to find that the wishes of the child were a matter of conjecture and that the conclusions of the ISW were flawed because, among reasons, "[t]here is an assumption on the part of the report-writer that new experiences, including relocation to another country, is a negative matter and that new learning experiences are negative for children, which is clearly not the case. It is also assumed by the social worker, based on conversations with the parents, that the child has not had any exposure to India or its climate, failing wholly to address the Indian diaspora and the international nature of the school he attends, his Indian heritage, and that he resides in a home where his father only speaks Punjabi and little English ? or his links to and contacts with his paternal and maternal extended family members in India".

Notice of Decision

The decision of the First-tier Tribunal did not contain an error of law, and accordingly the decision stands. This appeal to the Upper Tribunal is dismissed.

Direction Regarding Anonymity

Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 22 May 2019

Deputy Upper Tribunal Judge Monson