IA/00671/2014 & Ors.
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The decision
IAC-HW-MP-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/00671/2014
IA/00672/2014
IA/00673/2014
IA/00675/2014
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 19 November 2014
On 29 December 2014
Before
UPPER TRIBUNAL JUDGE RENTON
Between
CHANNA RAJEEVA KOHOMANGE
PRASANDA SUDHARSHANI KOHOMANGE HITIHAMY APPHAMILAGE
MANJANA MATHEESHA KOHOMANGE
SENALI SETHMINI KOHOMANGE
(anonymity direction NOT MADE)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr J Martin, Counsel, instructed by Indra Sebastian Solicitors
For the Respondent: Ms A Holmes, Home Office Presenting Officer
DECISION AND REASONS
Introduction
1. The Appellants are all citizens of Sri Lanka. They are the main Appellant, Channa Rajeeva Kohomange born on 18 March 1966, his wife born on 7 December 1966, and their children, a son born on 2 January 1994 and a daughter born on 1 January 2001. The main Appellant first arrived in the UK on 19 October 2005 when he was given leave to enter as a student until 24 March 2007. He was then granted successive periods of leave to remain as a student nurse, as a Tier 4 (General) Student, and as a Tier 1 (Post-Study Work) Migrant until 11 November 2013. He then applied for further leave to remain on the basis of his family life. That application was refused for the reasons given in a Refusal Letter dated 5 December 2013 when the Respondent also decided to remove the main Appellant under the provisions of Section 47 Immigration, Asylum and Nationality Act 2006.
2. The remaining Appellants are all dependants of the main appellant and as such received similar decisions.
3. The Appellants appealed, and their appeals were heard by First-tier Tribunal Judge Oliver (the Judge) sitting at Richmond on 29 August 2014. He decided to dismiss the appeals under the Immigration Rules but to allow them on human rights grounds for the reasons given in his Determination dated 19 September 2014. The Respondent sought leave to appeal that decision, and on 14 October 2014 such permission was granted.
Error of Law
4. I must first decide if the decision of the Judge to allow the appeal on human rights grounds contained an error on a point of law so that it should be set aside.
5. The Judge allowed the appeal on the basis that it was accepted by both parties that if returned, the family would return to Sri Lanka together and therefore removal would not amount to an interference with their family life. However, the Judge considered that such a removal would amount to a disproportionate breach of the Appellants' private life. The Judge attached weight to the fact that the youngest Appellant had resided in the UK for nearly nine years, having arrived at the age of 4 years. He took account of the considerations to establish the best interests of a child as given in Azimi-Moayed and Others (Decisions affecting children; onward appeals) [2013] UKUT 197. The Judge decided that the circumstances of the Appellants should be considered outside of the Immigration Rules, and that as none of the factors set out in Section 117B of the Nationality, Immigration and Asylum Act 2002 adversely affected the Appellants, their removal would be disproportionate.
6. Miss Holmes argued that the Judge had erred in law in coming to this conclusion. She referred to the grounds of application and submitted that following the decision in R (On the application of Nagre) v SSHD [2013] EWHC 720 (Admin), the Judge had erred in law by proceeding to consider the Appellant's human rights outside of the Immigration Rules without first making a finding that there were arguably good grounds in the nature of any compelling circumstances to do so. Further, the Judge had not taken into account the decision in Nasim and Others (Article 8) [2014] UKUT 00025 (IAC) in respect of private life cases, and had dealt with the children in the family as if they were British citizens.
7. Further, the reasons of the Judge were insufficient and contained no real analysis of the Appellants' circumstances. The Judge had failed to attach sufficient weight to the public interest, and had not demonstrated that he had carried out a proper balancing exercise.
8. In response, Mr Martin referred to the Rule 24 response and argued that any error of law was not material. This was because the youngest Appellant qualified for leave to remain under the provisions of paragraph 276ADE(iv) of HC 395. Considering her best interests, it would not be reasonable for her to return to Sri Lanka. This was particularly so as she suffered from alopecia. If the youngest Appellant was allowed to remain in the UK under this provision, then it would be a disproportionate breach of her right to a family life for her parents and brother to be removed to Sri Lanka. Her brother was in full-time education in the UK.
9. I do find an error of law in the decision of the Judge to allow the appeal in respect of all four appellants under Article 8 ECHR. Following the decisions in R (MM and Others) v SSHD [2014] EWCA Civ 985 and R (On the application of Esther Ebun Oludoyi and Others) v SSHD (Article 8 - MM (Lebanon) and Nagre) IJR [2014] UKUT 539 (IAC), it cannot be successfully argued that the Judge erred in law by considering the Appellants' Article 8 ECHR rights. However, in doing so, the Judge gave insufficient reasons for his conclusion that the Appellants' removal would amount to a disproportionate breach of their right to a private life. The Judge carried out no adequate analysis of the evidence, and paid scant regard to the public interest represented by the need to maintain the economic well-being of the country through effective immigration control. The Judge did not demonstrate that he had carried out any sort of balancing exercise apart from a passing reference to the factors contained in Section 117B of the 2002 Act.
10. I therefore set aside the decision of the Judge, and then proceeded to re-make that decision.
Re-made Decision
11. In order to re-make any decision of the Judge, there was no further evidence, but I heard more submissions from the representatives. In this connection, Miss Holmes argued that it would be reasonable for this family to return home. They have had the benefit of leave to enter and remain, but that had now expired, and as such leave had always been limited, the family had no expectation of being allowed to stay. The family would return to Sri Lanka as a whole. It would not be unreasonable for the youngest Appellant to continue her education in Sri Lanka. She had no right to an education in the UK. There was no evidence that the youngest Appellant could not be treated for her alopecia in Sri Lanka.
12. In response, Mr Martin said that he relied upon what he had said by way of submissions earlier. He argued that I should focus upon the situation of the youngest Appellant. Looking at the factors to be considered as given by Azimi-Moayed, it would not be in her best interests and therefore unreasonable for her to be removed to Sri Lanka. The key test for a non-British citizen child remaining on a permanent basis is the length of residence in the UK of that child.
Decision and Reasons
13. I will first consider the situation of the youngest Appellant, Senali Kohomange, as regards the provisions of Section 276ADE of HC 395. She arrived in the UK with her family on 19 October 2005, at which time she was aged 4 years 10 months. She has been resident in the UK ever since, a period which at the date of this hearing amounted to just over nine years. It is evident therefore that this Appellant satisfies the length of residence requirements of paragraph 276ADE(iv). I must now consider if it would not be reasonable to expect the youngest Appellant to leave the UK and return to Sri Lanka with her family. To do so, I will take account of the factors set out in Azimi-Moayed to ascertain what would be in the best interests of this appellant.
14. It seems to me that the part of the decision in Azimi-Moayed most relevant to this appeal states as follows:
"(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 reason 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."
15. The youngest appellant has spent just over nine years in the UK since her arrival at the age of 4. According to the evidence, and in particular the school reports relating to this Appellant, she is fully integrated into UK society. All of her primary education was received in the UK, and she has now progressed to her secondary education. She has achieved much success at school and has many friends there. She participates in school teams. She has no knowledge or experience of the education system in Sri Lanka, and according to her statement, no recollection of life in Sri Lanka. She feels at home in the UK.
16. It is in the public interest for the youngest Appellant to return to Sri Lanka as she does not otherwise qualify under the Immigration Rules for leave to remain. However, on the evidence before me, I find that it would be inappropriate to disrupt the social, cultural and educational ties which she has developed in the UK and therefore that it would not be reasonable to expect this Appellant to return to Sri Lanka. There are no compelling reasons requiring such disruption. She therefore qualifies for leave to remain under the provisions of paragraph 276ADE of HC 395 and I re-make the decision in her case so as to allow her appeal.
17. I will now consider the appeals of the remaining three Appellants, all brought under the provisions of Article 8 ECHR. It is not in dispute that they have a family life together, and also with the youngest Appellant. I take her Article 8 ECHR rights into account following the decision in Beoku-Betts [2008] UKHL 39. Indeed, her best interests must be treated as a primary consideration. I include Manjana Kohomange as a member of this family unit even though he is an adult. This is because he remains financially dependent upon his parents as a university student and therefore has a dependency upon them which goes beyond normal emotional ties.
18. I find that little weight is to be attached to the public interest. I accept that these Appellants do not qualify for leave to remain under the Immigration Rules, but their time in the UK has always been lawful. Further, referring to the factors set out in Section 117B of the Nationality, Immigration and Asylum Act 2002, all these Appellants speak English, and it is clear from the statements that they are self-financing and are not a burden on the taxpayer. Their immigration status is not precarious because although their leave was limited, as mentioned above their presence in the UK has always been lawful. More to the point, and referring to Section 117B(vi) of the 2002 Act, it has not been disputed that the first two Appellants have a genuine and subsisting parental relationship with a qualifying child being the youngest Appellant who has lived in the UK for a continuous period of seven years or more.
19. Set against the public interest, in my judgment the circumstances of these Appellants carries the greater weight. It is not the Respondent's case that this family should be split up, and I have already decided that the youngest Appellant has a right to remain under the Immigration Rules. My judgment is that this family should be allowed to continue its life in the UK and therefore that it would be disproportionate to remove them.
20. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law in respect of all Appellants.
21. I set aside those decisions.
22. I re-make the decision in respect of the Appellant, Senali Sethmini Kohomange, by allowing her appeal under the Immigration Rules. I re-make the decision in respect of the other Appellants by allowing their appeals on Article 8 ECHR grounds.
Anonymity
23. The First-tier Tribunal did not make an anonymity order and I find no reason to do so.
Signed Date 29 December 2014
Upper Tribunal Judge Allen
TO THE RESPONDENT
FEE AWARD
As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to repeat the fee award made by the Judge as the outcome of this appeals is that the appeals remain allowed.
Signed Date 29 December 2014
Upper Tribunal Judge Renton
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/00671/2014
IA/00672/2014
IA/00673/2014
IA/00675/2014
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 19 November 2014
On 29 December 2014
Before
UPPER TRIBUNAL JUDGE RENTON
Between
CHANNA RAJEEVA KOHOMANGE
PRASANDA SUDHARSHANI KOHOMANGE HITIHAMY APPHAMILAGE
MANJANA MATHEESHA KOHOMANGE
SENALI SETHMINI KOHOMANGE
(anonymity direction NOT MADE)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr J Martin, Counsel, instructed by Indra Sebastian Solicitors
For the Respondent: Ms A Holmes, Home Office Presenting Officer
DECISION AND REASONS
Introduction
1. The Appellants are all citizens of Sri Lanka. They are the main Appellant, Channa Rajeeva Kohomange born on 18 March 1966, his wife born on 7 December 1966, and their children, a son born on 2 January 1994 and a daughter born on 1 January 2001. The main Appellant first arrived in the UK on 19 October 2005 when he was given leave to enter as a student until 24 March 2007. He was then granted successive periods of leave to remain as a student nurse, as a Tier 4 (General) Student, and as a Tier 1 (Post-Study Work) Migrant until 11 November 2013. He then applied for further leave to remain on the basis of his family life. That application was refused for the reasons given in a Refusal Letter dated 5 December 2013 when the Respondent also decided to remove the main Appellant under the provisions of Section 47 Immigration, Asylum and Nationality Act 2006.
2. The remaining Appellants are all dependants of the main appellant and as such received similar decisions.
3. The Appellants appealed, and their appeals were heard by First-tier Tribunal Judge Oliver (the Judge) sitting at Richmond on 29 August 2014. He decided to dismiss the appeals under the Immigration Rules but to allow them on human rights grounds for the reasons given in his Determination dated 19 September 2014. The Respondent sought leave to appeal that decision, and on 14 October 2014 such permission was granted.
Error of Law
4. I must first decide if the decision of the Judge to allow the appeal on human rights grounds contained an error on a point of law so that it should be set aside.
5. The Judge allowed the appeal on the basis that it was accepted by both parties that if returned, the family would return to Sri Lanka together and therefore removal would not amount to an interference with their family life. However, the Judge considered that such a removal would amount to a disproportionate breach of the Appellants' private life. The Judge attached weight to the fact that the youngest Appellant had resided in the UK for nearly nine years, having arrived at the age of 4 years. He took account of the considerations to establish the best interests of a child as given in Azimi-Moayed and Others (Decisions affecting children; onward appeals) [2013] UKUT 197. The Judge decided that the circumstances of the Appellants should be considered outside of the Immigration Rules, and that as none of the factors set out in Section 117B of the Nationality, Immigration and Asylum Act 2002 adversely affected the Appellants, their removal would be disproportionate.
6. Miss Holmes argued that the Judge had erred in law in coming to this conclusion. She referred to the grounds of application and submitted that following the decision in R (On the application of Nagre) v SSHD [2013] EWHC 720 (Admin), the Judge had erred in law by proceeding to consider the Appellant's human rights outside of the Immigration Rules without first making a finding that there were arguably good grounds in the nature of any compelling circumstances to do so. Further, the Judge had not taken into account the decision in Nasim and Others (Article 8) [2014] UKUT 00025 (IAC) in respect of private life cases, and had dealt with the children in the family as if they were British citizens.
7. Further, the reasons of the Judge were insufficient and contained no real analysis of the Appellants' circumstances. The Judge had failed to attach sufficient weight to the public interest, and had not demonstrated that he had carried out a proper balancing exercise.
8. In response, Mr Martin referred to the Rule 24 response and argued that any error of law was not material. This was because the youngest Appellant qualified for leave to remain under the provisions of paragraph 276ADE(iv) of HC 395. Considering her best interests, it would not be reasonable for her to return to Sri Lanka. This was particularly so as she suffered from alopecia. If the youngest Appellant was allowed to remain in the UK under this provision, then it would be a disproportionate breach of her right to a family life for her parents and brother to be removed to Sri Lanka. Her brother was in full-time education in the UK.
9. I do find an error of law in the decision of the Judge to allow the appeal in respect of all four appellants under Article 8 ECHR. Following the decisions in R (MM and Others) v SSHD [2014] EWCA Civ 985 and R (On the application of Esther Ebun Oludoyi and Others) v SSHD (Article 8 - MM (Lebanon) and Nagre) IJR [2014] UKUT 539 (IAC), it cannot be successfully argued that the Judge erred in law by considering the Appellants' Article 8 ECHR rights. However, in doing so, the Judge gave insufficient reasons for his conclusion that the Appellants' removal would amount to a disproportionate breach of their right to a private life. The Judge carried out no adequate analysis of the evidence, and paid scant regard to the public interest represented by the need to maintain the economic well-being of the country through effective immigration control. The Judge did not demonstrate that he had carried out any sort of balancing exercise apart from a passing reference to the factors contained in Section 117B of the 2002 Act.
10. I therefore set aside the decision of the Judge, and then proceeded to re-make that decision.
Re-made Decision
11. In order to re-make any decision of the Judge, there was no further evidence, but I heard more submissions from the representatives. In this connection, Miss Holmes argued that it would be reasonable for this family to return home. They have had the benefit of leave to enter and remain, but that had now expired, and as such leave had always been limited, the family had no expectation of being allowed to stay. The family would return to Sri Lanka as a whole. It would not be unreasonable for the youngest Appellant to continue her education in Sri Lanka. She had no right to an education in the UK. There was no evidence that the youngest Appellant could not be treated for her alopecia in Sri Lanka.
12. In response, Mr Martin said that he relied upon what he had said by way of submissions earlier. He argued that I should focus upon the situation of the youngest Appellant. Looking at the factors to be considered as given by Azimi-Moayed, it would not be in her best interests and therefore unreasonable for her to be removed to Sri Lanka. The key test for a non-British citizen child remaining on a permanent basis is the length of residence in the UK of that child.
Decision and Reasons
13. I will first consider the situation of the youngest Appellant, Senali Kohomange, as regards the provisions of Section 276ADE of HC 395. She arrived in the UK with her family on 19 October 2005, at which time she was aged 4 years 10 months. She has been resident in the UK ever since, a period which at the date of this hearing amounted to just over nine years. It is evident therefore that this Appellant satisfies the length of residence requirements of paragraph 276ADE(iv). I must now consider if it would not be reasonable to expect the youngest Appellant to leave the UK and return to Sri Lanka with her family. To do so, I will take account of the factors set out in Azimi-Moayed to ascertain what would be in the best interests of this appellant.
14. It seems to me that the part of the decision in Azimi-Moayed most relevant to this appeal states as follows:
"(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 reason 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."
15. The youngest appellant has spent just over nine years in the UK since her arrival at the age of 4. According to the evidence, and in particular the school reports relating to this Appellant, she is fully integrated into UK society. All of her primary education was received in the UK, and she has now progressed to her secondary education. She has achieved much success at school and has many friends there. She participates in school teams. She has no knowledge or experience of the education system in Sri Lanka, and according to her statement, no recollection of life in Sri Lanka. She feels at home in the UK.
16. It is in the public interest for the youngest Appellant to return to Sri Lanka as she does not otherwise qualify under the Immigration Rules for leave to remain. However, on the evidence before me, I find that it would be inappropriate to disrupt the social, cultural and educational ties which she has developed in the UK and therefore that it would not be reasonable to expect this Appellant to return to Sri Lanka. There are no compelling reasons requiring such disruption. She therefore qualifies for leave to remain under the provisions of paragraph 276ADE of HC 395 and I re-make the decision in her case so as to allow her appeal.
17. I will now consider the appeals of the remaining three Appellants, all brought under the provisions of Article 8 ECHR. It is not in dispute that they have a family life together, and also with the youngest Appellant. I take her Article 8 ECHR rights into account following the decision in Beoku-Betts [2008] UKHL 39. Indeed, her best interests must be treated as a primary consideration. I include Manjana Kohomange as a member of this family unit even though he is an adult. This is because he remains financially dependent upon his parents as a university student and therefore has a dependency upon them which goes beyond normal emotional ties.
18. I find that little weight is to be attached to the public interest. I accept that these Appellants do not qualify for leave to remain under the Immigration Rules, but their time in the UK has always been lawful. Further, referring to the factors set out in Section 117B of the Nationality, Immigration and Asylum Act 2002, all these Appellants speak English, and it is clear from the statements that they are self-financing and are not a burden on the taxpayer. Their immigration status is not precarious because although their leave was limited, as mentioned above their presence in the UK has always been lawful. More to the point, and referring to Section 117B(vi) of the 2002 Act, it has not been disputed that the first two Appellants have a genuine and subsisting parental relationship with a qualifying child being the youngest Appellant who has lived in the UK for a continuous period of seven years or more.
19. Set against the public interest, in my judgment the circumstances of these Appellants carries the greater weight. It is not the Respondent's case that this family should be split up, and I have already decided that the youngest Appellant has a right to remain under the Immigration Rules. My judgment is that this family should be allowed to continue its life in the UK and therefore that it would be disproportionate to remove them.
20. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law in respect of all Appellants.
21. I set aside those decisions.
22. I re-make the decision in respect of the Appellant, Senali Sethmini Kohomange, by allowing her appeal under the Immigration Rules. I re-make the decision in respect of the other Appellants by allowing their appeals on Article 8 ECHR grounds.
Anonymity
23. The First-tier Tribunal did not make an anonymity order and I find no reason to do so.
Signed Date 29 December 2014
Upper Tribunal Judge Allen
TO THE RESPONDENT
FEE AWARD
As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to repeat the fee award made by the Judge as the outcome of this appeals is that the appeals remain allowed.
Signed Date 29 December 2014
Upper Tribunal Judge Renton