Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/02336/2015
IA/02338/2015
IA/02341/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision & Reasons Promulgated
On: 1st December 2016
On: 12th December 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Secretary of State for the Home Department
Appellant
And

Moinuddin [C]
Tania [H]
[J H C]
(No anonymity direction made)
Respondents

For the Appellant: Mr Walker, Senior Home Office Presenting Officer
For the Respondent: Mr Waheed, Counsel instructed by Thamina Solicitors

DECISION AND REASONS

1. The Respondents are all nationals of Bangladesh. They are respectively a father (dob 1st December 1978), mother (27th November 1977) and their minor child (2nd September 2009). On the 28th June 2016 the First-tier Tribunal (Judge Herbert OBE) allowed their linked appeals on human rights grounds. The Secretary of State now has permission to appeal against that decision1.

2. This was in essence, an appeal premised on the grounds that this family have established such ties to the United Kingdom that it would now be a disproportionate interference with their private lives to expect them to leave. As one would expect, particular emphasis was placed, by the parties and the Tribunal, on the children. I say children in the plural because the Third Respondent is not the only child of the family. He has an older sister (date of birth 6th May 2006) who has lived in the United Kingdom since the 14th April 2008. For reasons best known to the Secretary of State, this older child's application and appeal were sent on a different track from that of her parents and brother. There is no need to here go into any detail about that unfortunate administrative peculiarity since the parties before Judge Herbert, and indeed before me, were in agreement that by operation of section 117B (6) of the Nationality, Immigration and Asylum Act 2002, the impact of these decisions on that child was plainly relevant to the outcome of these appeals.

3. The First-tier Tribunal's findings can be summarised as follows:

i) Neither adult could succeed under the Immigration Rules relating to Article 8;
ii) The only 'qualifying child', that is to say a child who had spent seven continuous years in the United Kingdom, was the couple's daughter, who at the date of the appeal had been in the United Kingdom for over eight years;
iii) The younger child had been born here and had lived here for six and half years;
iv) There was "overwhelming" evidence about the strong ties that both children enjoyed with the United Kingdom (the determination makes reference to, for instance, the children's excellent school reports);
v) Neither child speaks Bangla, both have English as a first language;
vi) They have no immediate family in Bangladesh;
vii) A move would be extremely unsettling and disruptive for the children;
viii) It would be unduly harsh and disproportionate to remove the children today.

4. The Secretary of State appeals on the ground that the determination is incomplete and the proportionality assessment unsustainable. The written grounds point out that the determination nowhere addresses the fact that there are no health concerns, that Bangladesh is the children's country of nationality, that they are young enough to adapt. Before me Mr Walker placed emphasis on the absence of the public interest as a consideration in the determination.

My Findings

5. Before me the parties agreed that the legal framework for this appeal was Article 8 ECHR, and that the Tribunal was bound in its assessment of proportionality to have regard to the public interest factors set out by parliament in s117B(1)-(6) of the 2002 Act. Those factors are set out at paragraph 33 of the determination:

117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English-
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to-
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where-
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the UK.

6. What follows is a detailed analysis of sub-section (6). The focus for the Tribunal's enquiry is, for some 19 paragraphs, the children, and the impact that removal would have upon them. At paragraphs 54 and 55 the Tribunal briefly considers the reduced socio-economic circumstances that the family would face in Bangladesh, before returning to a further 28 paragraphs about the children. Although not cited, it would appear that Judge Herbert was structuring his proportionality balancing exercise in line with the view expressed by the President, McCloskey J in Treebhawon and Ors (section 117B(6)) [2015] UKUT 674 (IAC). In that case the President held that there was no ambiguity about the way that the section was drafted. The factors at (1)-(5) were all matters that should be taken into account but in cases involving qualifying children the public interest would not require the removal of a parent where it would not be reasonable to expect the child to follow him or her. He did not use the language of 'trump' but that was in effect how he found the section was drafted.

7. Although much of that analysis has now been adopted by the Court of Appeal in MA (Pakistan) [2016] EWCA Civ 705 [at 14-20] their Lordships have underlined that the factors at (1)-(5) cannot be ignored. With some reluctance, the court accepted the Secretary of State's view that those factors had to be 'read in' to an analysis of whether removal of a child would be 'reasonable'. To that extent, the First-tier Tribunal has here erred in law in failing to deal with those matters set out at (1)-(5).

8. What the materiality of that might be is unclear in this case. The family have always had valid leave to remain, since the day that they arrived. Mother and Father were Tier 4 Migrants and the children Tier 4 dependents. The applications that culminated in this appeal were made 'in-time' so they continue to hold leave today, conferred by 3C of the Immigration Act 1971. The whole family speaks excellent English. They are financially independent. Although little weight could be attached to the private lives established by each family member in the time that they have been in the United Kingdom, this consideration had to be read alongside the fact that the Third Respondent was a child, with no say at all on where his private life was established, or whether his status was precarious: see Miah (section 117B NIAA 2002 - children) [2016] UKUT 00131 (IAC). The strongest argument for the Secretary of State, and that matter that attracted the greatest weight, was the fact that none of the three appellants as they were before Judge Herbert now had any entitlement to leave to remain under the immigration Rules. As such there was some public interest in removing them. That was the factor that had to be balanced against the factors set out in the determination in respect of the children.

9. I am not satisfied that the decision in this case could have been any different had the Tribunal specifically weighed that factor in the balance, nor indeed any regard to the matters mentioned in the grounds, such as the happy fact that neither child has any serious health complaints. As both the Upper Tribunal and Court of Appeal have pointed out, the Secretary of State's own guidance indicates that once a child has accrued seven years' long residence, "strong reasons" will be required to justify denying him leave: see for instance MA (Pakistan) and PD and Ors (Article 8 - conjoined family claims) Sri Lanka [2016] UKUT 00108 (IAC). 'Strong reasons' might for instance be criminality on the part of the parents, or egregious breaches of immigration control, or perhaps very positive factors relating to the country of origin such as the presence of other siblings or close family members. As Mr Walker was compelled to acknowledge, no such reasons have been identified in the grounds, nor appear obvious from the evidence before the Tribunal.

10. It follows that any error in the determination in not having specific regard to s117B(1)-(5) is immaterial. For the sake of completeness I should add that had I been required to remake the appeals today I would have had to take into account the fact that the Third Respondent is now also a 'qualifying child'. No countervailing factors have emerged since Judge Herbert took his decision.

Decisions

11. The decision of the First-tier Tribunal does not contain an error of law such that it should be set aside. The decision is upheld.

12. There is no direction for anonymity.

Upper Tribunal Judge Bruce
2nd December 2016