Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: ia/05072/2015
IA/05073/2015
ia/05074/2015
ia/05075/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 25 August 2016
On 3 October 2016

Before

UPPER TRIBUNAL JUDGE STOREY

Between

madina [h]
hasan [a]
z A
A A
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr N Ahmed of Counsel instructed by Warwick Solicitors
For the Respondent: Mrs R Pettersen, Home Office Presenting Officer

DECISION AND REASONS
1. The appellants are citizens of Bahrain. The first two appellants, hereafter referred to A1 and A2, are husband and wife. The third and fourth appellants, hereafter referred to as A3 and A4, are their children born in April 2004 and September 2008 respectively. They appeal against decisions of the respondent dated 22 January 2015 refusing to vary their leave to remain and to remove them by way of directions under s.47 of the IANA 2006. Their cases come before me for re-making of the decision because on 27 June 2016 an Upper Tribunal Judge concluded that an earlier decision made by a First-tier Tribunal judge was vitiated by legal error and set it aside for re-hearing in the Upper Tribunal.
2. I mention at the outset that the appellants' grounds contained a request to have them treated as amended so as to add the point that:
"A1, A2 and A3 will complete 10 years lawful residence on 18.09.16. The appellants will satisfy the requirements under Appendix FM/Immigration Rules and are entitled to leave to remain on the basis of 10 years' lawful residence. The Home Office IDIs allow consideration/grant of an application on basis of 10 years' lawful residence [28 days or less before the required qualifying period is completed]".
3. I decline to accept this request for amendment, not just because there was ample time for it to have been requested earlier, but because the fact of the matter is that these three appellants have not even made an application under the relevant long residence provisions and the Upper Tribunal is not seized of any decision made in respect of these provisions.
4. The appellants' grounds otherwise asked that the Upper Tribunal consider the four appeals individually treating the appeals of the two children as a "start point". For the purposes of this appeal I shall proceed accordingly to treat the appeals of A3 and A4 as a start-point, although of course it is necessary to bear in mind that each appellant is a member of a single family.
5. As regards A3, it was submitted that she met the requirements of para 276ADE(iv) in that at the date of application she was under 18 and had lived continuously in the United Kingdom for over eights years. It was submitted that it was unjustified of the respondent to refuse her application under this provision on the basis of a failure to show that "it would not be reasonable to expect the applicant to leave the UK". At the date of hearing she was 12 years old and, in contrast to many cases dealt with under this provision, she and her family had always been in the United Kingdom lawfully. A3 was integrated into the UK culture and society. All of her education had been in the UK. She had made excellent progression in her studies. Her first language was English. She was a "qualifying child" within the meaning of s.117D of the NIAA 2002. Further, it was submitted that "A4 who is the sibling of A3 was born here and has also lived in the UK for over seven years".
6. The appellants' submission took particular issue with the respondent's assessment that the best interests of A3 would be to return to Bahrain with her parents and to adjust to life in her own country. This was said to be a misapplication of the principle since if one were to accept this argument every child applicant would fail under the Rules.
7. The appellants' ground also contended that the respondent had failed to apply her own IDIs which at the date of decision stipulated that where a child had been living in the UK for more than seven years, strong reasons had to exist to justify refusal.
8. The appellants' grounds also submitted that there was ample case law to the effect that (as was stated by the Upper Tribunal in EM and Others (returnees) Zimbabwe CG [2011] UKUT 98 (IAC)) "in the absence of countervailing factors, residence of over 7 years with children well-integrated into the educational system in the UK is an indicator that the welfare of the child favours regularisation of the status of mother and children". Also cited were SC (Article 8 - in accordance with the law) Zimbabwe [2012] UKUT 00056 (IAC) and MA (Pakistan) [2016] EWCA Civ 705.
9. As regards A4, the submissions advanced in support of A3 were adopted in their entirety and repeated, it being pointed out that she had been born in the UK and had lived here continuously for almost eight years.
10. In relation to the first two appellants, it was pointed out that there were no provisions within the Immigration Rules to cater for leave being granted to both parents in circumstances where a child's application succeeds under para 276ADE(1)(vi), but as clarified by the Upper Tribunal in PD and Others (Article 8 - conjoined family claims) Sri Lanka ]2016] UKUT 00108 (IAC), such cases stood to be considered under Article 8. It was submitted that the parents' circumstances were compelling and exceptional because there was clearly an existent family life and decisions amounting to an interference with that family life and, as regards proportionality, the parents satisfied the criteria set out in s.117B(6): see Treebhawon & Others (section 117B)(6)) [2015] UKUT 674 (IAC) and MA (Pakistan).
11. Mrs Pettersen for the respondent submitted that A3 and A4's cases fell to be refused under the Rules because it had not been shown that it would be unreasonable to expect them to return to Bahrain with their parents. Their parents were in the UK because the first appellant had been granted limited leave to enter as a student, which was a temporary capacity. Unless able to show unreasonableness of return, A3 could not succeed under either the Immigration Rules or s.117B(6). Being unable to show unreasonableness in respect of A3, the case of PD & Others was of no assistance to the parents or indeed to A4 who did not have the requisite seven years at the date of application anyway.
12. It is clear that the cases of all four appellants hinge to a large extent on whether A3 succeeds under para 276ADE since if she does, then this would be a very strong reason for finding the family's circumstances considered as a whole to be compelling. Conversely, if A3 does not succeed under para 276ADE it will be more difficult for the family to show compelling circumstances, not least because failure to establish eligibility under the Rules governing Article 8 adds to the weight that has to be attached to the public interest in the Article 8 balancing exercise: see e.g. SS (Congo) [2015] EWCA Civ 387.
13. I am not persuaded that A3 meets the requirements of para 276ADE(1)(iv). I do not consider A3 has shown that it would not be reasonable to expect her to return to Bahrain with her parents. It is true that her immigration history is one of unbroken lawful residence but it was as the dependent of a student parent and carried with it no expectation of being permitted to stay under the Rules. The respondent was entitled to rely on the fact that A3 would be removed together with her parents and sibling and be then able to continue to enjoy family life in Bahrain as a member of this family. Whatever the pre-existing policy was as regards seven years, the Secretary of State decided when amending the Rules to incorporate the additional requirement that it would not be reasonable to expect the children to return abroad.
14. Mr Ahmed is correct to argue that in assessing such reasonableness the respondent and now the Upper Tribunal is obliged to apply the principle of the best interests of the child and to apply it in a fair and material manner. The interconnected nature of these two matters has been emphasised by the Court of Appeal in its MA (Pakistan) judgment. However, I cannot agree that the respondent failed to assess this matter correctly. In my assessment the assessment of the best interests of A3 (and A4) requires a balancing exercise taking account of a wide range of factors. On the one side, the fact that A3 and her parents have been in the UK lawfully and that she has been in the UK for over 7 years at the date of application are weighty factors pointing to a conclusion that it would be in A3's best interests for the family to remain in the UK. However, I consider factors pointing in the other direction to carry considerably more weight. In this connection factors I find to be of particular importance include the following: that A's leave to remain has always been dependent on that of her mother and that leave has been limited leave for the temporary purposes of study; that A3 is still only 11 years (that is relevant given established case law emphasising that the child's ties outside the family environment are not as formed at that age as in the teenage years); that despite not speaking Arabic the children are Bahraini nationals and that is their heritage; that it would not be compulsory for A3 to wear the Abaya; that the children's parents are likely to be able to find work to support them there; and that the family would be returned to Bahrain together.
15. I also attach significant weight to the fact that the four appellants had travelled back to Bahrain on a holiday in circumstances demonstrating that they have strong family ties there and that the whole family values its Bahraini heritage. To the extent that the first two appellants sought to suggest before the First-tier judge they had had difficulties with the regime and feared that A would be forced to wear the Abaya, the judge clearly did not accept their evidence to that effect and the appellants' grounds before me did not furnish any good reason why I should take a different view.
16. Mr Ahmed's submissions included two general points about the Rules and also about the respondent's assessment that the best interests of the children lay with staying with their parents by returning to Bahrain. As regards the Rules, Mr Ahmed pointed out that the reasonableness requirement should be construed so that it was not too stringent a test. If it were applied stringently that would be contrary to the overall purpose of the Rules and the fact that for young persons over 18 who had lived half their life in the UK there was no reasonableness test. Given that Mr Ahmed accepted that he was not mounting a challenge to the vires of para 276ADE(iv), I need not address why I think such an a priori challenge must fail except to point out that there is clearly an objective basis for distinguishing the criteria relating to seven years and that relating to half a person's life since, for example, in the latter context it is a given that there has been a period of residence outside the UK. By definition someone over 18 who has spent half his or her life in the UK must have spent at least two years longer than seven and that is explanation enough at a policy level for why this different provision has no "reasonable to expect" test.
17. What of Mr Ahmed's submission that the respondent's approach to the best interests of the child assessment was legally flawed because if that assessment always considered that the child's best interests lay with his or her parent(s), no one could ever succeed. In my view this submission confuses assessment and outcome. It is clear from leading authorities such as AJ (India) [2011] EWCA Civ 1191 and EV (Philippines) [2014] EWCA Civ 874 that: (i) the best interests of the child assessment requires a balancing exercise taking into account a number of factors; and (ii) that depending on the facts the outcome of that assessment may be that the best interests of the child are to remain in the UK with their parents or it may be that their best interests lie with staying with their parents in their country of origin or elsewhere. An example of the latter scenario arose in AJ (India). In the instant case it was the respondent's assessment - and it is also my assessment- that the balance of factors is such that the child's best interests do not require them to remain in the UK but lies with them returning to Bahrain with their parents as a family unit, free to resume enjoyment of their family life there.
18. The only point that has given me pause for thought in re-making the decision in this case is the one highlighted by Upper Tribunal Judge Bruce when granting permission regarding the fact that Home Office IDIs at the time of the decision required strong reasons for not considering seven years as a reason to allow parents to remain. Clearly the refusal decisions made by the respondent do not express themselves in this language when arguably they should have. However, I am not persuaded that the respondent's decisions were in conflict with decided authority addressing the significance of the IDIs. As Elias LJ conceded in MA (Pakistan) at [46] the position established by the Court of Appeal goes no further than stating that "the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise" and it was that which he saw to be the essential effect of the published guidance in the IDIs expressly stating that once the seven years requirement is met, there must be "strong reasons" for refusing leave. Elias LJ pointed out in [47] that assessing reasonableness "will depend upon a careful analysis of the nature and extent of the links in the UK and in the country in which it is proposed [the affected person(s)] should return". In this connection Elias LJ cited the guidance in EV (Philippines). The established position as set out by Elias LJ was also one that took into account such factors as the age of the children bearing in mind that disruption becomes more serious as they get older.
19. Assessing the appeal for myself, I am satisfied that there are very strong reasons for concluding that the best interests of A3 would not be undermined or disrupted by returning with her parents to Bahrain. The factors making it reasonable to expect the children (both A3 and A4) and the parents to return to Bahrain together clearly outweigh those in favour of them being granted leave to remain. To decide otherwise would effectively be to say that a student family should succeed under the Rules simply on the basis that one of the children has been here lawfully seven years. There were no other factors that point in any significant way to this family being able to remain on the basis of A3's best interests.
20. To this point I have focused on the appeal of A3, but, as recognised in the appellants' grounds, the appeals of A4 and A1 and A2 are inevitably less strong because they cannot bring themselves within any of the provisions of para 276ADE (in A4's case she did not have seven years residence at the date of application) and in substance all four appeals depended on the issue of whether it was reasonable to expect all four to return to Bahrain together.
21. In PD the reason why the parents had a strong case outside the Rules was because one of their children met the requirements of para 276ADE. That is not the case here. It is clear that not only did the appellants all fail to meet the requirements of the Rules but that they have not established any compelling circumstance outside the Rules.
22. For the above reasons I conclude:
As previously found, the First-tier Tribunal Judge materially erred in law and his decision has been set aside;
The decision I re-make is that the appellants' appeals are dismissed.
I have made an anonymity order in respect of the two children. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 3 October 2016

Dr H H Storey
Judge of the Upper Tribunal