Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/05832/2015
IA/05836/2015
IA/05838/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 August 2016
On 29 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

SA & Miss and Master JA
(ANONYMITY ORDER MADE)
Appellants

v

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DECISION & REASONS

Representation:
For the Appellant: Mr Otchie, counsel instructed by Calices Solicitors
For the Respondent: Mr Avery, Home Office Presenting Officer

1. The Appellants are nationals of Ghana and comprise a mother, born on 1 December 1978 and her two children who are twins born on 27 March 2006. The first Appellant claims to have entered the United Kingdom in 2002 in possession of a six month visit visa and thereafter overstayed. The two children were born in this country. The first Appellant applied for leave to remain under Article 8 of ECHR on 27 April 2012 and this application was refused in a decision made on 27 January 2015. Appeals were lodged against these decisions, which came before First tier Tribunal Judge Miller for hearing on 17 December 2015.
2. In a decision and reasons promulgated on 11 January 2016, he dismissed the appeals. The Judge was not satisfied that the first Appellant had separated from the children's father, despite her evidence that she and the children had not seen him since 2011. He did not find her evidence to be credible and at [22] did not accept that the first Appellant had severed all links with remaining family members and friends in Ghana. At [25] the Judge held that it would be proportionate for the Appellants to leave the United Kingdom and with regard to section 117B(6) of the NIAA 2002, that it would be reasonable to expect the children to leave the United Kingdom.
3. Permission to appeal to the Upper Tribunal was sought in time on the basis that the Judge failed to treat the children's best interests as a primary consideration. It was pointed out that the children would be eligible for British citizenship on 27 March 2016, having been born in the United Kingdom. Permission to appeal was granted by Upper Tribunal Judge Canavan on 19 July 2016 on the basis that:
"It is at least arguable that the judge did not conduct a full evaluative assessment of the children's best interests and their ties to the United Kingdom in accordance with the principles contained in EV (Philippines) and ZH (Tanzania). It is arguable that his finding at paragraph 20 that casts doubt on whether he considered the best interests of the children as a primary consideration."

Hearing
4. At the hearing before me, Mr Otchie confirmed that applications for British citizenship had been made on behalf of the children. He submitted that the Judge had materially erred in that the majority of his decision focuses on the actions of the parents rather than the best interests of the children and no reference was made to the judgments in Zoumbas [2013] UKSC 34, EV (Philippines) [2014] EWCA Civ 874 and Azimi-Moayed [2013] UKUT 00197 (IAC). He submitted that there is a difference between the assessment at paragraph 276ADE(iv) and section 117B(6) of the NIAA 2002. In response, Mr Avery submitted that the Judge could not be blamed for failing to engage with paragraph 276ADE(iv) given that the Appellants' representative at the First tier Tribunal hearing conceded that the appeals could not succeed under the Immigration Rules. Mr Avery further sought to rely on the Court of Appeal judgment in MA (Pakistan) [2016] EWCA Civ 705 to the effect that the assessment of reasonableness is not confined to the children but also encompasses the status of the parents.

Decision
5. I reserved my decision, which I now give with my reasons. I find that the First tier Tribunal Judge materially erred in his assessment of the best interests of the two minor Appellants. The Judge's reasons are set out at [19]-[26] of the decision but despite recording the submission by the Appellant's representative that "it will be disproportionate and contrary to section 55 for them to be removed, as the children were just under 10 years of age and had never been to Ghana" at no stage does the Judge engage with any analysis of the best interests of the children. This analysis is mandatory in light of the section 55 statutory duty and a failure to conduct a reasoned analysis of where the children's best interests lie and why is clearly necessary as part of any proportionality assessment.
6. However, I do not accept Mr Otchie's submission that the Judge erred in failing to consider paragraph 276ADE (iv) of the Immigration Rules. It is clear from paragraph 276ADE(1) that the requirement must be met at the date of application. The application in this case was made on 27 April 2012, at which stage the children were 6 years of age and thus did not qualify as they had not lived continuously in the UK for at least 7 years.
7. However, there is no such requirement in respect of section 117B(6) of the NIAA 2002, which provides that "the public interest does not require the person's removal where (a) the person has a genuine and subsisting relationship with a qualifying child and (b) it would not be reasonable to expect the child to leave the United Kingdom." A "qualifying child" is defined at section 117D (1) as a person under the age of 18 who is either (a) a British citizen or (b) has lived in the United Kingdom for a continuous period of seven years or more. Whilst the Judge found, in all the circumstances of the case, that it would be reasonable to expect the second and third appellants to leave the United Kingdom, I do not consider that this finding is sustainable absent any assessment of the best interests of the minor Appellants. Moreover, it is clear from the judgment of Elias LJ in MA (Pakistan) [2016] EWCA Civ 705 at [46] that with reference to section 117B(6) "where the seven year rule is satisfied, it is a factor of some weight leaning in favour of leave to remain being granted."
8. Applications for British citizenship have now been made in respect of the two minor Appellants, based on their birth and ten years residence in the United Kingdom. Whilst Mr Avery was unable to assist with regard to whether or not a decision has been made, he did not seek to argue that the applications will not be granted. In these circumstances, I find it would not be reasonable for the two minor Appellants to leave the United Kingdom, given that they were born in the United Kingdom and have resided continuously in this country for more than ten years. I find that it would be contrary to their best interests to be required to leave. The children have clearly developed social, cultural and educational ties that I find that it would be inappropriate to disrupt, in the absence of compelling reason to the contrary cf. Azimi-Moayed at [13](iii). I do not consider that the fact that the first Appellant, their mother, is an overstayer constitutes a compelling reason so as to outweigh her children's best interests, in light of the judgment in ZH (Tanzania) [2011] UKSC 4. It follows that, in light of section 117B(6) of the NIAA 2002, the public interest does not require removal of the first Appellant and thus her removal to Ghana would not be proportionate.
9. I find that First tier Tribunal Judge Miller erred materially in law. I substitute a decision allowing the appeals of all three Appellants.

Deputy Upper Tribunal Judge Chapman

28 September 2016