Tribunal decisions

The decision

IAC-PE-SW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/06134/2015
IA/06135/2015
IA/06136/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7th October 2016
On 22nd November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE LEVER

Between

JAMAL [S] (FIRST APPELLANT)
AASIA [J] (SECOND APPELLANT)
[T S] (THIRD APPELLANT)
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Miss Praisoody
For the Respondent: Mr Walker

DECISION AND REASONS
Introduction
1. The First Appellant born on 14th August 1974 is a citizen of Pakistan. The Second Appellant born on 14th February 1981 is the First Appellant's wife and also a citizen of Pakistan. The Third Appellant is their daughter and born on 22nd August 2008 and also a citizen of Pakistan. The Appellants had made application on 5th October 2014 for leave to remain in the United Kingdom as a student and dependents of a student. That application had been refused by the Respondent and the Appellants had appealed against that decision. The appeal was heard at Richmond on 24th February 2016 in front of First-tier Tribunal Judge Young. At the hearing it was conceded on the Appellants' behalf that they could not succeed under the Immigration Rules and therefore the appeal proceeded simply on the basis that removal would be a disproportionate breach of their rights under Article 8 of the ECHR. The judge dismissed the appeals.
2. The Appellants sought permission to appeal that decision and that application was refused by First-tier Tribunal Judge Saffer on 18th August 2016. The judge concluded that there were no merits in the ground and whilst had not specifically used the phrase the child's best interests (the basis of the application) the judge was plainly aware and had considered such matters.
3. The Grounds of Appeal were renewed and on 12th September 2016 Upper Tribunal Judge Canavan said that it was arguable that the First-tier Tribunal had erred to give adequate consideration to the best interests of the child. The matter came before me in accordance with directions to firstly consider whether or not the First-tier Tribunal had made an error of law.
Submissions on behalf of the Appellant
4. Miss Praisoody began her submissions by stating that both the Respondent and the First-tier Tribunal Judge had failed to assess the position of the child and parents on return to their home country. It was said by Miss Praisoody that in all likelihood the adult Appellants would have sold their home in order to come to the UK and would be destitute upon return and that level of destitution would adversely affect the child. I asked Miss Praisoody where the evidence for such assertions was contained and it transpired when I examined the adult Appellants' witness statement and a summary of the oral evidence at the appeal that no such matters had been raised by the Appellants and indeed when looking at the First Appellant's witness statement there was almost an entire absence of evidence concerning the circumstances in Pakistan or that which they may face on return to Pakistan. It is not the function of a representative to make assertions that are neither based on evidence or any discernable instructions or to involve themselves in pure speculation.
Submissions on behalf of the Respondent
5. Mr Walker essentially adopted the approach that had been taken by the First-tier Tribunal Judge who had refused the application.
6. At the conclusion I reserved my decision to consider the submissions raised in this case. I now provide that decision with my reasons.
Decision and Reasons
7. The First Appellant had come to the United Kingdom in about 2009 as a student and thereafter his wife and child had come to the UK in 2010. It is clearly the case therefore that the Appellants had only ever had a temporary basis for remaining in the UK and that given the First Appellant had arrived as a student the proper inference is that he would have indicated an intent to return to his home country on completion of his studies. There has never been therefore any basis for presuming that their time in the UK would be other than a relatively short temporary period. The Appellant's right to remain in the United Kingdom concluded on 6th October 2014. The Appellant's application to remain, made on 5th October 2014 was not only refused by the Respondent but quite clearly could never have succeeded under the Immigration Rules as the First Appellant did not have the necessary requisites to continue as a student. That point was conceded by the Appellant's representative at the start of the appeal before the First-tier Tribunal Judge. Again it is a proper inference that from the outset of the application made the Appellants and/or the representative would have known that the application was bound to fail under the Immigration Rules and therefore in reality in October 2014 the Appellants were attempting to remain permanently in the UK by use of Article 8 of the ECHR.
8. At the time therefore of, perhaps that somewhat cynical application, the child had been in the UK for only four years but at the time of the appeal hearing had been in the UK for some six years.
9. The judge had set out the evidence in this case and in particular had set out the evidence relating to the position of the child. The judge had further noted and it was accepted that the family would be removed as a unit to Pakistan and therefore in that sense there would be no interference with family life and the case was largely therefore focussed on private life.
10. It is questionable whether it was even necessary for the judge to look at Article 8 in this case. The case did not succeed under the Immigration Rules and accordingly there would only have been a need to look at the case outside of the Rules if there existed compelling circumstances so to do. It is difficult to identify compelling circumstances in this case in what is a not unfamiliar set of circumstances.
11. However in fairness to the Appellants the judge had looked at Article 8 outside of the Immigration Rules and had therefore by necessity also considered Section 117 of the 2002 Act. The judge had properly identified the law and the statutory features of Section 117B referred to by the judge at paragraphs 47 and 48 of the decision.
12. Given the Respondent was considering removal of a child it was necessary for the Respondent to consider Section 55 of the Borders Act 2009 and "the best interests of a child". The submission raised by Miss Praisoody is that neither the Respondent nor the judge considered the best interests of the child nor made the necessary enquiries and as indicated above seemed to rely upon speculative facts to support her submissions.
13. The judge did not specifically refer to the phrase "best interests of a child". He does not need to do so in those terms. Indeed that phrase has become so overused, misconstrued, and well-worn that it long since lost any proper perspective.
14. The Respondent had considered the best interests of the child in the refusal letter. It is not the case therefore that the Respondent had simply ignored that fact. The consideration is not detailed but that is for fairly obvious reasons.
15. These Appellants were legally represented. If it is being suggested that the best interests of a child lie in remaining in the UK then it seems fairly obvious that two classes of evidence need to be provided in some detail. Firstly there needs to be evidence as to the activities, lifestyle and position of the child in the UK and secondly there needs to be evidence provided of the circumstances within the home country so that an individual looking at the alleged best interests of a child can compare and contrast to arrive at an informed decision.
16. The evidence of the child's position in the UK had been provided. It disclosed nothing of great significance. It merely demonstrated the child was being educated in the UK and had a circle of friends and some social life. As indicated above there was in reality no evidence provided as to the circumstances for this family on return to Pakistan.
17. The judge was clearly appraised of all the available evidence relating to the child. The fact that that may be relatively brief is neither the fault of the judge or the Respondent but a matter for the Appellant to produce evidence of any assertions or position they seek to claim. It would be nonsense and unrealistic to suggest that such evidence could or should be provided from any other source.
18. The judge had concluded that this whole family could be returned to Pakistan. That was an entirely proper and reasonable decision.
19. In seeking to suggest that the judge had not considered the "best interests of the child" neither the Grounds of Appeal nor the Upper Tribunal Judge granting permission identifies what evidence or aspects of the case the judge had failed to consider. The simple repetition of a well-worn phrase does not disclose that any material error of law was made in this case and First-tier Tribunal Judge Saffer who had refused permission to appeal in the first instance had correctly and accurately identified the position.

Notice of Decision
20. There was no material error of law made by the judge in this case and I uphold the decision of the First-tier Tribunal.
21. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Lever

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Lever