Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/06278/2015
IA/06396/2015
IA/06400/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 July 2016
On 17 August 2016

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

S K
(and two child dependents)
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves child welfare issues. I find that it is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Representation:
For the Appellant: Mr B. Singh, Counsel instructed by MTG Solicitors
For the Respondent: Mr N. Bramble, Senior Home Office Presenting Officer

DECISION AND REASONS

Background

1. The appellant appealed against the respondent's decision dated 5 February 2015 to refuse a human rights claim. First-tier Tribunal Judge R. Sullivan ("the judge") dismissed the appeal in a decision promulgated on 12 November 2015.

2. The appellant appeals against the First-tier Tribunal decision on the following grounds:

(i) The judge erred in failing to place sufficient weight on the difficulties the children had already faced during the breakdown of their parents' marriage in the UK as part of the overall proportionality assessment. The judge failed to consider the fact that the children are likely to face hardship if returned to India with their mother, who has no assets or home to live in. The judge failed to conduct an adequate assessment of the best interests of the children.

(ii) The judge erred in her assessment of paragraph 276ADE. The relevant test at the date of the appeal was whether there were "very significant obstacles" to reintegration and not whether the appellant had "no ties with India".

Decision and reasons

3. After having considered the grounds of appeal and oral arguments I satisfied that the First-tier Tribunal decision did not involve the making of an error on a point of law.

4. A proper reading of the decision shows that the judge gave detailed consideration to all the circumstances and the evidence before her. The judge directed herself to the correct legal framework relating the assessment of Article 8 claims [8-16]. In particular, she reminded herself that the best interests of the children are a primary consideration and must be considered first. They can be outweighed by the cumulative effect of other considerations such as the need to maintain firm and fair immigration control, which might include a parent's immigration history or the precarious nature of the family's status. She bore in mind that, as part of the assessment of the best interests of the children, they should not be blamed for the actions of their parents [14].

5. The judge quite clearly took into account the arguments put forward by the appellant [7, 23 & 31-39]. In doing so she took into account the principles outlined in ZH (Tanzania) v SSHD [2011] UKSC 4, EV (Philippines) v SSHD [2014] EWCA Civ 874 and Azimi-Moayed & Others (decisions affecting children; onward appeals) [2013] UKUT 00197.

6. The judge considered the difficult family background in some detail with reference to the evidence contained in the appellant's bundle [41-49]. It is quite clear from her consideration of the evidence that she had in mind the background relating to allegations of domestic violence as well as the difficulties that the appellant had in caring for the children, which led them to be taken into foster care for periods of time. However, she also took into account the improved picture since the appellant separated from her husband.

7. No specific challenge has been made to the judge's findings of fact. It was open to the judge to reject the appellant's claim that she was ostracised from her parents and siblings in India given that she visited them with the children in September 2013 [51]. The appellant's claim that she would return as a lone woman, and would face undue hardship with the children as a result, amounted to little more than a bare statement and did not appear to be supported by any background or other evidence [55]. There was no evidence to suggest that her in-laws would seek to take the children from her [56]. In view of the dearth of evidence relating to the conditions she might face on return to India the judge's findings could not be said to be outside a range of reasonable responses to the evidence.

8. In applying the five-stage approach in R v SSHD ex parte Razgar [2004] UKHL 27 the judge gave specific consideration to the possibility of separation from their father [59]. She was aware of the fact that he had a separate appeal. If he chose to remain in the UK while he pursued that appeal then the children would be separated from their father. However, given that he was appealing in a temporary category (Tier 4) that did not give rise to any expectation of long term settlement in the UK it was open to the judge to conclude that their father could return to India if he wished to continue to have contact with the children [66].

9. The judge made a separate assessment of the best interests of the children, which was broadly consistent with the approach suggested by the Court of Appeal in EV (Philippines) [61-62 & 66]. It is clear from her findings that she had in mind the difficult family history and took into account the fact that the children had already seen more disruption to their lives than was desirable. However, it was open to her to consider other public interest factors in order to assess whether they cumulatively outweighed the best interests of the children. In doing so she was obliged to take into account the public interest considerations outlined in section 117B of the Nationality, Immigration and Asylum Act 2002 ("NIAA 2002") [63-65].

10. I conclude that the points raised in the grounds of appeal amount to disagreements with the outcome of the judge's decision but fail to identify any errors of law that would have made any material difference to the outcome of the appeal. It is understandable that the appellant disagrees with the decision but the judge's findings were within a range of reasonable responses to the evidence.

11. It is accepted that the judge erred in considering the old test of "no ties" under paragraph 276ADE(1)(vi). Since 28 July 2014 the private life test for those who are over 18 and who have not lived in the UK for a continuous period of 20 years is that there must be "very significant obstacles" to the applicant's integration into the country to which she would have to go if required to leave the UK. The test is somewhat different to the previous test but still imposes a relatively stringent threshold. An applicant must not just face obstacles but "very significant" obstacles to integration on return.

12. Even if the judge erred I find that the error was not likely to make any material difference to the outcome of the appeal given her findings of fact. The judge took into account the fact that the appellant had only lived in the UK for a relatively short period of time. She speaks little English and had struggled to integrate in the UK. The judge did not accept that the appellant had been ostracised from her parents and siblings in India. No evidence had been produced of the country conditions in India. The judge was satisfied that there was insufficient evidence to show that the appellant and her children would be at real risk of harm if returned to India. In such circumstances it is not arguable that the judge would have come to any different conclusion under paragraph 276ADE(1)(vi) if the "very significant obstacles" test had been applied.

13. I was informed that the father of the children has now made an application for an EEA residence card but no further information was provided. The information was not before the First-tier Tribunal and cannot have any bearing on this particular appeal.

14. For the reasons given above I conclude that the First-tier Tribunal decision did not involve the making of an error on a point of law.

DECISION

The First-tier Tribunal decision did not involve the making of an error on a point of law

The First-tier Tribunal decision shall stand

Signed Date 16 August 2016

Upper Tribunal Judge Canavan