Tribunal decisions

The decision

IAC-HX-DML-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/07901/2015
IA/07912/2015
IA/07913/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 July 2016
On 2 November 2016

Before

upper tribunal judge conway

Between

SAMEER [L] (FIRST APPELLANT)
SALIMA [L] (second appellant)
[S L] (Third appellant)
(ANONYMITY ORDERS NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr Blake
For the Respondent: Mr Bramble

DECISION AND REASONS
1. The Appellants are citizens of India. They are husband, wife and child born in 1972, 1979 and 2003 respectively.
2. They appealed against the decision of the Respondent on 12 February 2015 to refuse to grant them leave to remain and to remove by way of directions.
3. In summary, the immigration history is that the first Appellant was granted entry clearance as a visitor in October 2002 valid until April 2003; the second Appellant was granted entry clearance as a visitor in August 2005 valid until August 2006 with the third Appellant as her dependant.
4. They overstayed.
5. In July 2011 the first Appellant applied for leave to remain on Article 8 grounds with the second and third Appellants as dependants.
6. This was refused in August 2011. Following a hearing in May 2012 their appeals were dismissed.
7. In September 2012 the first Appellant sought leave to remain outside the Rules with the second and third Appellants as dependents. This was refused in June 2013.
8. In February 2014 the Respondent reconsidered the application and maintained the refusal as the Respondent did again in August 2014.
9. In December 2014, following a Consent Order the application for leave to remain of September 2012 was again reconsidered and refused. They appealed.
10. Following a hearing at Hatton Cross on 9 September 2015 Judge of the First-tier Veloso dismissed the appeals under the Immigration Rules and under Article 8.
11. Her findings and reasons are at paragraph [21] ff.
12. She took as her starting point (at [25]) the dismissal of the earlier appeal in May 2012 and a finding therein:
"Considering the family's personal history, character and conduct, I can only conclude that in many respects it is admirable in that the family have done little other than trying to make a living for the sake of their son. Nevertheless, it is clear that from the outset that was their aim and it was only a very short time after they came here that the first Appellant started working (without permission to do so) and the couple have made little pretence that they were ever, in fact, genuine visitors. This means that the whole of their stay here was premised on the ultimate intention to stay in the United Kingdom and is more calculated, I find, that they tried to lead me to believe."
13. Judge Veloso went on to find that "there has been no change to the first and second Appellants' particular circumstances as found in the previous Decision over 3 years ago" [26].
14. She then noted (at [27)] that the third Appellant "has now been in the United Kingdom for over 7 years, which constitutes a key change of circumstance from that presented (before the previous Tribunal) and an important consideration in the balance."
15. The judge went on to consider the appropriate provision under the Rules for the third Appellant namely, paragraph 276ADE(1)(iv). It has not been suggested that the parents would satisfy 276ADE(1)(vi). She noted a letter from the third Appellant in which he described his wishes and feelings particularly if he had to return to India [30].
16. At [31] the judge noted that the third Appellant attends religious school and the mosque "which denotes a familiarity with the religion and culture in India" which "means he has not forgotten or become distant from his home country, where he furthermore has a number of relatives."
17. The judge next found that he speaks Hindi.
18. She gave "very little weight" to a psychologist's report. Also, that there was no medical evidence that he would suffer significantly in India [35, 36].
19. She found that the circumstances the family would face if returned had been exaggerated, that they have and are in contact with family there, and that there is adequate accommodation there [37]. Also, that in any event, there was no reason why they could not relocate [38]. Further, that there is no reason why the parents would not be able to secure employment in India [39].
20. As for education for the third Appellant, the judge found that "in line with the previous Decision that there is a commitment to free education in India" and that while some schools may charge fees such does not mean all schools do [40].
21. The judge concluded that, considering all the evidence in the round, "the Appellants have not shown it would not be reasonable to expect the third Appellant to leave the United Kingdom and return to live in India. He would be doing so with the first and second Appellants, as part of a very tight and supportive family unit, whose sole focus is his welfare and upbringing" [41].
22. Going on to consider Article 8 outside the Rules and the best interests of the child she found that he had been living in the UK for 10 years since the age of 2 years. He is making good progress and had "not reached a critical stage in his education" [45]. While, (at [46]) she noted the contents of a letter by the third Appellant in which he said he has come to consider the UK as his home and where he wants to remain the previous Tribunal had found no evidence of any links with the community "outside his schooling and some play with friends and outside acquaintances."
23. The judge considered that it is "in his best interests to remain with the first and second Appellants, be it in the United Kingdom or in India and that it would not go against his best interest to return to India. There has been no suggestion that the first and second Appellant would be unable to care for him; to the contrary, all evidence shows they have and continue to focus completely on his wellbeing and upbringing" [47]
24. The judge ended by considering s117B and in respect of 117B(6) stated "on the basis of my detailed assessment of paragraph 276ADE(iv) and section 55 ? I find it would not be unreasonable to expect the third Appellant to leave the UK."
25. The Appellants sought permission to appeal which was granted on a restricted basis by a judge on 2 June 2016.
26. At the error of law hearing before me Mr Blake, for the Appellants submitted that the starting point is PD and Others (Article 8 - conjoined family claims) Sri Lanka [2016] UKUT 108 where the facts were similar to the present case. In assessing reasonableness the analysis had to be fact sensitive. In that regard the judge's approach had been wrong and some of her findings were erroneous. She had made assumptions that were not open to her. First, on education the judge referred to the Country Information and Guidance (2015) as indicating a commitment to free education. There was no such reference. In fact such free education stops at age 14 years. Also, she had failed to note that knowledge of Marathi would be required which the third Appellant does not have. The result would be he would not be able to access education.
27. Second, the judge's findings at [31] were not sustainable. To say that the child had not forgotten or become distant from India because he was attending religious school and the mosque which indicated familiarity with the religion and culture, was inadequately reasoned.
28. The appropriate finding was that the child had no connection with India. His history was clearly one of belonging to the UK. There was significant evidence not taken into account by the judge that he is effectively British. The fact that the parents were unlawful overstayers had to be given undeniable weight but their behaviour should not be visited on the child.
29. In conclusion the judge's decision was based on unsustainable findings of fact and it should be set aside and remade to be allowed.
30. Mr Bramble's submission was that the judge's approach had been correct. She had properly taken into account the exaggerated circumstances found by the earlier Tribunal and had dealt adequately with the issue of education. Whilst there did not appear to be reference to education in the country report it was not clear what background information on education on India was before her. The findings on the child having a measure of connection with India through attendance at religious school and the mosque were open to her. Further, it was clear that the judge had taken into account that the child has been here more than 7 years. She was entitled on the evidence before her to conclude that his connection with the UK in terms of education and society was limited. All in all the challenge amounted merely to a disagreement with the decision.
31. In considering this matter the correct approach to the reasonableness test is set out in MA (Pakistan) & Ors v UT (IAC) [2016] EWCA Civ 705 at [46];
"? the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise ? After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK. That may be less so when the children are very young because the focus of their lives will be on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child's best interests will be to remain in the UK with his parents as part of the family unit, and that must rank as a primary consideration in the proportionality assessment."
32. However, at [47] the Court continued "Even when the child's best interests are to stay, it may still be not unreasonable to require the child to leave. That will depend upon a careful analysis of the nature and extent of the links in the UK and in the country where it is proposed he should return. What could not be considered, however, would be the conduct and immigration history of the parents."
33. In looking at the judge's decision, as indicated the crux of the submissions is that in considering the child's links in the UK and in India the judge reached findings that were not properly open to her.
34. The first is that because he attended a religious school and mosque it could be concluded that he had not forgotten or become distant from his home country. As he had arrived in the UK at the age of 2 years he could have had no recollection or knowledge of India.
35. I agree with Counsel that saying the child had not "forgotten" his home country makes little sense when speaking of someone who came here aged 2. However, what I take the judge clearly to mean is that by being brought up in his own religion and attending religious school and the mosque, the child will have a connection with the religion and culture of India. In that regard also, the child speaks Hindi and there are family ties and accommodation in India. The judge's findings on this matter were open to her on the evidence.
36. As for education it is correct that in the Country Information and Guidance there is no reference to India having free education. The situation appears to be that free education is available up to the age of 14 years. According to an article in the Appellant's bundle "29% of Indian children are privately educated. With more than 50% of children enrolling in private schools in urban areas the balance has already tilted towards private schooling in cities, and even in rural areas nearly 20% of the children in 2004-2005 were enrolled in private schools." Thus, the child now 13 years, may have to pay fees. However, I do not find the error by the judge about free education to be material. She found that the parents who are "financially independent" [49] would be able to work, indeed, the mother has a degree, [39] and would thus be able to support the child. As for the need to speak, read and write Marathi, whilst the judge did not deal specifically with this I note from the article in the Appellant's bundle that at private schools "the medium of education is often English, but Hindi and/or the state's official language is also taught as a compulsory subject." In any event she finds that the family could if they wished relocate to "different accommodation, a different village, city or even part of India." Such finding was open to her on the evidence. It was found that the Appellant had been untruthful about knowing only English and not Hindi. The failure to address the matter of the child not having knowledge of Marathi (which is spoken mainly in Maharashtra) was not a material error.
37. As for his links with the UK it is clear the judge was aware that the child has been living in the UK for more than 7 years [45] and its significance [27]. She found that despite the length of stay there was limited evidence to show ties with the community beyond schooling and friends. Also, that at his relatively young age while he is making good progress he has not reached a critical stage in his education.
38. These again were findings she was entitled to reach on the evidence.
39. I conclude that for the reasons given that the judge was entitled to reach the decision in considering reasonableness under the Rules and under Section 117B(6).
40. It may be that other judges would have stuck the balance differently, but the question is whether this judge reached a conclusion which was not open to her. Given that she was required to have regard to the wider public interest in effective immigration control in my judgment, she did not.
Notice of Decision

The decision of the First-tier Tribunal does not show any material error of law and the decision dismissing the appeals shall stand.

No anonymity order is made.

Signed Date

Upper Tribunal Judge Conway