Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/08020/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 22nd July 2016
On 5th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

MUHAMMAD AHMED AKIF
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent
Representation:

For the Appellant: Mrs Y Chawdhery of Counsel instructed by Prestige Solicitors
For the Respondent: Mr A McVeety, Home Office Presenting Officer

DECISION AND REASONS

Introduction and Background
1. The Appellant appeals against a decision of Judge Saffer of the First-tier Tribunal (the FTT) promulgated on 28th October 2015.
2. The Appellant is a male Pakistani citizen born 12th November 1997, making him 18 years of age. The Appellant was 17 years of age when the FTT heard his appeal.
3. The Appellant arrived in the United Kingdom as a visitor on 11th June 2005 as a dependant of his mother. His mother subsequently made an asylum claim which resulted in the grant of refugee status on 27th September 2007 until 27th September 2012.
4. Prior to the expiry of that leave the Appellant and his mother on 25th September 2012 applied for indefinite leave to remain in the United Kingdom.
5. The Respondent subsequently discovered that the Appellant's mother had used deception when claiming asylum, and this resulted in the refugee status of the Appellant and his mother being cancelled on 26th January 2015.
6. On 5th February 2015 the Respondent refused the application for indefinite leave to remain. On that date the Respondent issued a Notice of Immigration Decision to the Appellant, refusing to vary his leave to remain, and indicating that a decision had been made to remove him from the United Kingdom. A reasons for refusal letter of the same date was issued, although this is addressed to the Appellant's mother, and gives reasons for refusing her application. The Appellant is named in that letter as a dependant.
7. Both the Appellant and his mother appealed, and the appeal was heard by the FTT on 22nd October 2015. The appeal was based upon Article 8 of the 1950 European Convention on Human Rights (the 1950 Convention) outside the Immigration Rules. The skeleton argument submitted on behalf of the Appellant to the FTT relies upon Article 8 outside the rules, and the FTT records that Counsel who represented the Appellants conceded that the appeals could not succeed under the Immigration Rules.
8. The FTT dismissed the appeals which caused the Appellants to apply for permission to appeal to the Upper Tribunal.
9. I will not summarise the grounds submitted on behalf of the Appellant's mother, as in her case permission to appeal was refused. In relation to the Appellant, it was contended that the FTT had accepted that he was not at fault in relation to the deception that was used by his mother to obtain asylum. The FTT was also aware that the Appellant's adult sisters had been granted indefinite leave to remain in the United Kingdom, and therefore he should be treated in the same way.
10. It was contended that the FTT had ignored the fact that the Appellant had lived in the United Kingdom for more than half his life, and had failed to consider his best interests.

11. Permission to appeal was granted by Judge Ford of the FTT and I set out below the grant of permission, which is also a refusal of permission in relation to the Appellant's mother who is referred to as the first Appellant;
"1. The Appellants seek permission to appeal in time, against a decision of First-tier Tribunal (Judge Saffer) dated 28th October 2015 whereby it dismissed the Appellants' appeals against the Secretary of State's decision to refuse their applications for leave to remain on human rights grounds having revoked their refugee status due to deception on the part of the first Appellant in her asylum application.
2. It is not arguable that Judge Saffer erred in respect of the first Appellant. He did consider fully the reasons that she gave for her deception and there is no inconsistency in his findings.
3. However it is arguable the Judge Saffer may have erred in the consideration given to the best interests of the second Appellant who played no part in the deception being a minor when it was practised and who claimed to have entered the UK when he was only 6 and was 17 as at date of hearing.
4. It is arguable that his best interests, the issue of any insurmountable obstacles facing him on his return, the fact that his father was settled in the UK, Home Office policy and/or the issue of the reasonableness of his return to Pakistan were not fully considered.
5. There is an arguable material error of law in relation to the second Appellant only."
12. Following the grant of permission the Respondent lodged a response pursuant to Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008. In summary it was contended that the FTT had not erred in law and had taken into account all relevant circumstances, including the fact that the Appellant had limited contact with his father in the UK, the length of the Appellant's residence in the UK, and the fact that his elder adult sisters resided here. It was contended that the grounds amounted to a disagreement with findings made by the FTT, but disclosed no material error of law.
13. Directions were subsequently issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FTT decision contained an error of law such that it should be set aside.
Oral Submissions
14. Mrs Chawdhery relied upon the grounds contained within the application for permission to appeal, and paragraphs 3 and 4 of the grant of permission. I was asked to find that the FTT had erred in considering the best interests of the Appellant as a child, and the reasonableness of his having to leave the UK.

15. Mrs Chawdhery submitted that the FTT had not taken into account the considerations set out in paragraph 35 of EV (Philippines) [2014] EWCA Civ 874 which provides guidance on factors to be taken into account when considering the best interests of children.
16. Mrs Chawdhery pointed out that the Appellant had not returned to Pakistan since arriving in the United Kingdom in 2005, and his two adult sisters and his father have been granted indefinite leave to remain.
17. With reference to the decision in MA (Pakistan) [2016] EWCA Civ 705 which Mr McVeety had indicated he would rely on, Mrs Chawdhery submitted that even if the Appellant's mother's actions were taken into account when assessing whether it would be reasonable for him to leave the UK, the FTT should still have concluded that his removal would be disproportionate.
18. Mr McVeety relied upon the Rule 24 response and MA (Pakistan) which provides guidance on the correct approach to be adopted when considering whether it is reasonable to expect a child to leave the UK. Although this decision had not been published when the FTT decision was promulgated, Mr McVeety submitted that the FTT had in fact followed the correct approach by taking into account the immigration history of the Appellant's mother.
19. I was asked to note that in paragraph 50 the FTT had found that it was reasonable to expect the Appellant to follow his mother to Pakistan, and adequate reasons for that finding had been given.
20. At paragraph 42 the FTT had specifically accepted the length of time that the Appellant had spent in the UK. The FTT had been entitled to take into account the overall immigration history, and the fact that the Appellant's family had abused the refugee system, and because of the lies told by the Appellant's mother, had received financial support to which they were not entitled, and free education to which they were not entitled.
21. Mr McVeety accepted that the decision may be regarded as harsh, and that many judges would have made a different decision. However, I was asked to accept that there were no relevant considerations that the FTT had not taken into account, and the test was whether the FTT had erred in law, not whether the decision was harsh, and I was asked to conclude that the grounds displayed no error of law in the FTT decision.
22. At the conclusion of oral submissions I reserved my decision.
My Conclusions and Reasons
23. The issue that I am asked to consider is whether the FTT erred in considering the best interests of the Appellant as a child, and whether the FTT erred in considering that it was reasonable for the Appellant to return to Pakistan with his mother.
24. There is reference in the FTT decision and the grant of permission to insurmountable obstacles, but in my view this is not the correct test to be applied, and having read the FTT decision as a whole, I am satisfied that this was not in fact the test applied.
25. The FTT was specifically asked to consider the appeal with regards to Article 8 of the 1950 Convention outside the Immigration Rules. There was a specific concession by Counsel on behalf of the Appellant, that his appeal could not succeed under the Immigration Rules. I note that the Respondent's reasons for refusal letter did not specifically consider the Appellant's application, but addressed the application made by his mother, and referred to him as a dependant. It is not entirely clear to me why the Appellant could not have relied upon paragraph 276ADE(1)(iv) in relation to his private life, as it appears that he had resided continually in the UK for seven years prior to the date of application. The Appellant had entered the UK as a visitor on 11th June 2005, and the application for indefinite leave to remain was made on 25th September 2012.
26. However, paragraph 276ADE(1)(iv) was not relied upon on behalf of the Appellant, and had it been, the test would have been one of reasonableness, which is the test that was considered by the FTT in relation to Article 8 outside the rules.
27. In my view, the correct approach to considering Article 8 outside the Immigration Rules is contained within paragraph 33 of SS (Congo) [2015] EWCA Civ 387 in which it is stated that compelling circumstances would need to be identified to support a claim for a grant of leave to remain outside the new rules in Appendix FM. Because the Appellant was a minor when his application for leave to remain was refused, and at the date of the FTT hearing, the FTT had a duty to consider his best interests as a primary consideration. As made clear in paragraph 29 of ZH (Tanzania) [2011] UKSC 4, considering the best interests will involve asking whether it is reasonable to expect the child to live in another country.
28. When considering whether it is reasonable to expect a child to live in another country the guidance in MA (Pakistan) indicates that regard should be had to the wider public interests, including the immigration history of the Appellant and his parents. With reference to section 117B(6) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) Elias LJ stated at paragraph 45 of MA (Pakistan) "that where the seven year rule is satisfied, it is factor of some weight leaning in favour of leave to remain being granted."
29. The FTT, in my view, considered and took into account all relevant factors. The FTT at paragraph 42 recorded the length of time that the Appellant had spent in the UK, which was more than half his life. The FTT found that his contact with his father was limited to holidays and telephone contact which could continue. The FTT was aware that seven years continuous residence after the age of 4 is a factor of significance.

30. The FTT considered that the Appellant did not have a significant role to play in his nephew's life, and he did not live with his adult sister who was married. It was noted that the Appellant lived with his other adult sister, finding that there was no reason why she could not return to Pakistan because although she had settled status, she is not a British citizen.
31. The FTT found, and this has not been successfully challenged, that the Appellant's mother had not been a witness of truth at the FTT hearing, and found that she did have a sister living in Pakistan. The FTT at paragraph 43 found that the Appellant's family remaining in the UK could visit Pakistan or remain in contact using modern means of communication. At paragraph 44 the FTT is aware of the correct test, which is compelling circumstances, and concluded that there were no such compelling circumstances.
32. The FTT correctly took into account the appalling immigration history of the Appellant's mother when accepting that the Appellant (paragraph 36) was an entirely innocent victim of her behaviour.
33. Although not specifically referring to section 117B of the 2002 Act, the considerations contained therein were clearly considered by the FTT.
34. Lewison LJ at paragraph 58 of EV (Philippines) [2014] EWCA Civ 874 stated;
"In my judgment, therefore, the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world. If one parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted. If neither parent has the right to remain, then that is the background against which the assessment is conducted. Thus the ultimate question will be, is it reasonable to expect the child to follow the parent with no right to remain to the country of origin?"
35. Although there was no reference to EV (Philippines), I find that the approach advocated by Lewison LJ is the approach adopted by the FTT.
36. The FTT identified both positive and negative factors and made reference to these in paragraph 50, concluding that it was reasonable to expect the Appellant to follow his mother to Pakistan "where there is no evidence he would be neglected or abused, or having unmet needs that could not be catered for, or of there being no stable arrangements for his physical care for the remaining twenty days of his minority." The FTT found that the Appellant would have accommodation in Pakistan, that he had the benefit of a British education, and that he could obtain employment or continue his studies. The FTT also considered that if the Appellant wished to study in the UK, he could make an entry clearance application as a student from Pakistan.
37. I agree with Mr McVeety's submission that there are some judges who would have made a different decision in this case. That however is not the test, and in my view the FTT properly assessed all the circumstances, and did not neglect to consider any relevant considerations. The grounds contained within the application for permission to appeal, and the submissions made at the hearing, display a strong disagreement with the FTT decision, but they do not disclose a material error of law.
Notice of Decision

The making of the decision of the FTT did not involve the making of a material error on a point of law. I do not set aside the decision. The appeal is dismissed.

Anonymity

No anonymity direction was made by the FTT. There has been no application for anonymity to the Upper Tribunal and I see no need to make an anonymity order.

Signed Dated 26th July 2016

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The appeal is dismissed. There is no fee award.

Signed Dated 26th July 2016

Deputy Upper Tribunal Judge M A Hall