Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09103/2015
IA/09107/2015
IA/09124/2015
IA/09127/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On July 6, 2016
On August 10, 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

ADIL [S]
FOZIA [B]
[S S]
[H S]
(NO ANONYMITY DIRECTION)
Appellants
and

THE SECRETARY OFF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Brown, Counsel, instructed by Farani-Javid Taylor
Solicitors
For the Respondent: Mr Bramble (Home Office Presenting Officer)

DECISION AND REASONS

1. The Appellants were, at the time of application, citizens of Pakistan. On December 23, 2014 the appellants applied for leave to remain on the basis of family and private life under Appendix FM of the Immigration Rules. The respondent refused their applications on February 17, 2015 and required them to leave the United Kingdom.

2. The appellants appealed those decisions under section 82(1) of the Nationality, Immigration and Asylum Act 2002 on March 4, 2015.

3. Their appeals came before Judge of the First-tier Tribunal Grant (hereinafter referred to as the Judge) on February 1, 2016 and in a decision promulgated on February 5, 2016 she refused their appeals under the Immigration Rules, article 3 and 8 ECHR.

4. The appellants lodged grounds of appeal on February 17, 2016 submitting the Judge had primarily erred in her approach to the best interests of the children although other grounds were raised.

5. Permission to appeal was granted by Judge of the First-tier Tribunal Landes on July 13, 2016 who found it was arguable the Judge's approach to the best interests of the children was flawed albeit she found the other grounds had less force.

6. The matter came before me on the above date and I heard submissions from both Mr Bramble and Ms Brown.

7. No anonymity direction has been made.

SUBMISSIONS

8. Ms Brown adopted the grounds of appeal and submitted the grounds established the Judge had primarily erred in her approach to Section 55 of the Borders, Citizenship and Immigration Act 2009 and that this error meant the assessment carried out in paragraphs [31] and [32] of her decision was flawed.

9. Ms Brown reminded the Tribunal that:
a. [HS], the eldest child (the fourth named appellant), had been nine-years of age at the date of hearing and was just was two months short of his tenth birthday. He, like his siblings, had been born in the United Kingdom and they had all spent their life here.
b. The third-named appellant was eight years of age at the date of hearing.
c. The first and second-named appellants came to this country legally and had remained here lawfully throughout.

10. Ms Brown submitted that the Judge erred in her approach in paragraph [32] of her decision when she stated, "? it was perfectly reasonable to expect children to return to Pakistan with their parents" and she referred to the decision of PD and others (Article 8-conjoined family claims) Sri Lanka [2016] UKUT 00108 (IAC) and in particular, paragraphs [18] and [24] of that decision. She submitted the correct approach was summarised in paragraph [25] when the Tribunal stated:
"? We consider that the decision maker could not then proceed to determine the son's application in isolation from the others, since the application of the criterion of reasonableness behoved the official to evaluate all three claims in the round and determine them together. The answer to the question of whether the son could reasonably be expected to leave the United Kingdom could not realistically or sensibly be answered without first examining what the future was likely to hold for all three family members."

11. At paragraph [30] of PD the Tribunal stated:
"The four dominant factors, summarised, are his length of residence in the United Kingdom, his full integration in United Kingdom society, his age and his minimal ties with his country of origin."

Ms Brown submitted the Judge had failed to attach sufficient weight to the fact [HS] had been educated in the United Kingdom, had lived all his life here and was fully integrated.

12. Ms Brown further argued the Judge erred by concluding that as the parents were returning the children could also return. She had to have had regard to the factors in PD (even though it had not been promulgated at the date of hearing).

13. Ms Brown also submitted the application by the Judge of the principles set out in EV (Phillipines) and others v SSHD [2014] EWCA Civ 874 also amounted to an error in law because in that case the children were all under the age of seven and the issue was reasonableness of return.

14. In assessing reasonableness of return the Judge wrongly referred to the Tribunal's view in Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 00197 when considering [HS]'s case and wrongly found that [HS] might benefit from being taught in his mother tongue in the absence of any evidence to support that finding. The Judge also failed to attach sufficient weight to the difficulties [HS] experienced despite there being a large bundle of evidence before her. Whilst [HS] was not at the date of hearing a British citizen more weight should have been attached to the fact he would have been awarded British citizenship when considering the public issue of removal.

15. The Judge failed to have regard to regard the fact the family were and continued to be self-supporting and spoke English.

16. As regards the other grounds of appeal she submitted the Judge failed to consider whether there were insurmountable obstacles to return as required by paragraph 276ADE (vi) HC 395. The Judge was wrong to suggest an asylum claim should have been lodged because the claim brought was under article 3 ECHR only.

17. Mr Bramble adopted the Rule 24 response dated July 29, 2016. He submitted the arguments presented amounted to nothing more than a mere disagreement with the Judge's decision and the fact another Judge may approach fact finding differently did not mean there was a material error.

18. The Judge heard the appeal before PD was promulgated but he submitted the Judge's approach was correct in any event. The Judge was clearly aware of the evidence as she referred to it in her decision. She was not required to summarise each and every piece of evidence. Ms Brown submitted the Judge's assessment in paragraph 31 was insufficient but anyone reading that paragraph would be able to see the Judge was aware that [HS] attended school, had speech and language difficulties and that all children had been here since birth. The Judge recognised they were integrated and noted [SS]'s progress. The headnote in Azimi states:
"As a starting point it is in the best interests of children to be with both their parents and if both parents are being removed from the United Kingdom then the starting point suggests that so should dependent children who form part of their household unless there are reasons to the contrary."

19. Ms Brown had argued this approach was wrong and referred to the approach taken in EV. Mr Bramble submitted that the Judge did not err as she merely started from the position that the child's best interests would be with his parents before considering the evidence and making a final decision in paragraphs [34] and [35] of her decision.

20. Mr Bramble submitted the Judge did not state in paragraph [32] that [HS] would benefit from being taught in his mother tongue but merely suggested he might benefit. The Judge did not place herself in specialist role and this option was something she considered in her assessment of the evidence.

21. Paragraph [33] of the decision must be read against the Judge's reciting of facts in paragraphs [6], [7] and [20]. The fact they speak English has been deemed to be a neutral point (AM (Section 117B) Malawi [2015] UKUT 0260 (IAC)). As regarded the other grounds he submitted the Judge addressed British citizenship correctly between paragraphs [18] and [21] as no application had been made at the time the appeal was heard. Finally, he submitted the Judge rejected the First-named appellant's claim about what he feared and found the evidence advanced to be an embellishment. There was no need to consider whether there were significant obstacles.

22. In response Ms Brown accepted adverse findings had been made but she maintained the Judge should have assessed whether there were very significant obstacles and by not doing she erred. She also failed to follow the approach set out in PD or show she had considered all of the evidence.

23. Following submissions, I reserved my decision.

DISCUSSION AND FINDINGS

24. The appellants are father, mother and two children and they each applied for leave to remain under the Immigration Rules and under article 8 ECHR. The first-named appellant also raised an article 3 issue. The Judge dismissed their appeals. Permission to appeal was granted primarily on article 8 and section 55 issues although the right of appeal was not limited.

25. Ms Brown addressed me on all issues. At the end of her submissions she addressed me on the ancillary grounds of appeal outside of article 8 and section 55. In effect she argued that Judge's findings on risk to the First-named appellant and his family were not properly considered I am satisfied they were. The Judge both saw and heard the evidence and in her decision she gave reasons for rejecting that aspect of the claim. A full consideration of the facts is contained in paragraph [26] of the decision and I am satisfied those findings were open to her. Having found they were not at risk the claim under article 3 ECHR would fail and there would be then be no "very significant obstacles" to the first-named appellant returning and the finding at paragraph [24] that the appellants could not satisfy paragraph 276ADE HC 395 was one open to the Judge.

26. Ms Brown, like her predecessor in the FTT proceedings, referred to the fact [HS] would be ten years old shortly after the hearing. However, the Judge had to consider the position as at the date of hearing. At that date [HS] was not a British citizen and was not able to apply for citizenship. The Judge had to deal with the position at the date of hearing (in-country appeal) and she did just that.

27. It would be wrong to argue the Judge had no regard to the period of time he had been here or that he would be able to apply for citizenship. The Judge referred to these matters in her decision and reminded herself that [HS] could apply for citizenship once he was ten years of age. I reject the argument that the Judge should have have considered the appeal on the basis [HS] was soon to be eligible to apply to be a British citizen but I, as did the Judge, accept the length of time here would be a factor to have regard to when assessing any claim under the Rules or article 8 ECHR.

28. Ms Brown's primary submissions are that the Judge's assessment was flawed because she applied legal principles incorrectly when considering article 8 ECHR and section 55 of the 2009 Act.

29. The Judge correctly identified the appellants could not satisfy Appendix FM but went onto consider their claims under article 8 ECHR. The Judge's decision must be considered as a whole as against picking out individual paragraphs of the decision. At the First-tier hearing great weight was placed on [HS]'s circumstances and at paragraph [15] of her decision the Judge commenced her record of the the appellants' submissions by stating, "Submissions on behalf of the appellant were straightforward and short. Mr Turner (representative at the the first-tier hearing) relies on the fact the eldest child [HS] was born on 13 April 2006 and by virtue of the British Nationality Act 1981 ?. [HS] can apply for British nationality and he shall be granted status?."

30. At paragraph [18] of her decision, at the beginning of her findings, the Judge noted the case was presented on the basis it would be disproportionate to remove as [HS] would soon be a British citizen. The Judge considered this approach between paragraphs [19] and [22] concluding, "? the issue for any Tribunal is whether it is reasonable to expect the child to leave the UK a consideration which can form part of the proportionality balancing act exercise under article 8 on the facts of the appeal before me in any event."

31. The Judge contrary to Ms Brown's submissions did not simply say the children should be removed with their parents but made it clear that she had to consider whether such removal was proportionate on the facts of the case which is of course in line with the guidance in both Azimi and PD.

32. Although the Judge found at paragraph [25] that there were no exceptional circumstances requiring consideration outside of the Rules she nevertheless went onto consider article 8 and section 55 issues from paragraph [28] of her decision. She accepted that they had established both private and family lives in the United Kingdom but formed the view that as the family could be returned as a family unit article 8 would not be engaged.

33. The Tribunal in PD made clear that where there are conjoined appeals it is important to look at claims not only singularly but also collectively. The Judge noted the first two-named appellants had spent the majority of their lives in Pakistan where they were born, brought up, educated and where the first-named appellant obtained work. The Judge previously found paragraph 276ADE(vi) HC 395 was not engaged as there were no very significant obstacles to them returning. At paragraph [31], contrary to Ms Brown's submissions, I am satisfied the Judge considered all of the evidence submitted and whilst it had been open to her to set out in more detail the evidence I find her choice not to do so does not amount to an error. Importantly, the Judge noted the evidence and the issues and before deciding proportionality she considered these facts. She referred in paragraph [32] to the decision of EV. I accept EV concerned children who had been here less than seven years but the principles applied equally apply here. The fact being the Judge was aware of their length of stay here and that they were born here and had never been to their country of nationality. All appellants were Pakistani nationals including the fourth-named appellant.

34. The Judge did not make a finding [HS] would benefit from living in Pakistan but commented he might which is something she could say as his family were Pakistani nationals and they had extended family in Pakistan. The cases quoted in paragraphs [32] and [33] are relevant cases and reflects the fact the Judge was aware of current legislation in place at that time. The finding in paragraph [33] is not a finding against the appellants. It is arguable it reflects the fact that weight should be given [HS]'s situation and pointed out the difference between the third and fourth-named appellant's situations.

35. The Judge pulled all the matters together and what is clear from case law is that if the finding made was one open to the Judge then the mere fact a different Judge may conclude otherwise does not amount to an error in law.

36. Although Ms Brown argued that the Judge had erred I am satisfied that the Judge was fully aware of the family's circumstances. She considered the best interests of the children by considering what awaited the family as a whole in Pakistan and she concluded that these factors outweighed the family's desire to remain in the United Kingdom. The Judge acknowledged Section 17B(6) of the 2002 Act applied but concluded, as was open to her, that it was not unreasonable for the family, all Pakistani nationals, to live in Pakistan. She had regard to the fact the children were well integrated and had been educated here and spoke English and she also had regard to the parents' unblemished immigration histories.

37. Mr Bramble submitted the arguments amounted to nothing more than a mere disagreement and having carefully considered the arguments above, the grounds of appeal and the rule 24 statement I find there is no error in law and I uphold the original decision.

DECISION

38. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law. I uphold the decision and dismiss these applications.

Signed: Dated:

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD

No fee award is made.

Signed Dated

Deputy Upper Tribunal Judge Alis