Tribunal decisions

The decision

IAC-CH-SA-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/09302/2015
IA/09303/2015
IA/05516/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30th November 2016
On 21st December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVIDGE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

l s (1)
m m s (2)
m s (3)
(anonymity direction MADE)
Respondents

Representation:
For the Appellant: Mr C Avery, Home Office Presenting Officer
For the Respondent: Mr N O'Brien

DECISION AND REASONS

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
1. Anonymity having previously been ordered in the First-tier Tribunal and there being no application to remove the order, I see no reason to do so and the order remains in place. Unless and until a Tribunal or a court directs otherwise, the Respondents are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the Appellant and to the Respondents. Failure to comply with this direction could lead to contempt of court proceedings.
2. The Appellant Secretary of State appeals with permission a decision of Designated Judge of the First-tier Tribunal Samimi, promulgated on 15th April 2016. The judge allowed the Appellants' appeal against a refusal of leave to remain on the basis of continuous residence with reference to the Immigration Rules at paragraph 276B of HC 395 as amended.
3. At the time when First-tier Tribunal Judge Parkes granted permission the grounds of the Secretary of State's application were missing. The judge read the decision and identified concerns in the judgment as follows:
"The decision needlessly and unhelpfully recites the law, paragraphs 10 to 16 could have been condensed to a single short paragraph and paragraphs 18 and 20 do not add anything either. The decision does not concentrate on the principal issues. The overall immigration history of the family had to be addressed and the adults' history are highly relevant factors, MA (Pakistan) and EV (Philippines). Also the question of whether it was reasonable to expect the child, a national of Sri Lanka, to live there was not addressed and had to be assessed before the question in relation to the adults could be addressed."
4. The grounds of the application which fortunately had been reattached to the file by the time it came for hearing before me, were that there was a material misdirection in law in the context of Article 8 because:
"(i) The FtTJ failed to determine whether the minor Appellant (child) met the requirements of paragraph 276ADE first and then determining whether the parents met the Immigration Rules or otherwise. (PD and Others (article 8 - conjoined appeals family claims) Sri Lanka UKUT 00108 (IAC)).
(ii) In particular there is a failure to evaluate whether it was reasonable to expect the child to leave the UK. (paragraph 276ADE(iv)).
(iii) The FtTJ failed to evaluate the best interests of the child (section 55 Borders Act 2009).
(iv) The Judge failed to evaluate the "reasonableness question" in accordance with EV Philippines [2014] EWCA Civ 874 and assess the public interest considerations ie the cost of the education of the child in the UK, the family's connections to Sri Lanka, the ability of the family to re-integrate into life in Sri Lanka, the child is not British, and the adult appellants did not meet the immigration rules.
(v) The FtTJ erred in failing to consider and adequately assess section 117 (B) (6) properly. Paragraph (6) (b) requires the Tribunal to determine whether it would be reasonable to expect the child to leave the UK. There are simply no findings on this matter."
5. Mr Avery summarised the grounds succinctly as a criticism of the judge's approach to the legal framework. The judge should have dealt with the Private life position of the minor appellant under the rules, with reference to paragraph 276ADE first, and in that context made a rounded decision as to whether it would be reasonable to expect him to go to Sri Lanka, taking account of his best interests as informed by his position here and as it would be in Sri Lanka, and the position of his parents who had not basis to be here under the rules. There is no express consideration of the rule as it applies to the child or any express finding as to what his best interests are. On its face if the position of the child did not lead to a grant of his appeal under the Rules, and at paragraph 15 the judge identifies that she is going outside of them, it was wrong for the judge to allow the appeal on Article 8 grounds without even identifying what it was about the circumstances that were exceptional and compelling requiring her to go outside of paragraph 276ADE.
Discussion
6. Contrary to the tenor of the grounds and Mr Avery's submission I am satisfied that the judge here did not need to start with the private life position of the child. The grounds fail to read the decision as a whole.
7. Unlike the case of PD relied on this is not a case where the adults were overstayers and with no entitlement to remain under the rules where a judge found that it was appropriate to allow them to piggy back on the circumstances of their minor child.
8. Reading the decision as a whole it is quite clear that the matter which was foremost in the judge's mind was the historical position of the adult Appellants and in particular the adult male Appellant. The complaint that the Article 8 Assessment was not viewed through the lens of the Rules completely misreads the decision. The judge's starting point is that this was an application made under the long residence rule at 276 B. There was no application under 276ADE.
9. There was pertinent history. The Appellant had initially made this application on 24th September 2013. At the time he had leave to remain and so lawful residence continued by virtue of statutory extension of leave. The leave he enjoyed at the time was as a Tier 2 Migrant. Judge Chamberlain heard the Appellants' appeal against a refusal of that application and concluded that the decision was not in accordance with the law because the Respondent had failed to appreciate that she had a discretion to overlook a period of formal overstaying, and that in any event the Respondent had incorrectly calculated the period of overstaying as being between June 2007 and September 2009, when in fact it was considerably less: between June 2007 and April 2008.
10. Judge Chamberlain, in his judgment dated 10th September 2014, confirming what was said in the earlier Court of Appeal judgment of 24th November 2008 concerning the male Appellant, (both of which were in the Respondent's bundle), found the Appellant's leave to remain as a work permit holder was curtailed because his employers deviated from the letter of the work permit in the tasks that they required the Appellant to do, and that they ought to have applied for a new work permit. The Court of Appeal saw much force in the submissions that the Appellant was a hardworking young man who had come to this country and behaved responsibly, applying himself diligently to his job and deserving of another chance. In the event there was to-ing and fro-ing between the Respondent and the employer during the course of which the Respondent changed her mind concerning the formalities of the documentation, until finally in September 2009 a further five-year period was approved.
11. When the Appellant subsequently made his application for indefinite leave to remain (ILR), he still had six months leave outstanding. The Respondent delayed making, what in the event was an unlawful decision, until after the expiry of his leave. As result of the Respondent's unfair processing of the Appellant's ILR application, the Appellant did not make an in-time, lesser application, for an extension of Tier 2 leave. Following the refusal of his indefinite leave to remain application which, unsurprisingly, the Appellant appealed, he made an effort to correct that position but his Tier 2 application was treated as invalid, on the basis that he had an outstanding appeal.
12. Before Judge Chamberlain in 2014, and as acknowledged before the First-tier Tribunal and myself in the current proceedings, it is common between the parties that the Tier 2 application would have been granted. Following which the Appellants would in the meantime have become entitled, all things being equal and it is not suggested by the Respondent they were not, to indefinite leave to remain by dint of the length of residence under the Tier 2 provisions.
13. Although these grounds complain that the judge's decision does no more than reach a hasty conclusion in respect of the child without proper reference to whether or not it was reasonable to expect the child to leave, they entirely overlook that the main concern is quite clearly that the Appellants' opportunities, which were plainly acknowledged as being positive, to obtain indefinite leave to remain on the basis of an entitlement under the Immigration Rules have been frustrated by the Respondent's inept handling of the family's applications over a significant period of time.
14. Designated Judge Samimi clearly found that it was that history which operated as compelling not just in providing reasons to go outside of the Rules in the sense of not finding those circumstances adequately addressed by a consideration under the Rules, but compelling in the sense of commanding that leave to remain should be granted.
15. Whilst the factor of the couple having a child born in the United Kingdom on 18th October 2006 and so 8 years and 3 months old, as at the date the respondent revisited the earlier unlawful decision on 20th January 2015, and 9 years 6 months as at the date of the judge's decision on 15th April 2016, was incorporated into the judge's considerations, this case was not one which was argued as being predicated or hinging on the private life rights of the child. It was a case which turned on the position of the adults.
16. The parties framed the arguments in the context of the rule at 276B, inviting the judge in the event that the period of overstay meant that the rules was not met, to move on to decide whether or not leave should be granted on Article 8 grounds outside of the rule under Article 8. The Respondent's representative recognised the force of the argument in respect of the poor dealing, not only of the 2013 application the subject of the appeal, but also the Tier 2 point, and did not significantly challenge the Appellant's submission that the judge was bound to look beyond the rule. The arguments were all about the fifth question in Razgar, i.e. that of proportionality. It is in that context that the judge considers the position of the child. The conclusion that the judge reached was open on the evidence, and is consistent with the IDIs, and a long line of jurisprudence.
17. Whilst the judge could have better articulated her findings to incorporate an express best interests finding, and provided a more concise articulation that the immigration status of the parents was not a significant countervailing factor, the matters are satisfactorily explained.
18. The reality is this was a child whose circumstances plainly fell within the parameters of a line of case law to the point that the length of residence, in the context of cultural integration as demonstrated by the long schooling here, and expected childhood experiences, the understanding that the child's best interests are served by remaining here, and having his parents with him, follows inexorably. That is a position which is foreshadowed in the IDI. Although a best interest conclusion is not determinative of the position in respect of the child's own private and family life rights, or that of his parents, because there may be countervailing factors, where the judge has plainly found that there are none, not least because there are the immigration control factors weighted significantly in favour of the adult Appellant, no further detailed articulation is required.
19. In short the decision makes perfectly clear to the Respondent why she lost this case which resulted in historic injustice. To come to the Upper Tribunal in this context is simply an effort to argue that a sustainable conclusion should be set aside, and the appeal reheard, because a different structure from that adopted by the Respondent in making her decision, and as advocated by her representative on the day ought to have been adopted.
20. Having had the benefit of detailed consideration of the evidence before the First-tier Tribunal and having had the assistance of both of the representatives before me confirming the immigration history, for all the reasons set out above, I too would reach the same evaluation of where the balance between the public interest in enforcing the Immigration Rules including issues of validity of applications, and the private and family life rights of this family lay, and conclude that the decision to remove is a disproportionate interference with the Adult Appellants' private and family life rights, as well as that of the child, because had it not been for the unreasonable historical processing of the Appellant's applications by the Respondent they would have had a straightforward route to settlement. There are compelling reasons as to why the Respondent should have granted leave to remain.
Decision
21. The decision of the First-tier Tribunal allowing the Appellants' appeals on Article 8 grounds reveals no error of law and stands.

Signed Date 21/10/2016

Deputy Upper Tribunal Judge Davidge