Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/10087/2015
IA/10093/2015
IA/10099/2015
IA/10112/2015
IA/10122/2015
IA/10083/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4th July 2016
On 2nd August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

samuel [g]
christiana [c]
[s a]
[n g]
[s g]
[b o]
(ANONYMITY DIRECTION NOT MADE)
Respondents

Representation:

For the Appellant: Mr S Walker, Home Office Presenting Officer
For the Respondents: Ms M Crowley, OISC Adviser, Cardinal Hume Centre

DECISION AND REASONS

1. This is the Secretary of State's appeal however I will refer to the parties according to their status before the First-tier Tribunal for ease of comprehension.
2. The Respondent appeals with permission against the decision of First-tier Tribunal Judge Owens promulgated on 22nd December 2015 allowing the Appellants' appeals against the Respondent's decision to refuse leave to remain on the basis of their human rights under the Immigration Rules and Article 8 ECHR.
3. Permission to appeal was granted by First-tier Tribunal Judge Shimmin on three grounds which may be summarised as follows:
(1) It was arguable that the judge erred in his consideration of the best interests of the children.
(2) It is arguable that the judge erred in failing to give adequate reasons on material matters.
(3) It is arguable that the judge erred in taking into account irrelevant factors in reaching her decision.
Error of Law
4. At the close of the hearing I reserved my decision which I shall now give. I do not find that there is an error of law such that the determination should be set aside.
5. In respect of ground 1, Mr Walker argued that the First-tier Judge had erred at paragraph 42 of the determination in her consideration of the Court of Appeal's decision in EV (Philippines) & Ors v Secretary of State for the Home Department [2014] EWCA Civ 874 as she approached the best interests of the child "without reference to his parent's immigration status". The Secretary of State advocated that the exact opposite approach should be followed in light of [58] of EV (Philippines).
6. Ms Crowley for the Appellants submitted that she would rely upon her skeleton argument and referred my attention to [33] of EV (Philippines) which she submitted stated the precise opposite of what was contended for in [58]. With respect to both parties, in my view the Secretary of State has misconstrued the court's judgment at [58] and not gauged it by its context. In my view, the court in EV (Philippines) did not seek to give guidance that the immigration history of the children's parents should be considered in determining the child's bests interests as such a finding by the court would have conflicted with the judgment of the Supreme Court in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 at paragraph 10(7) wherein Lord Hodge delivering the judgment of the court stated that "A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent". I do not believe that the Court of Appeal would have sought to disagree with that binding guidance of the Supreme Court without more.
7. In respect of ground 2 and the contention that the judge failed to give adequate reasons, in my view there is a discrepancy pointed to by Mr Walker. This occurs in respect of the second Appellant being said to have been educated up to the age of 18 at paragraph 38 but later being described at paragraph 47 as neither being "a skilled worker nor educated". That discrepancy in my view is not material to the judge's overall decision and holistic approach to the difficulties that the family would face on return to Ghana. In my view the judge was trying to say that the second Appellant had not undergone education which would supply her with skills, or in other words education, that would lead to a profession. That is why the judge found at paragraph 47 that the second Appellant was not a skilled worker nor educated as part of her reasons for finding that the family would be likely to live in poverty if returned to Ghana.
8. Mr Walker also highlighted that the refusal letter from the Secretary of State mentions that the second Appellant stated in her application that she had two children in Ghana however any complaint which the Respondent may have in those matters not factoring in the judge's consideration are immaterial given that the judge finds at paragraph 58 that the first and second Appellants do not meet the requirements of paragraph 276ADE(1)(vi) of the Immigration Rules where such ties to Ghana would have been relevant. Consequently the judge's assessment of the first and second Appellants' human rights outside of the Rules has not been attacked by the Secretary of State in that regard as her grounds focus on the findings of fact made in the context of the judge's assessment under the Immigration Rules and before she considered Article 8 outside the Rules. Thus given that the judge's assessment of the factors underlying private life fell to be refused under the Immigration Rules the complaints made by the Secretary of State do not infect the findings made separately under Article 8 outside the Rules, which have not been challenged at any rate. Consequently if I am wrong in my view any error is immaterial for that reason alone.
9. Further still, if I am wrong in my view, any error in relation to the second or first Appellant would be immaterial given that the judge has found at paragraph 57 that the third Appellant child has lived in the United Kingdom for seven years and it would be unreasonable for that child to leave the UK. Such a finding would have consequences for the first and second Appellants as parents of that child which would require consideration under Section 117B(6) under the Nationality, Immigration and Asylum Act 2002 which the judge has considered at any rate under paragraph 88 and which has not been challenged by the Respondent. Therefore given the judge's unchallenged findings at paragraph 88 concerning Section 117B(6) of the 2002 Act, there would be no public interest in the parents' removals given that they meet that sub-Section of the statute (which assessment is in harmony with the recent decision of the Court of Appeal in R, (on the application of MA (Pakistan) & Ors) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705.
10. Turning to the third and final ground, in my view the judge had not taken irrelevant factors into account. Indeed the factor of delay is relevant given that the Appellants made their application on 8th August 2012 which was refused on 28th August 2013 but it was not until 2nd March 2015 that removal directions were issued against the Appellants (presumably under the Removal Directions policy) which gave rise to a right of appeal and the appeal hearings before the First-tier Tribunal in due course. Therefore the judge's taking into consideration of the delay against the backdrop that there is no discernible reason why the Secretary of State did not issue removal directions until 2nd March 2015 is acceptable and represented delay that the judge was entitled to take into account. Furthermore there was no reason pressed by the Respondent as to why the judge would not be entitled to take into account the lack of specialist language therapy in Ghana as a factor amongst others to be considered outside the Rules.
11. Consequently I do not find that there is an error of law in the determination such that it should be set aside. The decision of the First-tier Tribunal is affirmed and shall stand.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Saini