Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA104612015
IA104642015
IA104772015
IA104812015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3rd June 2016
On 13th June 2016

Before

upper tribunal DEPUTY judge ROBERTS

Between

the secretary of state for the home department
Appellant
and

mrs anber farhan butt (first respondent)
mr farhan islam butt (second respondent)
[i b] (third respondent)
[m b] (fourth respondent)
(ANONYMITY DIRECTIONs NOT MADE)
Respondents

Representation:
For the Appellant: Mr K Norton, Senior Presenting Officer
For the Respondents: Miss McCall, (Counsel)

DECISION AND REASONS
1. The Secretary of State appeals with permission against the decision of a First-tier Tribunal (Judge Majid) which in a decision promulgated on 29th October 2015 allowed the appeals of the four Respondents against the decision of the Secretary of State to refuse to grant them leave to remain in the United Kingdom and making directions for their removal from the UK under S.10 Immigration and Asylum Act 1999.
2. In this decision I shall refer to the Secretary of State as "the Respondent" and to the four Respondents as "the Appellants". This reflect the respective positions of the parties as they were before the First-tier Tribunal.
3. No anonymity was sought by the Appellants either in the First-tier Tribunal nor before me; therefore I see no reason to grant anonymity.
Background
4. The Appellants are respectively Mrs Butt, Mr Butt her husband and their two children both of whom are dependant minors, born on [ ] 2007 [IB] and [ ] 2008 [MB]. All four Appellants are citizens of Pakistan.
5. Mr Butt arrived initially in the UK in 2003 in possession of a student visa. He made various applications to extend his leave but by 2009 it is correct to say that he was here without leave. Mrs Butt entered the UK in 2006 also in possession of a student visa valid until 2007. Mr and Mrs Butt's daughter [IB] born on [ ] 2007 and their son [MB] was born on [ ] 2008. Both children were born in the UK but neither are British citizens.
6. On 21st March 2014 Mrs Butt made an application for leave to remain in the UK along with her husband and two children as her dependants, on the basis of family/private life. This application was made on the grounds that her eldest child had been born in the UK (as had the youngest child) and had lived here for over seven years and was in education. It was further claimed that both children had been brought up in the "English culture" and therefore would be unable to settle in Pakistan.
7. Mrs Butt's application to remain was refused by the Respondent. It is of note that Mrs Butt as well her husband was by this time in the UK without valid leave. The Respondent considered the applications of the family but refused all applications after considering their Article 8 ECHR private/family life claims and after considering the best interests of the children under S.55 Borders, Citizenship and Immigration Act 2009. All four family members appealed to the First-tier Tribunal.
8. When the appeals came before Judge Majid, he heard evidence from Mrs Butt and her husband (whom he erroneously refers to as the "principal Appellant"). Mrs Butt is the "principal Appellant "; her husband and children apply as her dependants.
9. After setting out the evidence heard from Mr and Mrs Butt, the judge then wrote a heading entitled "Dispositive Reasons and Deliberations". Under that heading he set out a large number of paragraphs quoting extensively from case law together with general comments on the 2012 Immigration Rules (twenty paragraphs or so). In fairness there is also contained under that heading, a long paragraph describing Mr Butt's statement together with a few words confirming that Mrs Butt corroborates Mr Butt.
10. Within that section, two paragraphs only are of particular note. In [12] the judge says:
"Miss McCall submitted that the appeal should be allowed because the children could not survive in Pakistan; they were born in Britain and have never gone anywhere else. There is no 'public interest' for separating them from their parents and living in an alien culture. They would definitely suffer a lot in Pakistan because all of their schooling has been in this country and they have gone nowhere else in their lives."
11. He continues in [29]:
"...The rule of law demands that these Appellants should be helped by the system because the 'best interests' of the children have to be taken into account. The first Appellant (the father of the children) had told me that his children have always been using the English language in their schooling which has been exclusively in this country... The children are definitely brought up in English culture and during our stay in Norwich they only had two/three Asian children in the school and had to have English friends virtually all the time. I am also minded to allow this appeal due to the fact that both children have spent over seven years in this country and, on that basis alone, any judge could allow this appeal."
12. The judge then says, in the last paragraph of his decision, that in view of his deliberations he is persuaded that the Appellants come within the relevant Immigration law. Finally under a heading "Notice of Decision" he simply says "Appeal allowed."
13. The Respondent sought permission to appeal the decision. Permission was granted in the following terms:
"It is arguable that the judge has misdirected himself (a) in making no reference to the Immigration Rules (paragraph 276ADE(iv) and Appendix FM) before going on to consider Article 8 of ECHR; (b) by relying heavily on the children's education in the UK without regard to the fact that it would be reasonable to expect the children to leave with their parents (reference is made to the cases of EV (Philippines), EA (Nigeria) and AM (Malawi)) and (c) by failing to apply Section 117B of the Nationality, Immigration and Asylum Act 2002 in respect of all the Appellants.
Thus the matter comes before me to decide if the decision of the FtT contains an error of law such that it must be set aside and remade."
UT Hearing/Error of Law
14. I am satisfied that the decision of the First-tier Tribunal is not sustainable and must be set aside for legal error. I now give my reasons for so finding.
15. Miss McCall who appeared before me for the Appellants accepted at the outset that none of the Appellants can meet the Immigration Rules. She agreed that what was before the judge was an Article 8 ECHR appeal only. She submitted that despite the terms of the grant of permission there was adequate reasoning in [29] sufficient to sustain the judge's conclusion in allowing the appeal(s). I disagree.
16. I find first that the judge appears in [12] to have completely misunderstood what was before him. The Respondent's case is and has always been that the Appellants return to Pakistan as a family. As I said earlier, both Mr and Mrs Butt remain in the UK without leave. The judge appears to have failed to understand this and therefore fails to take into account that the starting point of the best interests of the children is in being with their parents; neither of whom have lawful leave to remain in the UK.
17. Further when considering the situation of the children he has failed to have regard to the more recent jurisprudence set out in EV (Philippines), EA (Nigeria) and AM (Malawi). Those cases all add a gloss to Section 117B of the Nationality, Immigration and Asylum Act 2002. The judge was obliged to take those matters into account and nowhere do I see that he has done so.
18. The reasoning referred to by Miss McCall in [29] falls far short of that required to explain in clear terms why the judge reaches the conclusion he does when he says "he is minded to allow the appeal due to the fact that both children have spent over seven years in the country and on that basis alone any judge could allow this appeal."
19. I find for the foregoing reasons that the FtT has erred in law and the decision must be set aside and remitted for a fresh hearing. I direct that no findings of fact shall stand. Given the need for a new full fact-finding exercise, I consider it appropriate that the appeal should be returned to the First-tier Tribunal (not Judge Majid) for that Tribunal to remake the decision.
Notice of Decision
The decision of the First-tier Tribunal dated 29th October 2015 is set aside. None of the findings of fact made by that Tribunal shall stand. The appeal should be considered afresh by the First-tier Tribunal (not Judge Majid) and that Tribunal shall remake the decision.
No anonymity was sought in these appeals. Therefore anonymity is not ordered.

Signed C E Roberts Date 10 June 2016

Upper Tribunal Deputy Judge Roberts