Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/12247/2015

THE IMMIGRATION ACTS

Heard at Field House
Oral determination given following hearing
Decision & Reasons Promulgated
On 12 December 2016
On 16th January 2017

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

A A
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant (Secretary of State): Mr L Tarlow
For the Respondent (Mr A): Mr J Martin, Counsel instructed by Direct Access

DECISION AND REASONS
1. Mr A, who was the original appellant in this case, is a national of Pakistan who entered this country as a student on 23 September 2003. After a number of extensions of his leave, he became appeal rights exhausted in June 2009 by which time his wife and son had arrived in the UK following an appeal in May 2008. The son was born on 2 April 2003 and so was 5 when he came. He has now been in this country some eight and a half years. Mr A made an application by letter dated 18 October 2014 which was refused by the Secretary of State in a decision dated 11 March 2015 against which Mr A appealed.
2. His appeal was allowed by First-tier Tribunal Judge Lagunju but the Secretary of State appealed against this decision. Her appeal was allowed by an Upper Tribunal Judge but that decision was reviewed by this Tribunal and set aside pursuant to this Tribunal's powers under paragraph 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the effect of which is that the appeal against Judge Lagunju's decision has now again to be determined, permission having originally been given to appeal against that decision by First-tier Tribunal Judge J M Holmes on 26 May 2016. Accordingly this remains the appeal of the Secretary of State but for ease of reference I shall hereafter throughout this decision refer to Mr A (who as noted was the original appellant) as "the claimant" and to the Secretary of State, who was the original respondent, as "the Secretary of State".
3. I have been asked to make an anonymity direction because the claimant's son, who is affected by this appeal, is now 13 years old and it would, it is argued, be inappropriate for him to be identified. I agree that in these circumstances it is appropriate to make an anonymity order and I do so. Accordingly this case cannot be reported in any way which might identify the claimant's son.
4. There is no issue in this case regarding the behaviour of the claimant and his wife. They have not had leave to be in this country for a considerable period of time and what is more, the claimant has worked in this country which he was not permitted to do. Clearly there is a considerable public interest in removing people such as this claimant who are not permitted to be here. This is made even clearer than it already was by Section 19 of the Immigration Act 2014 which inserted the new Part 5A into the Nationality, Immigration and Asylum Act 2002, dealing with the public interest considerations of Article 8 of the ECHR. The very great public interest in effecting removal of such people is set out within paragraph 117B, which begins by stating at (1) that "the maintenance of effective immigration controls is in the public interest". Then at sub-paragraph (4) it is provided that little weight should be given to either a private life or relationship formed with a qualifying partner which is established by a person at a time when that person in this country unlawfully and at (5) little weight should be given to a private life established by a person at a time when that person's immigration status is precarious. Accordingly in this case such private life as the claimant and his wife have established in this country should be regarded as of little weight because throughout the last few years neither of them have had any lawful right to be in this country and their position has obviously been precarious; if they had been apprehended earlier as they might have been, steps might then have been taken to remove them sooner. However, Section 117B(6) now provides as follows:
"(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where -
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom".
5. The definition of "qualifying child" for these purposes is set out within Section 117D(1) in which it is said to mean that he or she is either
"(a) a British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven years or more".
6. Although at the time of application the claimant's son had not been in this country for seven years, by the date of the hearing before the First-tier Tribunal, which it is accepted on all sides was the relevant date, the claimant's son had been in this country for seven years and therefore the Tribunal had to consider in light of Section 117B(6) whether or not it would be "reasonable" to expect the child to leave the United Kingdom.
7. The Court of Appeal has recently given guidance (in MA (Pakistan) [2016] EWCA Civ 705) with regard to the implementation of Section 117B(6) and the manner in which "reasonable" should be construed and although that decision was promulgated after Judge Lagunju's decision, nonetheless it sets out the basis upon which she should have considered her decision.
8. Essentially the basis of the Secretary of State's appeal is that at no stage within the decision does the judge give either specific or even proper consideration to whether or not it would be "reasonable" to expect the claimant's son to leave the UK. Section 117B(6) is simply not mentioned within the decision at all. Obviously, the decision of the Court of Appeal in MA (Pakistan) is not considered, because it had not by then been handed down, but it is clear from that decision that when considering whether or not it is "reasonable" to expect a child to leave the United Kingdom a Tribunal must have in mind the public interest in effecting the removal of the particular applicant in that case, so factors such as the applicant's poor immigration history are material to that decision.
9. It is accepted on behalf of the claimant by Mr Martin who has represented the claimant throughout that the judge's failure to have specific regard to Section 117B(6) was an error of law but he submits further that that error was not a material one because, he says, it is clear from the reading of the judge's decision as a whole that even though she did not specifically mention Section 117B(6), the test she applied was no easier than the test she would have been bound to apply had she had this Section specifically in mind.
10. In the course of argument this Tribunal asked Mr Tarlow, who represented the Secretary of State, whether when considering whether or not it would be proportionate to remove the claimant, the judge had disregarded any particular factor to which regard should have been had and Mr Tarlow very reasonably accepted that the judge had not overlooked any particular factor.
11. In the course of his concise but persuasive submissions Mr Martin identified the factors to which the judge had had regard when considering whether the removal of the claimant would be proportionate. The claimant's son had been in this country for over seven years and these seven years had been from the age of 5 rather than from birth, such that significant weight had to be given to it following the guidance given by this Tribunal in Azimi-Moayed and Others (decisions affecting children; onward appeals) Iran UTIAC [2013] but she also had regard to the very great public interest that must be given to the need to enforce effective immigration control. Her starting point at paragraph 24 was that "it is notable that it will be unusual for someone who cannot meet the Rules to succeed under Article 8", and then at paragraph 25 specifically when "assessing proportionality" the judge had "regard to the appellant's poor immigration history". She specifically attached limited weight to the private life established when the claimant's leave was precarious and when he had had no lawful leave in this country and set out in terms that he should have had the intention to return to Pakistan on completion of his studies which he failed to do.
12. All in all therefore, it is clear that the judge did have regard to those factors negative to the claimant but her reason for considering that it would still not be proportionate to return him to Pakistan was because of the disruption that this would cause to his son's life and future prospects. She considered that it would not be in the claimant's son's best interests to leave and had regard to the evidence which was provided to show that the effect on the claimant's son would be significant.
13. It is right that I indicate that this is not a decision which would necessarily have been made by every judge considering this question and indeed, had I been re-making this appeal I may well myself have reached a different conclusion, but my obligation in this hearing is to consider whether or not the judge's failure specifically to set out that the test was whether or not it would be "reasonable" to expect the claimant's son to return to Pakistan was a material one; that is, would it have made a jot of difference to her decision if she had specifically had the word "reasonable" in mind. Mr Martin suggests that if anything the test to be overcome by the claimant when considering whether or not his return would be proportionate is an easier one once the word "reasonable" is used with regard to the son's removal rather than just relying on established Article 8 jurisprudence relating to proportionality. Whether that is so or not, it certainly in my judgment cannot be said that his task would have been harder. It is clear from the judge's decision (even though she did not use this specific word) that she did not consider in all the circumstances of this case that it would be reasonable for the claimant's son to return to Pakistan now (after having had regard to the public interest in removing the claimant) and I must have in mind also that at paragraph 49 of MA (Pakistan) it is stated that "the fact that the child has been in the UK for seven years would need to be given significant weight in the proportionality exercise" such that "leave should be granted unless there are powerful reasons to the contrary". Whether or not the reasons are sufficiently powerful must be considered on the facts in any specific case and in this case the judge did have this test in mind, albeit that it was not expressed through the prism of Section 117B(6) of the 2002 Act, which would have been preferable.
14. Although as I have indicated I myself would very likely have reached a different decision, it cannot be said that the decision was either perverse or was one which was not open to the judge on the basis of the material which she considered or that she has failed to give adequate reasons for reaching the decision which she did. Accordingly, such error as there was in the judge failing specifically to have regard to the provisions of Section 117B(6) was not a material error and the respondent's appeal must be dismissed.

Notice of Decision

The Secretary of State's appeal against the decision of the First-tier Tribunal, allowing the claimant's appeal against the refusal by the Secretary of State of further leave to remain, is dismissed. The First-tier Tribunal's decision allowing the claimant's appeal is affirmed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the claimant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the claimant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed:

Upper Tribunal Judge Craig Date: Decision given orally on 12 December 2016

Signed: 12 January 2017