Tribunal decisions

The decision

IAC-AH--V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/14340/2014
HU/13699/2015
HU/13708/2015
HU/13703/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 November 2016
On 14 November 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

Between
AKWASI KUSI
AFIA ACHEAMPONMAAH KUSI
ADJEIOWUSU KOFI KUSI
AKWASI KUSI
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr B Lams, counsel instructed by The Legal Resource Partnership
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Monson, promulgated on 23 May 2016. Permission to appeal was granted by First-tier Tribunal Judge on 28 September 2016.
Anonymity
2. No direction has been made previously, and there is no reason for one now
Background
3. On 19 September 2003, the first appellant entered the United Kingdom with entry clearance as a student. His wife, the second appellant, entered on 21 July 2004 and the third and fourth appellants entered the United Kingdom on 26 January 2006, aged 12 and 6, all as dependants of the first appellant. Initially, the leave of all appellants was extended, however there were a number of invalid applications made from 2008 onwards. The appellants were, eventually, granted leave to remain until 15 January 2014; the first appellant as a Tier 2 Minister of Religion and the remainder of the family as his dependants. The first appellant applied for settlement on long residence grounds on 25 October 2013, whereas the remaining appellants made invalid applications for further leave to remain as dependants on 14 January 2014, which were rejected on 26 February 2014. On 26 June 2015, the second, third and fourth appellants applied for leave to remain in the United Kingdom on the basis of their private lives in the United Kingdom and family lives with one another and the first appellant.
4. The Secretary of State concluded that the first appellant could not meet the requirements of paragraph 276B of the Rules because he remained without leave to enter between 30 April 2009 and 10 March 2010. The family life claim of all appellants was refused, notwithstanding that the fourth appellant, then aged 17, had resided in the United Kingdom for more than 7 years. The respondent considered it was not unreasonable to expect the fourth appellant to leave the United Kingdom and it was considered to be in his best interests to refuse him leave to remain so that he could return to Ghana with his family. The long residence of the third and fourth appellants was not said to amount to exceptional circumstances.
The hearing before the First-tier Tribunal
5. At the hearing before the First-tier Tribunal, all four appellants gave evidence as did a trustee of the Pillar of Truth Chapel. An issue arose during the respondent's submissions as to the Secretary of State's inability to locate all the applications made by the first appellant for leave to remain in the United Kingdom and thus there had been no compliance with directions made by a judge at an earlier hearing in relation to this matter. The judge rejected an argument made on behalf of the first appellant, that is that he had been a victim of an injustice regarding whether an earlier application dating from 2008 was validly rejected. The judge concluded that it was reasonable to expect the fourth appellant to leave the United Kingdom. In relation to a submission that by the time of the hearing the fourth appellant met the requirements of paragraph 276ADE(1)(v), the judge noted that this was not the case at the date of the application and it remained open to the fourth appellant to make such an application. Considering Article 8 outside the Rules, the judge noted that the fourth appellant was no longer a qualifying child and did not accept that it was disproportionate to require the other appellants to return to Ghana notwithstanding the fourth appellant being in a position to meet the requirements of 276ADE(1)(v).
The grounds of appeal
6. The grounds of appeal in support of the application argued that particularly strong reasons were required to justify the interference with the fourth appellant's private life and no such reasons were provided by the judge. Furthermore, it was argued that the judge failed to take into account a number of relevant matters and failed to consider whether contemplating the fourth appellant remaining in the United Kingdom alone, without his parents and sibling, amounted to a breach of Article 8.
7. Permission to appeal was granted on the basis that factors set out by the judge at [72] of his decision were;
"relevant to the consideration of the (fourth appellant's) position outside the Immigration Rules and that they were not properly considered. It is arguable that a different outcome for the Appellant might have affected the outcome for the other Appellants."
8. The respondent's Rule 24 response, received on 17 October 2016, indicated that the appeal was opposed. It was argued, essentially, that the grounds were merely seeking to reargue the appeal.
The hearing
9. Mr Lams sought to rely on the skeleton argument he produced for the appeal, dated 4 May 2016. The bulk of his submissions concerned the fourth appellant, whose circumstances engaged paragraphs 276ADE(1)(iv) and potentially (v). In addition, he argued that the residence of the fourth appellant, between the ages of 6 and 18 was a very weighty factor to be taken into account. He relied on [36] of MA (Pakistan) [2016] EWCA Civ 705, where it was said that a child's residence of 7 years should be given significant weight, let alone the 12 years the appellant had been in the United Kingdom when the decision was made. With regard to the judge's findings on the public interest, with respect to section 117B(6) of the 2002 Act, that he was over 18 at the time of the hearing did not cure an unlawful decision. Mr Lams argued that the respondent did not take into consideration the public interest but went on a search for exceptional circumstances, which was not in accordance with MA and did not engage with section 117B. He submitted that the judge did not engage with these arguments and at [72] he ignored the proportionality issue by concluding that it was realistic to contemplate that the fourth appellant could remain in the United Kingdom on his own with accommodation provided by church members until he finished his education and began working.
10. Mr Lams relied on Ghising (family life - adults - Gurkha policy) [2012] UKUT 00160 (IAC) and asked me to note that the appellant in that case was aged 23 and lived with his parents and siblings all his life, like the fourth appellant who was dependent upon his father who still had leave to remain in the United Kingdom as a Tier 2 minister, extended under section 3C of the 1971 Act. At the time of the hearing the fourth appellant was just 18 and still a young adult. Mr Lams submitted that the judge did not consider the proportionality of the fourth appellant having his nuclear family split up and being left on his own in UK. His reasoning at [72] was inadequate. Mr Lams emphasised that the first appellant still had leave to remain and other than where there had been difficulties with the Tier 2 system, he had remained here lawfully. There was an unresolved issue at the time of the hearing regarding the date of application of an earlier application, nonetheless, the appellants were granted leave to remain subsequently.
11. Looking at the wider picture including the immigration history of the appellants, following MA, Mr Lams emphasised that the appellants comprised a family who complied with immigration control. He posited that it was unfortunate that an application for ILR was made rather than extensions of leave. The second, third and fourth appellants became overstayers because they could not be dependent upon an ILR application. This was not a case of the appellants showing disrespect for immigration control as in MA and the facts were completely different. Mr Lams asked me to note that positive findings were made by the judge regarding the first appellant building up a congregation and that the children were involved in voluntary work [78], however all of these matters should have come into the equation regarding the fourth appellant.
12. Mr Lams explained that in his view the judge did not grapple with the respondent's decision in relation to the fourth appellant which focussed solely on 276ADE(1)(iv) and did not see any relevance to (v). The judge found that the fourth appellant could develop an alternative private life in Ghana, which ignored the weight to be attached to the private life already built up in the United Kingdom. This was a clear error.
13. Ms Isherwood argued that the judge made no material error of law. She submitted that the judge dealt with the invalid applications, was aware of the immigration history and did not err in noting that the appellants' leave was precarious. The judge had set out parts of EV (Philippines) [2014] EWCA Civ 874, however the judge found it would be reasonable for the fourth appellant to go back to Ghana. These were findings it was open to the judge to make. Ms Isherwood also listed various paragraphs in MA before reiterating the respondent's position that the grounds amounted only to disagreement with the judge's conclusions,
14. In reply, Mr Lams distinguished the facts of the appellants' case from those of the claimants in MA. In that case, he submitted, the child concerned had never had leave to remain and the leave of the remainder of the family was considerably shorter. The child in MA was aged 8 and had no independent social life. He relied on Azimi-Moayed and others (decisions affecting children; onward appeals)[2013] UKUT 00197(IAC), with reference to the importance attached to 7 years from the age of 4 whereas in this case the length of time was longer from the age of 6. These were points made in the skeleton argument which was before the judge. He argued that the judge made a clear error to the point of irrationality in making the findings he did at [70]. It mattered that the fourth appellant could continue to reside in the same place with the same people. While the judge looked at reasonableness test at [77], he erred in not looking at section 117B(6). The original decision had referred to insurmountable obstacles, which was not the right test. Furthermore, the paragraph 276ADE(v) point was raised in the skeleton argument.
15. At the end of the hearing, I indicated that I would be reserving my decision as to whether there was an error of law. In these circumstances, Mr Lams indicated that if I was to find an error, he was content for me to remake the decision and determine the matter on the facts as found by the judge. Ms Isherwood queried whether I would be seeking written submissions from the respondent. I indicated that I would not be assisted by any further submissions.
Decision on error of law
16. It is the case, that the decision of the First-tier Tribunal involved the making of a material error of law for the following reasons.
17. The judge's findings in relation the fourth appellant, at [70], include the following
"He has thus established a rich private life in the UK. But he can continue to enjoy a private life in Ghana in all its essential elements, albeit with a different set of friends, church members and fellow students."
18. The aforementioned finding does not recognise the protection to be accorded to the private life developed in the United Kingdom where a child is involved.
19. On the latter point, the Upper Tribunal in PD and others (Article 8 - conjoined family claims) Sri Lanka [2016] UKUT 00108 (IAC) said the following at [37]
"Thus there is a long standing recognition that, with the passage of time, children progressively establish roots and integrate in the host country. This is the rationale of the "seven year rule." As the Secretary of State's guidance states:
"The longer the child has resided in the UK, the more the balance will begin to swing in terms of it being unreasonable to expect the child to leave the UK and strong reasons will be required in order to refuse a case with continuous UK residence of more than seven years." (my emphasis).
20. In the case of the fourth appellant, his residence went well beyond the seven-year point in that at the time of the application, he had been continuously residing in the United Kingdom for around 11 and a half years. No "strong reasons" were identified by the Secretary of State for refusing the application and nor did the judge identify any. The fact that that paragraph 276ADE(1)(v) Rules recognises that young people aged between 18 and 25 and who have spent at least half their lives continuously living in the United Kingdom would normally be granted leave to remain in the United Kingdom without any need for a reasonableness test, was not a matter which was adequately considered by the judge, if it was considered at all.
21. The judge's finding that the fourth appellant could start his private life from scratch in Ghana failed to take into consideration the high level of his integration in the United Kingdom, the contribution he made to his church and community and the education and linguistic drawbacks involved in him returning to Ghana.
22. The judge found that it was in the fourth appellant's best interests to return to Ghana, however it is difficult to see how that conclusion could be reached in relation to a young adult in the fourth appellant's position who had yet to complete his education. In considering the reasonableness of the fourth appellant's removal to Ghana, the judge did not take into consideration the fact that the first appellant was not an overstayer owing to the fact that he had extant leave to remain under Tier 2 at the time of his own application for settlement. The Secretary of State made a similar error in the notice of decision, in that the first appellant was described as having no leave to remain.
23. The judge suggested, at [72] that the fourth appellant could remain in the United Kingdom alone and make an application under paragraph 276ADE(1)(v) of the Rules, stating as follows;
"It is realistic to contemplate him remaining here on his own as a young adult, being maintained and accommodated by church members until he finishes his education and enters the world of work."
24. There was no recognition by the judge in making the aforementioned finding, as to whether this scenario amounted to a breach of the fourth appellant's family life and that of the other appellants.
25. Mr Lams' skeleton argument which was before the judge and referred to in passing at [50], devoted two pages to arguments and authorities concerning the consideration of family life as a whole and the position of young adults who remain within and dependent upon the family unit. In view of the fact that the appellant had turned eighteen just before the hearing and continued to live with his parents and older sibling and was not financially independent, there ought to have been consideration of these facts as well as the authorities cited, both in relation to the judge's decision regarding paragraph 276ADE(1)(iv) and also in relation to his proportionality findings.
26. Owing to the said errors, the decision of the judge is set aside, albeit with his findings of fact preserved.
Remaking of decision
27. This appeal involves the claims of parents and their two sons, now aged 18 and 24. The family unit has lived in the United Kingdom continuously since January 2005. The first and second appellants began residing in the United Kingdom in 2003 and 2004, respectively. Guidance was provided by the Upper Tribunal in PD and Others as to how conjoined appeals should be considered and the following was stated:
"In considering the conjoined Article 8 ECHR claims of multiple family members decision-makers should first apply the Immigration Rules to each individual applicant and, if appropriate, then consider Article 8 outside the Rules. This exercise will typically entail the consideration and determination of all claims jointly, so as to ensure that all material facts and considerations are taken into account in each case."
28. Mr Lams did not argue that the first, second and third appellants met the requirements of the Rules at the time their applications were made. It is worth recording that there remains an unresolved issue regarding the timing of an application made on behalf of the appellants at the time of the closing of the minister of religion category on 27 November 2008. The position of the fourth appellant, who was aged seventeen at the time of his application, is different, in that it turns on whether he is able to demonstrate that it would not be unreasonable to expect him to leave the United Kingdom notwithstanding the fact that he has lived in this country continuously for at least seven years.
29. Before embarking further, it is necessary to consider the best interests of the fourth appellant which are, of course, a primary consideration, ZH (Tanzania) v SSHD [2011] UKSC 4, applied. There was no dispute as to the facts before the First-tier Tribunal, however it is useful to rehearse them here.
30. In his signed witness statement dated 29 April 2015, the fourth appellant recalls how he came to the United Kingdom with his older brother in January 2005, aged 6. He considers the United Kingdom to be his only home and states that he has very little memory of Ghana. The fourth appellant describes how he attended primary and secondary school in the United Kingdom, achieving 9 GCSE's. He refers to having commenced a 3-year BTEC diploma in Information Technology at Richmond upon Thames College and indeed there is correspondence from the said College which confirms that he is in fact enrolled at and attending that establishment from 2014 onwards. Therefore, he is at least two years into that course. The fourth appellant refers to using his technical skills to volunteer at Pillar of Truth Chapel, along with his brother. He also attends a local youth centre with his school friends, where he volunteers by helping children with their homework and reading. The fourth appellant mentions his social life with his school and college friends, many of whom he had known since primary school. When contemplating returning to Ghana, the fourth appellant says that he does not know "the language," he fears as to his ability to integrate and refers to the absence of a family home in Ghana. He also wished to continue with his education in the United Kingdom and would feel "devastated" to leave his home and friends in the United Kingdom.
31. It is in the best interest of the fourth appellant to continue to reside in the United Kingdom so that he can continue his private life. Owing to the fact that he lives with his parents and elder brother and is not independent, financially or otherwise, it is also in his best interests that his parents and brother also remain in the United Kingdom as a family unit.
32. In MA, in terms of applying the reasonableness test, the following was said by Elias LJ;
"Even on the approach of the Secretary of State, the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise. Indeed, the Secretary of State published guidance in August 2015 in the form of Immigration Directorate Instructions entitled "Family Life (as a partner or parent) and Private Life: 10 Year Routes" in which it is expressly stated that once the seven years' residence requirement is satisfied, there need to be "strong reasons" for refusing leave (para. 11.2.4). These instructions were not in force when the cases now subject to appeal were determined, but in my view they merely confirm what is implicit in adopting a policy of this nature. After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK. That may be less so when the children are very young because the focus of their lives will be on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child's best interests will be to remain in the UK with his parents as part of a family unit, and that must rank as a primary consideration in the proportionality assessment"
33. At [46] of MA, Elias J accepts that wider considerations need to be taken into account in addition to the child's best interests, saying:
"In my judgment, if the court should have regard to the conduct of the applicant and any other matters relevant to the public interest when applying the "unduly harsh" concept under section 117C(5), so should it when considering the question of reasonableness under section 117B(6)"
34. Nonetheless, at [49], the Court referred to the powerful reasons required for a qualifying child to face removal.
"However, the fact that the child has been in the UK for seven years would need to be given significant weight in the proportionality exercise for two related reasons: first, because of its relevance to determining the nature and strength of the child's best interests; and second, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary"
35. It is also relevant to recall what was said in headnote (iv) of Azimi-Moayed regarding the greater significance of seven years' residence from the age of four, rather than the first seven years of life. In this instance, the fourth appellant has spent 11 years in the United Kingdom from the age of 6 and it follows that the private life which he has established during those years will be even more significant to him.
36. Considering the wider picture, there is no question of a poor immigration history in relation to any of the appellants in this case. Indeed, the Secretary of State has never put forward such an argument. All members of the family entered the United Kingdom between 2003 and 2005, with leave, and have made a series of applications to extend their stay under the Rules. It is the case that the leave of the appellants lapsed following invalid applications at stages between 2008 and 2009. This short period of time without leave does not amount to any reason at all to justifying the removal of a child, particularly when the position was regularised by the grants of leave to remain in 2010 and 2013.
37. The first appellant has had his leave to remain extended under section 3C since he applied for settlement in 2014 and accordingly no criticism can be made of his situation. It is the case that the remaining appellants are overstayers. The reason for this state of affairs is owing to an unwise and indeed, invalid, application being made for them to be dependent upon the first appellant's application for settlement. By the time those invalid applications were rejected, their leave had expired and thus their human rights applications were made at a time when they had no leave to remain. Having regard to the wider public interest in effective immigration control, the balance is struck in favour of fourth appellant. It would be unreasonable to expect his to leave the United Kingdom. He therefore meets the requirements of paragraph 276ADE(1)(iv).
38. As recognised by the Court in MA, the result of the fourth appellant meeting the requirements of 276ADE(1)(iv) or falling within section 117B(6) of the Nationality, Immigration and Asylum Act 2002, is that the parents effectively "piggyback" on the rights of the child. However, it is necessary for me to proceed to a consideration of the proportionality of the proposed removal of the entire family owing to the third appellant, who would not benefit, being an adult sibling at the time of the human rights applications. In addition, the fourth appellant is now an adult at the time of this hearing; the date of the hearing being the relevant time for considering the impact of section 117B(6). I consider there to be compelling reasons for considering the appeals outside the Rules, which do not make allowance for the entire family to be granted leave notwithstanding that the minor member of the family met the requirements of the Rules.
39. As indicated above, both the third and fourth appellants are now young adults. The circumstances of the fourth appellant are set out above. His elder brother is in a similar position apart from the fact that his studies have ended prematurely because of his immigration status. He also lives at home with his parents, volunteers at church and has built up strong friendships and at the same time lost ties with Ghana.
40. The decision in Ghising decried any general proposition that Article 8 can never be engaged with regard to adult children, stating that each case should be analysed on its own facts. In this instance, I find that there is a close parental relationship between the first and second appellants and the third and fourth appellants. This bond has been built up over a period of eleven years of living as a family unit in the United Kingdom.
41. The adult children are financially dependent on their parents and volunteer in the church led by the first appellant. There is no indication of the third and fourth appellants having commenced any form of independent life. There is therefore, a family life to be respected. It is not in dispute that the removal of the appellants to Ghana would amount to interference with their private lives in the United Kingdom, in particular. There were no submissions made on the appellants' behalves with regard to the third and fourth stages of the Razgar test.
42. In considering proportionality, I have had regard to all material matters including those set out in section 117B of the 2002 Act. All appellants are English speaking and owing to the first appellant's role in the church and continued leave to remain, they are financially independent as a family unit, albeit the second and third and fourth appellants are dependent financially upon the first appellant. These factors do not reduce the weight to be attached to the public interest concerns. It is the case that the private lives of all appellants have been established while the stay of the adult appellants was precarious. Given what was said at [53] of MA, it would be unfair to describe the status of the third and fourth appellants in those terms while they were minors. The stay of the family as a whole has been overwhelmingly lawful. A valid application was made for under paragraph 276ADE(1)(iv) in relation to the fourth appellant and as set out above, the requirements of those Rules were met and thus the first, second and fourth appellants ought to be granted leave to remain on that basis. On the face of it, at the time of the hearing, the fourth appellant now qualifies for leave to be granted under paragraph 276ADE(1)(v). The appellants enjoy a strong family life with one another.
43. Considering all the public interest concerns, all the evidence, the respondent's decisions and submissions cumulatively, the removal of the appellants would not be proportionate. Their residence has been lawful for the vast majority of the time; there is no question of any disrespect for the laws of this country and any breaks in lawful residence relating to the first appellant must be viewed in the context of a subsequent grant of leave to remain as a minister of religion. The appellants are socially and culturally integrated into the United Kingdom; the third and fourth appellants have attended school and college here and the third appellant has now spent around half of his life in the United Kingdom. The fourth appellant was continuously resident for over 7 years and it at the time of the application, when he was still a minor, it was unreasonable to expect him to return to Ghana. The removal of the appellants would cause significant disruption to the private lives of all of the appellants, particularly the fourth appellant given his young age when he arrived in the United Kingdom. The fourth appellant is now eligible to apply for leave to remain under paragraph 276ADE(1)(iv) where the question of reasonableness of return does not arise. It is no answer to the circumstances of the family, to suggest that the fourth appellant should seek to remain in the United Kingdom alone in order to take up the opportunity of making such an application.
Conclusions
The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
I set aside the decision to be re-made, while preserving all findings of fact.
I substitute a decision allowing the appeal on the basis that the fourth appellant met the requirements of the Immigration Rules and that the Secretary of State's decision breached the appellants' Article 8 rights.
No application for anonymity was made and I saw no reason to make such a direction.

Notice of Decision
The appeal of the fourth appellant is allowed under the Immigration Rules.
The appeals of all appellants are allowed on human rights grounds.

Signed Date

Upper Tribunal Judge Kamara

TO THE RESPONDENT
FEE AWARD
As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to a whole fee award of any fee which has been paid or may be payable for the following reason. The evidence submitted with the applications was sufficient for the appeals to be allowed.

Signed Date:

Upper Tribunal Judge Kamara