Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/14676/2015
IA/32961/2015
IA/32968/2015
IA/32971/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7th November 2016
On 22nd November 2016

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Larai [M]
Michael [T]
[E T]
[D T]
(anonymity direction NOT MADE)
Respondents

Representation:
For the Appellant: Mr T Melvin, Home Office Presenting Officer
For the Respondents: Mr G Lee, instructed by Peer & Co

DECISION AND REASONS
1. Although this is an appeal by the Secretary of State I shall refer to the parties as in the First-tier Tribunal. The Appellants were born respectively on 14th May 1980, 11th May 1974, 24th March 2011 and 6th January 2014. They are nationals of Nigeria and are a wife, husband and two children.
2. The third and fourth Appellants were born in the United Kingdom. The first Appellant came to the UK in 2006 as a student. She extended her leave as a Tier 1 Migrant until March 2012. On 26th June 2012 she was refused leave to remain outside the Immigration Rules.
3. The Appellant's current application was made on 30th December 2014 and refused in a decision dated 10th April 2015. First-tier Tribunal Judge Hussain allowed the Appellants' appeals against the refusal of leave to remain on Article 8 grounds for the reasons given in his decision promulgated 19th May 2016.
4. The Secretary of State appealed on the grounds that the judge had made a material misdirection in law, namely that the judge failed to properly apply Section 117B and failed to apply relevant case law to the facts as he found them.
5. Permission to appeal was granted by First-tier Tribunal Judge Simpson on the basis that: "Although the judge appears to have applied the Razgar principles he does not appear to have given sufficient consideration to the issue of proportionality. Moreover, given that he found that the third Appellant's medical conditions gave rise to exceptional circumstances, it is surprising that the judge did not consider the leading cases of D v UK and N v UK, particularly in relation to the UK's supposed 'duty' to provide treatment."
The First-tier Tribunal Decision
6. The judge found that none of the Appellants could succeed under the Immigration Rules. He then went on to consider whether there were exceptional circumstances sufficient to merit consideration outside the Rules. The judge considered that there were two factors which meant that he should consider Article 8 outside the Rules, namely two of the four Appellants were minors, and therefore their welfare considerations must be taken into account, and secondly that the third Appellant's medical condition presented exceptional factors.
7. The judge considered Article 8 and answered the first four questions in Razgar in the affirmative. With regard to proportionality the judge stated:
"23. In making that assessment I have to have regard to the immigration history of the Appellants. As far as the third and fourth Appellants are concerned, they were both born in the United Kingdom and therefore had no control over the situation they are in. However, the first Appellant and the second Appellant have made a deliberate choice of remaining in this country illegally. The second Appellant seems to me to have been in the United Kingdom unlawfully throughout. The first Appellant pleads that after her leave to remain expired she could not go back because by then she had given birth to [ET] who had already had a period of hospitalisation. In other words she says that because her child was so ill she could not leave this country. In my view the truth of the matter is that the Appellant would not have left even if the child was born in the best of health. I say this because she has, prior to the birth of [ET], had refusals from the Home Office but rather than return home she has persisted in remaining here."
24. The first and second Appellants' immigration history is therefore not favourable to them."
8. The judge considered the best interests of the third and fourth Appellants. The third Appellant suffered from the following conditions:
"He was born prematurely and had to remain in hospital for six months before he was discharged. He weighed only 650 grams at birth and was susceptible to infection. He suffered from developmental delay which placed him at a mental age of 2 years. He has special educational needs and has been allocated one to one support of 25 hours per week. The child has problems with his vision and requires ongoing support from specialist speech and language therapists. As was noted in the Home Office refusal letter he is seen by at least eight different specialists in hospital. It is not clear whether any of the conditions from which the child suffers will ever be cured although I think his mother's opinion that the child will have special educational needs is probably correct".
9. The judge found that there was no expert evidence as to the availability of support that the third Appellant needed and the level to which it was available. However, there was a letter from the Federal Ministry of Education which suggested that some privately owned centres may be able to offer some of the support needed by the child whilst a letter from the Alkome Poly Clinic and Maternity suggested that there is a lack of facilities to handle people, especially children with special needs. The judge concluded:
"30. I think I am right in stating that the decisive question is not whether a treatment is or is not available in Nigeria, but whether taking into account the welfare needs of the child and the United Kingdom's duty to promote it, the removal of the child from the treatment/support regime that he enjoys would adversely affect that."
31. In my view, the condition of this child is so unusual in that he suffers from multiple conditions for which whilst [sic] he may never be cured, but is receiving support in the UK which are necessary both to try and improve his condition but at least to ensure that he does not get any worse. In my view those are his basic welfare needs."
32. Having tried to balance the United Kingdom's interest in maintaining immigration control against the adverse impact on the child, I have come to the view that the public interest clearly lies in protecting [ET]'s welfare which favours his remaining in the United Kingdom."
33. I have taken into account the public interest considerations in Section 117B of the Nationality, Immigration and Asylum Act 2002 and find that the public interest weighs in their favour. The first and second Appellants speak English fluently and whilst I have not been presented with evidence of their financial circumstance, that is one factor that I have to take into account amongst others. I find that the situation of the third Appellant as discussed above is such that it would be disproportionate to remove him from the United Kingdom. That finding seems to me to inexorably lead to a further finding that if the first, second and fourth Appellants are removed then the family and private life they enjoy with the third Appellant would be disproportionately interfered with."
34. The conclusion to which I have therefore come is that all of the Appellants succeed under Article 8 of the Human Rights Convention."
Submissions
10. Mr Melvin made written submissions which in summary stated that the judge should have considered the fact that the child in question had not completed seven years' residence in the UK and that fact figured greatly when the Court of Appeal considered the reasonableness test in MA (Pakistan) [2016] EWCA Civ 705. He submitted that the court dismissed the appeals of five of the Appellants and in AZ (Pakistan), an autism case, the Court of Appeal had at paragraphs 102 to 103 found that the position might have been otherwise had the child not completed seven years' residence. It was submitted that the First-tier Tribunal Judge had not given any weight to the significant factor of seven years' residence in finding that the appeals should be allowed outside the Immigration Rules.
11. Mr Melvin also relied on EV (Philippines) [2014] EWCA Civ 874, paragraphs 58 to 62, and submitted in that case the court held that it was not for the UK to provide medical treatment for the world or to educate the world and that the cost to the public purse of education and healthcare must weigh in the proportionality exercise. The judge had erred in law in that neither of these elements appeared in the judge's conclusions.
12. Mr Melvin submitted, relying on GS (India) & Ors [2015] EWCA Civ 40 at 86, that the third Appellant's case would fail under Article 3 and therefore without more it would be difficult to succeed under Article 8. He relied on paragraph 86 of that decision, which states:
"If the Article 3 claim fails (as I would hold it does here), Article 8 cannot prosper without some separate or additional factual element which brings the case within the Article 8 paradigm - the capacity to form and enjoy relationships - or a state of affairs having some affinity with the paradigm. That approach was, as it seems to me, applied by Moses LJ in MM (Zimbabwe) at paragraph 23: 'The only cases I can foresee where the absence of adequate medical treatment in the country to which a person is to be deported will be relevant to Article 8, is where it is an additional factor to be weighed in the balance, with other factors which by themselves engage Article 8. Suppose, in this case, the Appellant had established firm family ties in this country, then the availability of continuing medical treatment here, coupled with his dependence on the family here for support, together establish 'private life' under Article 8. That conclusion would not involve a comparison between medical facilities here and those in Zimbabwe. Such a finding would not offend the principle expressed above that the United Kingdom is under no Convention obligation to provide medical treatment here when it is not available in the country to which the Appellant is to be deported.'"
13. In his oral submissions, Mr Melvin stated that the third Appellant's medical condition was not life-threatening and the judge had failed to take into account the poor immigration history of his parents in the proportionality assessment. The third Appellant could not succeed on Article 3 grounds and therefore it was very difficult to succeed on Article 8 grounds. The judge had to identify something more in the Appellant's private life to meet that test. The facts of this case did not show that the Appellant had established private life outside medical care.
14. Further the judge failed to consider the public purse in considering the exceptionality test and proportionality, namely the cost of education and further healthcare. The judge had gone straight to exceptional circumstances without considering Article 3 or Article 8. He had not taken into account the weight to be attached to the public interest. This was not a case where the child had been residing in the UK for seven years.
15. Mr Melvin relied on paragraph 61 of EV (Philippines), which states: "In fact the Immigration Judge weighed the best interests of the children as a primary consideration, and set against it the economic wellbeing of the country. As Maurice Kay LJ pointed out in AE (Algeria) v Secretary of State for the Home Department [2014] EWCA Civ 653 at [9] in conducting that exercise it would have been appropriate to consider the cost to the public purse in providing education to these children. In fact, that was not something that the Immigration Judge explicitly considered. If anything, therefore, the Immigration Judge adopted an approach too favourable to the Appellant."
16. Mr Melvin submitted that the test was whether treatment was available to the third Appellant in Nigeria, not whether it was the same as the UK. The judge had accordingly made an error of law and I should remake the decision on the facts found by the judge and dismiss the Appellants' appeal on Article 8 grounds.
17. Mr Lee submitted a skeleton argument in which he stated that the judge came to the following findings:
(i) The case was sufficiently exceptional to warrant consideration outside of the Immigration Rules.
(ii) The exceptionality consisted of a combination of the fact that two of the Appellants were children and thus their best interests fell to be considered as a primary factor and the medical conditions that the third Appellant, [ET], suffered from.
(iii) The first and second Appellants' immigration history is to be held against them.
(iv) The third Appellant has exceptional needs and has been allocated a significant amount of support including 25 hours of one to one support, together with support from specialist speech and language therapists. He is seen by at least eight different specialists in hospital.
(v) The key question was whether the removal of the third Appellant from his treatment and support regime would adversely affect his best interests.
(vi) The answer to that question was that his medical conditions and his prognosis were so unusual such that it was in his best interests to remain under the care package he was receiving in the UK at the very least to ensure that his condition did not worsen.
(vii) Taking into account the public interest considerations in Section 117B of the Nationality, Immigration and Asylum Act and balancing the UK's interests in maintaining immigration control with the adverse impact removal would have on the third Appellant it would be disproportionate to remove him.
(viii) The first, second and fourth Appellants' appeals fell to be allowed in line with the third Appellant as otherwise family life with the third Appellant would be interfered with disproportionately.
18. In his skeleton argument, Mr Lee submits that the grounds complain of two alleged errors of law, firstly that the judge misdirected himself and should have concentrated on the availability of care in Nigeria and secondly that the judge erred in his approach to Section 117B of the 2002 Act.
19. Mr Lee submitted that the judge's approach to the issue before him was legally sustainable. He correctly identified the need for there to be exceptional circumstances to warrant consideration outside the Rules consistent with Richard LJ's analysis in SS (Congo) & Ors v Secretary of State for the Home Department [2015] EWCA 387 at paragraph 33. There was also relevant case law which held that the decision to remove a person from the UK where that would prejudice his or her access to medical treatment may engage Article 8. There were numerous cases on mental health grounds and physical health grounds.
20. There was authority that failure under Article 3 did not necessarily entail failure under Article 8. In JA (Ivory Coast) and ES (Tanzania) v Secretary of State for the Home Department [2009] EWCA Civ 1353 Lord Justice Sedley, with whom Lord Justices Longmore and Aikens agreed, said at paragraph 17:
"There is no fixed relationship between Article 3 and Article 8. Typically, a finding of a violation of the former may make a decision on the latter unnecessary; but the latter is not simply a more easily accessed version of the former. Each has to be approached and applied on its own terms, and Ms Giovannetti is accordingly right not to suggest that a claim of the present kind must come within Article 3 or fail."
21. In GS, the Court of Appeal stated that if an Article 3 claim failed on health grounds, in order for an Article 8 claim to succeed there would have to be some separate or additional factual element which brought the case within the Article 8, e.g. the capacity to form and enjoy relationships. Mr Lee submitted that in the present case the judge had identified the additional factor, the question of the best interests of [ET]. It was clear that his best interests were his continued access to the complex levels of care that he received in the UK and it was in his best interests to receive that carefully orchestrated care package. This finding was not dependent on a finding that some care would be available in Nigeria. The care he received was necessarily an important and protected facet of his private life. Accordingly, there was no error of law in the judge's findings.
22. In relation to Section 117B of the 2002 Act, it was submitted that in this case the judge's conclusions, in respect of the child with severe difficulties and complex care packages, were properly open to him. When considering MA (Pakistan) certain aspects resonated with the Appellants' case although the context was slightly different:
"In my judgment, the observation of the judge to the effect that people who come on a temporary basis can be expected to leave cannot be true of the child. The purpose underlying the seven year rule is that this kind of reasoning ought not to be adopted in their case. They are not to be blamed for the fact that their parents overstayed illegally, and the starting point is that their status should be legitimised unless there is good reason not to do so. I accept that the position might have been otherwise without the seven years' residence, but that is a factor which must weigh heavily in this case. The fact that the parents are overstayers and have no right to remain in their own right can thereafter be weighed in the proportionality balance against allowing the child to remain, but that is after a recognition that the child's seven years of residence is a significant factor pointing the other way."
23. In his oral submissions, Mr Lee stated that considering the judge's factual findings his overall conclusions were sustainable on those facts and his decision was open to him on the evidence before him. The judge had identified factors which enabled him to look at Article 8 outside the Immigration Rules. He then considered the exceptional circumstances identified and took into account the immigration history of the Appellants. This was not just a medical case. The third Appellant received a significant learning package in his school and the judge had also taken into account Section 117B. The proportionality balance fell in favour of protecting the third Appellant's welfare and the judge's approach was consistent with GS.
24. The judge had identified additional elements in this case. The third Appellant was a child and was receiving an unusual level of care including support in his learning environment. This was part of his private life. It was open to the judge to conclude that the package of medical treatment and learning support constituted private life. This was something more than medical treatment and it was in the child's best interests to receive such treatment and the learning support that he did. The judge had properly applied Section 117B and concluded that the third Appellant's removal was disproportionate, even though he did not have seven years' residence. This finding should only be set aside if it was not open to the judge on the facts. Whilst this could be described as a sympathetic decision it was not a perverse decision.
25. In response, Mr Melvin submitted that the seven year rule was a significant factor and the judge had failed to properly apply the approach in MA (Pakistan). He had not taken into account the adverse immigration history of the third Appellant's parents in his proportionality assessment and had not factored in the expense to the public purse of education and welfare. The judge had failed to look at whether the Appellant's parents were financially independent and therefore he had erred in his application of Section 117B. There was a material misdirection in law.
26. Further, the judge had failed to consider the case law referred to in submissions. The UK could not be expected to cover the educational and medical needs of the world. The judge had not applied relevant case law and had not in fact referred to it. Had he applied that case law he would have come to the opposite conclusion. Accordingly, his findings were irrational.
Discussion and Conclusions
27. I am not persuaded by Mr Melvin's submission that the judge failed to take into account the immigration history of the first and second Appellants in his assessment of proportionality. It is quite clear from the decision that, in looking at proportionality, the first thing the judge dealt with was the immigration history of the Appellants. The first and second Appellants had made a deliberate choice to remain in the UK illegally and the third and fourth Appellants had no control over the situation they are in.
28. The next point made by Mr Melvin is that the third Appellant could not succeed on Article 8 grounds and the only relevant element taken into account by the judge was the third Appellant's medical needs. The judge had failed to assess whether treatment was available in Nigeria. Had he done so he would have concluded that the removal of the Appellant did not breach Article 3. The judge failed to make any finding on Article 3.
29. I find that the judge's failure to specifically address Article 3 was not material. The Appellant cannot succeed on Article 3 grounds, but this does not preclude a finding under Article 8.
30. I am of the view that the judge considered whether treatment was available in Nigeria and did not just assess whether it was equivalent to that in the UK. He commented on the lack of expert evidence, but also assessed the contradictory evidence before him; some privately owned centres may be able to offer some of the support needed, but there was a lack of facilities to handle people, especially children with special care.
31. The judge found that there was something more than the third Appellant's medical care sufficient to engage Article 8. The judge's findings at paragraphs 30 and 31 identify not only the medical needs of the Appellant and the treatment he receives in the UK, but also the fact that he is receiving support at school and with a variety of other professionals. The judge has concluded that the unusual circumstances and special needs of the third Appellant are something over and above his medical needs.
32. I am persuaded by Mr Lee's submission that the judge's conclusions at 30 and 31 amount to an assessment of the third Appellant's private life. The judge found that the third Appellant's private life, his healthcare, his learning support, all of his welfare needs mean that he has shown an additional element over and above medical treatment in the UK. The judge's decision was consistent GS that there had to be some separate or additional factual element which brought the case within the Article 8 paradigm, for example the capacity to form and enjoy relationships or a state of affairs which had some affinity with that paradigm.
33. Accordingly, whilst not referring to GS or, indeed D or N, that failure was not material because the judge assessed the third Appellant's private life and came to conclusions which were open to him at paragraphs 30 and 31. The judge then carried out the balancing exercise and found that the adverse impact on the child would be great. The judge weighs this against the other factors in Section 117B.
34. The fact that the third Appellant has not been residing in the UK for seven years is not a factor to be held against him, given that the judge found that his best interests were to remain in the UK and there is a duty to promote his best interests. The Third Appellant's best interests are independent of the immigration history of his parents.
35. The judge weighed the third Appellant's best interests against the poor immigration history of his parents and concluded that the circumstances of the third Appellant were so unusual that they outweighed the public interest in maintaining immigration control.
36. The failure to specifically refer to paragraph 61 of EV (Philippines) was not fatal to the decision. In assessing the 'care package' that the third Appellant received the judge was well aware of the expense to the public purse of educating the third and fourth Appellant and the third Appellant's healthcare needs.
37. The judge found that the best interests of the third Appellant outweigh the public interest because his welfare needs were so unusual that removing him to Nigeria would be disproportionate, notwithstanding the fact that his parents had remained illegally and notwithstanding the cost of the expense and support that the Appellant received.
38 The judge's decision was open to him on the facts of this case. It was consistent with case law and he properly applied Section 117B of the 2002 Act. I find that there was no error of law in the decision of the First-tier Tribunal dated 11th May 2016 and I dismiss the Respondent's appeal.

Notice of Decision
The Respondent's appeal is dismissed.
No anonymity direction is made.

J Frances
Signed Date: 18th November 2016

Upper Tribunal Judge Frances