Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/15031/2015
IA/15037/2015, IA/15042/2015
IA/15045/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 September 2016
On 11 October 2016

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

DD
YD
KD
AD
(ANONYMITY DIRECTION MADE)
Respondents

Representation:
For the Appellant: Mr C Avery, Senior Presenting Officer
For the Respondents: Mr A Malik, instructed by Malik Law Chambers Solicitors

ANONYMITY
I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Unless the Upper Tribunal or a Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the Respondents herein. This prohibition applies to, amongst others, all parties and their representatives.

DECISION AND REASONS
(Delivered orally on 7 September 2016)
Introduction
1. The Secretary of State ("SSHD") is the appellant before the Upper Tribunal and I shall refer to the 'D' family as the claimants herein. The claimants are all Indian nationals. The first two claimants are married and are the parents of the third and fourth claimants, who were born in February 1994 and October 2002 respectively.
2. On 20 February 2012 each of the claimants made a human rights claim, having originally entered the country on 1 November 2006 with visit visas expiring in June 2007. Those human rights claims were eventually rejected by the SSHD in a composite decision of 30 March 2015, the SSHD having earlier agreed to reconsider previous refusal decisions. On the same date the SSHD issued a notice of liability of removal in relation to each of the claimants.
First-tier Tribunal's Decision
3. The claimants appealed the Secretary of State's decision to the First-tier Tribunal (FtT) and the appeals were heard on the same occasion by First-tier Tribunal Judge Price.
4. The FtT allowed each of the appeals on human rights grounds, in a composite decision promulgated on 29 February 2016. In summary, the FtT allowed the fourth claimant's appeal under paragraph 276ADE(1)(iv) of the Immigration Rules, and the first, second and third claimants' appeals outside the Immigration Rules, on Article 8 ECHR grounds.
5. In coming to its conclusions in relation to the fourth claimant the FtT said as follows:
"43. ? applying the relevant law to the established facts I find that the decision of the respondent appealed against is not in accordance with the law and the applicable Immigration Rules. The respondent accepts that the fourth appellant has resided in the UK continuously for seven years at the date the respondent reconsidered the appellant's application following the successful judicial review claim. This issue is not in dispute between the parties.
44. The issue in dispute in respect of this aspect of the Immigration Rules is that it is not unreasonable to expect the third appellant who fulfils paragraph 276ADE to leave the UK with his family. I do not agree with the respondent. I find as a fact that the fourth appellant has an established private life in the UK. It would be entirely unreasonable for him to live in India, where he has no cultural ties, no relationship with extended family members and limited knowledge of the language. I am required to have regard to Section 55 of the Borders, Citizenship and Immigration Act 2009 and particularly the case of ZH (Tanzania) [2011] UKSC 4 ?
45. I have also had regard to paragraph 20 and paragraph 44 of the same judgment which held that children should not be held responsible for the conduct of their parents. The fourth appellant cannot be blamed for his parents' failure not to regularise their stay in the UK at an earlier date. This factor cannot be weighed against him.
46. The fourth appellant is 12 years old at the date of the impugned decision. He is no longer simply inward-looking to his parents. The fourth appellant is fully dependent upon his parents financially and emotionally but he has also established ties with his peers within school and will be less adaptable to change. I find that it would not be reasonable for him to return with his family to India.
47. I accept that the removal of the fourth appellant from his home would be detrimental to his physical, intellectual, emotional, social and behavioural development. I accept that the avoidance of disruption to his education is in his best interests and this factor should be given the most weight.
48. I find that the decision of the respondent dated 30 March 2015 is not in accordance with the law. I allow the appeal of the fourth appellant on this basis."
Decision and Discussion
6. The FtT was clearly in error in allowing the fourth claimant's appeal under paragraph 276ADE(1)(iv) of the Rules, for the reasons highlighted by Judge Pedro in his grant of permission. The fourth claimant cannot meet the requirements of such Rules because, as of the date of the application to the SSHD, he had not been living in the UK for 7 years. This is determinative of the consideration under the rule. The fact that he had done so by the time of the SSHD's decision, and the appeal before the FtT, is irrelevant to the consideration under this rule.
7. Whilst this was accepted by Mr Malik he nevertheless asserted that the FtT's decision should remain standing. This submission was underpinned by the assertion that the aforementioned error was immaterial. It was said that this was so because the same analysis is required under section 117B(6) of the 2002 Act as is required under paragraph 276ADE(1)(iv) of the Rules, save that the accrual of the relevant 7-year period need not have occurred by the time of the application under section 117B(6), in contrast with the position under para 276ADE. It is sufficient under section 117B(6) for the fourth appellant to have remained in the UK for 7 years prior to the date of the FtT's decision. It was asserted, therefore, that the FtT would inevitably have allowed the appeal outside the Immigration Rules on Article 8 grounds, on the same basis that it allowed the appeal under paragraph 276ADE(1)(iv).
8. Whilst Mr Malik is correct in his analysis of differences in the respective requirements of paragraph 276ADE(vi) of the Rules and section 117B(6) of the 2002 Act, he is not correct in his assertion that the aforementioned error, made by the FtT in its analysis of paragraph 276ADE, is immaterial.
9. Contrary to the assertion made by Mr Malik there are different considerations in play as between paragraph 276ADE(vi) of the Rules and section 117B(6) of the 2002 Act. In particular consideration under the latter provision entails the additional factor of the Immigration Rules not having been met by the claimant. That cannot, for obvious reasons, be a feature of a consideration under paragraph 276ADE. Consequently, there will always be an additional matter for consideration under section 117B(6) that weighs in favour of the public interest of removal, which is not present in a consideration under paragraph 276ADE(vi) the Rules.
10. In any event, even if I am wrong in what I say above, the FtT's decision made in relation to paragraph 276ADE(1)(iv) of the Rules is legally flawed for other reasons.
11. First, the FtT did not consider the fourth claimant's appeal on the basis that the first and second claimants would be removed to India with the fourth claimant; contrary to the correct approach identified by the Court of Appeal in EV (Philippines) v SSHD [2014] EWCA Civ 874.
12. Second, it is clear when reading paragraphs 43 to 48 of the FtT's decision as a whole, and in particular paragraph 45 thereof, that the FtT considered the issue of whether it would be reasonable for the fourth claimant to leave the United Kingdom as an exercise constrained to the circumstances of the fourth claimant. It did not, for example, consider the wider context of the overall analysis of the public interest, including the conduct of the fourth claimant's parents in remaining in the UK without leave. In this regard FtT's approach is unlawful, being inconsistent with the correct approach identified by the Court of Appeal in MA (Pakistan) [2016] EWCA Civ 705, and in particular paragraphs 13, 45 and 47 thereof.
13. For the reasons set out above I set aside the FtT's decision.
14. Given the extent of the further fact finding exercise necessary to determine the appeal, and in particular that relating to whether it would be reasonable to require the fourth claimant to leave the United Kingdom, I conclude that the appropriate forum for the continuation of this appeal is the FtT. I therefore remit the appeal to the FtT for the appeals to be decided afresh. The parties did not express disagreement with this approach.
Notice of Decision
The FtT's decision contains an error of law capable of affecting the outcome of the appeal and is set aside. The appeal is remitted to the First-tier Tribunal (Hatton Cross) for reconsideration de novo.

Signed:

Upper Tribunal Judge O'Connor