Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/15374/2014
IA/15369/2014
IA/15357/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24th October 2016
On 14th November 2016

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

merl
mfdl
smjl
(anonymity direction made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr B Hawkin instructed by Lambeth Solicitors
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellants are citizens of Mauritius born on 29th June 2001, 7th March 1964 and 22nd October 1961. The Appellants are a dependent child and two parents. They appeal against the decision of First-tier Tribunal Judge Turquet, dated 2nd September 2015, dismissing their appeals against the refusal of leave to remain under the Immigration Rules and on Article 8 grounds.

2. Permission to appeal was granted by Upper Tribunal Judge Blum on 11th February 2016. It was arguable that in the judge's brief and limited assessment of reasonableness of the youngest Appellant being required to leave the UK, the judge failed to sufficiently focus on the private life the teenager had established, the evidence in support of that private life and the evidence relating to the impact on her of the proposed removal.

3. The appeal was initially adjourned awaiting the outcome of MA (Pakistan) [2016] EWCA Civ 705. In a decision dated 22nd September 2016, I found that the judge had made an error of law in assessing the best interests of the first Appellant. The judge had failed to show that she considered the Appellant's private life outside the family unit. I therefore set aside the decision of the First-tier Tribunal dated 2nd September 2015 and adjourned the hearing to 24th October 2016.

4. Prior to the error of law hearing there was an application to withdraw the appeal of NJRL who was born on 21st March 1994 because she had been granted limited leave to remain on the basis of family and private life on 13th June 2016. She is the first Appellant's sister and the daughter of the second and third Appellants. She still lives in the family home and attends Queen Mary University.

The Appellants' Evidence

5. SMJL, the third Appellant, gave evidence confirming his name and date of birth and relying on three witness statements dated 23rd October 2014, a supplementary witness statement and a witness statement produced for this hearing on 22nd October 2016. In oral evidence he stated that his mother was still living in Mauritius. She was his only family member, she was 70 years old and lived in a care home. His father had passed away and he had no brothers or sisters. His main concern about return to Mauritius was that he was 55 years old and would find it difficult to find a job. All his family were here. His eldest daughter was studying at university and was financially dependent on him. His youngest daughter was doing GCSEs and did not speak Creole. It would be very difficult for the family to return to Mauritius.

6. In cross-examination he stated that his daughter at university lived at home and she would stay in the UK now that she had the chance to study, even if the rest of the family returned to Mauritius. She was 22 years old.

7. MFDL, the second Appellant, confirmed her name and date of birth and relied on her statement before the First-tier Tribunal. It was undated, but had been signed in October 2014. Her mother lived in Mauritius and was 80 years old. She also had a brother who was married with two children. Her father had passed away a few years ago, her mother lived with her brother, sister-in-law and children in a three bedroom house. All the children lived at home, there would be no room for her and her family to live there in Mauritius and she did not have her own property.

8. Her main concern was her youngest daughter MERL who had lived here for the last eleven years. All her schooling from nursery had been in the UK and all her friends were here. MERL had created bonds with teachers at school and friends and she was very dedicated to her schooling. This was her main concern because she did not want her daughter's dreams to be shattered. There was no cross-examination.

9. MERL, the first Appellant, confirmed her name and date of birth as 29th June 2001. She relied on her statements of 16th October 2014 and 24th October 2016. She also relied on educational records and certificates at pages 84 to 172 of the first bundle and at page 186 of the supplementary bundle. There were also updated school documents in the current bundle prepared for this hearing.

10. MERL had seen a psychologist and since then had talked to teachers and her form teachers who had supported her. There was a letter from her tutor Mr U at page 13 of the current bundle. She had taken two GCSEs and will take eight more in the summer. She spoke English and could not speak Creole. She could understand French if it was spoken slowly, but she did not know enough to have a proper conversation. She spoke English with her parents. She wanted to do 'A' levels and go to university to study law at Warwick. Her main concern was that she had no recollection of Mauritius. She had only been educated in the UK and all her friends were here. There was nothing waiting for her in Mauritius. There was no cross-examination.

Submissions

11. Mr Kotas adopted the reasons for refusal letter and did not make oral submissions. Mr Hawkin relied on paragraphs 46 to 49 of MA (Pakistan). The fact that a child had 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 interest and second because it established as a starting point that leave should be granted unless there were powerful reasons to the contrary.

12. Mr Hawkin also submitted that the factors referred to in EV (Philippines) [2014] EWCA Civ 874 were relevant to the first Appellant's best interests: her age; length of time in the UK; how long in education; stage of education reached; extent to which she had become distant from the country of proposed return; how renewable her connection may be; to what extent she would have linguistic, medical or other difficulties in adapting to live in the country; and the extent to which the course proposed will interfere with her family and private life.

13. Mr Hawkins submitted that generally speaking all the factors in EV (Philippines) pointed to the conclusion that the first Appellant's best interests were to remain in the UK. Therefore, in this case, more was required in the way of countervailing factors to justify the refusal of leave.

14. There was no criminality or misbehaviour on the part of the parents. They came here lawfully and had stayed here lawfully until 2009. As a result of the change in the Immigration Rules their leave had expired, but they had not gone underground. Instead they had made significant efforts to regularise their status and the appeal process had taken a lot of time.

15. The first Appellant had been in the UK since the age of four and was now 15 years old. It was well known that seven years' residence from the age of four should be given more weight than seven years from birth. The first Appellant had 11 years from the age of four and she was currently at a critical stage of her education. She would face significant difficulties on return because of her length of absence from Mauritius. She had never visited there and there were few family members remaining save for elderly grandparents and an uncle.

16. There was ample documentation to show that the first Appellant had a significant private life in the UK and of particular relevance was the letter from her tutor at page 13 of the current bundle in which he states:

"[MERL] has already completed two of her GCSEs with passing results and is currently preparing to do another eight GCSEs that she will sit in less than eight months, and due to the positive comments I receive about her from her teachers I have no doubt that she will also achieve exceptional results. By the end of this academic year M is expected to achieve 10 passing GCSE qualifications and I firmly believe if M were to stop her studies here in the UK at this very essential and critical stage, it would undoubtedly have a negative effect on her future and everything she has worked so hard to achieve thus far. In addition if she were to shift to an unknown environment with a different education system it would certainly cause her difficulties to adapt and great distress."

17. There were numerous documents at pages 84 to 172 of the original bundle to show the Appellant's academic success at school. There were also documents and character references from teachers, friends and family, and school reports at pages 3 to 27 of the supplementary bundle. There was a 'memories album' which started at page 186 of the supplementary bundle. Putting all this together, there was strong evidence that the first Appellant had an independent private life beyond the family unit.

18. There were additional school documents in the bundle prepared for this hearing and the first Appellant was referred to four times in the school newsletter which appeared at pages 12 to 21. Her older sister was at university and had been given leave to remain. Therefore, there cannot have been countervailing public interest factors which would have weighed against the granting of leave in her case.

19. There was also evidence from Dr Blincow a psychologist, dated 14th August 2015, of the effect of removal on the first Appellant. In summary, Dr Blincow stated that MERL was suffering from clinically significant depressive disorder with prominent anxiety and persistent ruminations over the possibility of her having to leave the UK. ?. This will remain a chronic stressor for her and it is unlikely that, with that remaining a possibility, she will be able to make a full recovery even despite engaging with therapy. She may learn to cope better with her symptoms but I would see it as likely that she will remain in a depressive state with higher than normal levels of generalised anxiety if she were going to move to Mauritius against her will.

20. Dr Blincow stated that he could only comment from the point of the mental health which was currently compromised and warranted treatment. The prospect of forced removal to Mauritius was likely to remain a significant and negative factor in terms of her emotional, social and educational development through adolescence into young adult life. I have discussed the impact of this on her future education on career prospects above. Negative consequences are also likely to remain for her across a wide range of dimensions of her adolescent and adult development. These dimensions include a personality formation (particularly she is now at a sensitive age as far as this is concerned), mental health (she is now at a higher risk of her depressive state becoming chronic or relapsing in the future) as well as social integration (due to her withdrawing more and being compromised in terms of integrating into Mauritian society, should a move come about).

21. It was noticeable that her parents' overriding concern was the first Appellant. They were both near retirement age and would have difficulties in re-establishing themselves in Mauritius. They ran a care home business in the UK and were financially self-sufficient. There was a reduced public interest and the factors in 117B were in their favour.

Factual Findings

22. The first Appellant is 15 years of age and has been resident in the UK for the past 11 years. She came to the UK at the age of four and has no recollection of her life in Mauritius. She has been in education for the past 11 years, starting in nursery when she came to the UK, and is currently part way through her GCSEs. She passed two GCSEs last year and is due to take a further eight GCSEs in the summer of 2017. She has no knowledge of Mauritius and has very few relatives living there save for two elderly grandparents, an uncle, sister-in-law and cousins. She has no renewable connections since she came here at such a young age and has no memorable knowledge of Mauritius. She has been educated in English and speaks English with her parents. She clearly has a linguistic ability which is apparent from her school reports. However, she confirms that she cannot speak Creole and that her French was limited. She was able to understand French if it was spoken slowly, but was not comfortable in having a conversation.

23. The third Appellant came to the UK in August 2005 with entry clearance as a student. The second Appellant joined him with their two children in November 2005. They were granted leave to remain until 30th June 2009. On 20th July 2009 they made an application for further leave to remain as a student and dependants which was refused on 7th September 2009. The decision was reconsidered and maintained. The Appellants made a human rights application in August 2010 which was refused, reconsidered and maintained. They made a student application in April 2011 (which was refused on 8th January 2013. The application which is the subject of this appeal was made on 2nd December 2013.

24. The second and third Appellants have established a care home business and are financially self-sufficient. The business employs 11 people and is a care home for elderly patients who have learning disabilities. The previous owner intended to close down the business and the second and third Appellants decided to take it over in 2009 and have gradually built it up.

Best Interests

25. The first Appellant has been living in the UK for 11 years from the age of four. She has no recollection of Mauritius and has been educated in the UK system for the past 11 years. I find that she is at a critical stage of her education and she has formed a strong private life outside the family home. It is clear from the 'memories album' and the letters from her friends that she is integrated into life and culture in the UK and has developed strong bonds and friendships. I have considered the report of Dr Blincow. The Appellant has suffered from mental health problems because of her proposed removal. Her removal to Mauritius would have a significant effect on her. Accordingly, considering all the factors in EV (Philippines), it would be in the first Appellant's best interests to remain in the UK.

Reasonableness

26. At the date of application, the Appellant had been living in the UK for more than seven years. Following MA (Pakistan) this is a starting point and seven years' residence must be given considerable weight. Leave to remain should be granted unless there are powerful reasons to the contrary.

27. In assessing reasonableness, I need to look not only at the situation of the first Appellant, but also balance it against the immigration history of the second and third Appellants. They have remained in the UK unlawfully since 2009, but have made several attempts to obtain leave. They have set up their own business and are financially independent. I find on the particular facts of this case that there are no powerful reasons to justify the refusal of leave, given the first Appellant's length of residence and her significant private life in the UK.

28. Accordingly, I find that the first Appellant, MERL, satisfies paragraph 276ADE (iv) of the Immigration Rules because she has lived in the UK for at least seven years, is under the age of 18 and it is not reasonable to expect her to leave the UK. She has no recollection of life in Mauritius and no renewable connections. She has formed very strong bonds with friends outside the family unit and she is at a critical stage of her education. Her parents' immigration history is insufficient, on the particular facts of this case, to amount to powerful reasons for refusing leave. The appeal of the first Appellant is allowed under the Immigration Rules.

Proportionality

29. The immigration history of the second and third Appellants is not exemplary, but it is not poor. They speak English and are financially independent. They are not a burden on the taxpayer and are fully integrated into British society. They run a business employing 11 people. Other than the maintenance of immigration control, there is limited public interest in their removal because their presence is not detrimental to the economic wellbeing of the country. The factors in section 117B of the 2002 Act cannot be held against the second and third Appellants and are a neutral factor in the proportionality assessment following Rhuppiah [2016] EWCA Civ 803.

30. I find that the weight to be attached to the public interest in this case is somewhat limited because, whilst the Appellants have remained in the UK beyond the expiry of their leave, they have done everything possible to regularise their status. At the time of their application in December 2013, the first Appellant had been resident in the UK for seven years.

31. Applying Section 117B(6), the public interest does not require a person's removal where that person has a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect the child to leave the UK. Accordingly, the second and third Appellants succeed under Article 8 because their removal would be disproportionate in the circumstances. I allow the appeals of the second and third Appellants under Article 8.

Notice of Decision

The first Appellant's appeal is allowed under the Immigration Rules.

The appeals of the second and third Appellants are allowed on human rights grounds.

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

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

J Frances
Signed Date: 9th November 2016

Upper Tribunal Judge Frances

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal I have considered making a fee award and have decided to make a fee award of any fee which has been paid.

J Frances
Signed Date: 9th November 2016

Upper Tribunal Judge Frances