Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber Appeal Numbers: IA/15421/2013
IA/15427/2013
IA/15309/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 3 December 2013
On 9 December 2013

Before

UPPER TRIBUNAL JUDGE MOULDEN

Between

[F P]
[E V]
[N V]
(Anonymity Direction Made)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr A Seelhoff of Seelhoff Solicitors
For the Respondent: Mr S Whitwell a Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellants are husband-and-wife and their daughter. They were born on 18 December 1977, 12 February 1979 and 14 October 2004 respectively. The husband and daughter are citizens of Mexico and the wife a citizen of Russia. They have been given permission to appeal the determination of First-Tier Tribunal Judge Kamara ("the FTTJ") who dismissed their appeals against the respondent's decisions of 2 May 2013 to refuse them further leave to remain in the UK on human rights grounds.
2. The husband entered the UK on 13 July 2004 with entry clearance as a student valid until 30 September 2004. He was granted further periods of leave to remain as a student until 31 August 2008. His application for leave to remain as a Tier 4 student was refused on 23 January 2009 because of his reliance on documents said to have been issued by the Cambridge College of Learning. The husband's appeal against that decision which included full consideration of the human rights of the family was dismissed. His appeal rights became exhausted on 15 September 2010. He made a human rights application on 24 October 2011, 10 days after his daughter reached the age of seven. That application was refused without a right of appeal on 1 February 2012. The husband's subsequent application for judicial review of that decision was settled by consent with the respondent agreeing to reconsider the claim. It is that reconsideration which has led to the immigration decisions against which the current appeals have been brought. The wife entered the UK as a student on 9 August 2001 with leave until 9 February 2002. She was granted further leave to remain in this capacity in successive grants until 2005. Thereafter she became dependant on her husband's claim. Their daughter was born in the UK.
3. The respondent considered the applications on human rights grounds under the Immigration Rules and concluded that the requirements had not been met. Whilst it was accepted that the daughter had lived in the UK for at least seven years it was said that the application nevertheless fell to be refused under the mandatory general eligibility requirements.
4. The appellants appealed and the FTTJ heard the appeal on 15 October 2013. Both parties were represented, the appellant by Mr Seelhoff who appears before me. The judge heard oral evidence from the husband. The FTTJ took the findings of fact made by the Immigration Judge who heard the husband's appeal in April 2010 as her starting point. She found the husband to be a credible witness and accepted his account of events.
5. The FTTJ addressed the Article 8 grounds on the basis of the jurisprudence outside the Immigration Rules. She applied the series of tests contained in the speech of Lord Bingham in Razgar [2004] UKHL 27. She found that the appellants enjoyed a family life together in the UK but if they were to be removed to either Russia or Mexico there would only be a temporary interference with that family life whilst entry clearance was sought to either of those countries for the individual or individuals who required it. However, their removal would have consequences of such gravity as potentially to engage the operation of Article 8. The interference was in accordance with the law and, although this was not expressly stated, by implication in the public interest.
6. In relation to proportionality the FTTJ first addressed the best interests of the daughter as a primary consideration concluding that it would be in her best interests for her to be cared for by both her parents. She went on to address the evidence relating to the daughter’s circumstances concluding that her educational prospects would be damaged in the short term if he had to live in either Mexico or Russia. There were no valid reasons for the daughter not to accompany her parents to Mexico or Russia and no reliable evidence that either spouse would have any real difficulty in obtaining entry as a spouse to the other's country. She concluded that the best interests of the daughter would be served by continuing to be cared for by her parents whether that was in Russia, Mexico or the UK.
7. The FTTJ went on to consider the private lives of the appellants, assessing the evidence including the parents’ immigration histories. The family were financially self-sufficient. She concluded that the circumstances of the appellants did not outweigh the respondent's concerns for the maintenance of effective immigration control and that the decisions did not amount to a disproportionate interference with the appellants’ private lives. She dismissed the appeals.
8. The appellants applied for permission to appeal which was granted by a judge in the First-Tier Tribunal who considered it is arguable that the FTTJ erred in her human rights assessment given that the daughter had spent all her life here which was more than seven years.
9. The grounds of appeal argue that the FTTJ erred in law. Firstly, by failing to determine the appeal under the Immigration Rules and in particular paragraph 276ADE. Secondly, by making an irrational assessment of the evidence in the light of the positive credibility finding for the husband and the evidence before her as to ethnic violence in Russia and the difficulties and delays in obtaining leave to enter and remain in Russia and Mexico.
10. Mr Seelhoff submitted that the FTTJ erred in paragraph 26 when she said; "there was no reliable evidence before me to show that there would be any real difficulty in either of the adult appellants obtaining entry as a spouse to the other's country". There was a great deal of evidence from the husband and in the appellants bundle to show that this was not the case. Both the husband and the wife would need to apply to go to the other's country from the country in which he or she was legally resident. That would not be the UK. He would have to apply from Mexico and she from Russia. Inevitably their daughter would have to be separated from one of them for however long the process took. In the case of Mexico this would be at least six months. In the case of Russia the position was less clear. The evidence referred to a quota although the wife would probably be exempt from this. The period would be a minimum of 180 days.
11. Mr Seelhoff submitted that the reasonableness test in paragraph 276ADE was not the same as the last of the Razgar tests, proportionality. Paragraph 276ADE dealt with the interests of the daughter alone, not the interests of the family. It was a more child orientated test. However, in reply to my question, Mr Seelhoff accepted that it was not possible to consider the daughter in complete isolation from her parents. I was referred to the discussion at paragraphs 37 to 41 and paragraphs 44, 47 and 48 of MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192.
12. Mr Whitwell accepted that the FTTJ did not in terms address paragraph 276ADE but argued that the references to this in paragraphs 15 and 16 provided a sufficient indication that a proper consideration of proportionality would encompass the reasonableness test under paragraph 276ADE. He also pointed to paragraph 17 of Mr Seelhoff's skeleton argument before the FTTJ in which it was argued that MF Nigeria indicated that the new Immigration Rules had not changed Article 8 and the requirements such as "reasonableness" needed to be interpreted in line with the Strasbourg jurisprudence. Mr Seelhoff interjected that he had modified this submissions during the hearing.
13. Mr Whitwell submitted that the determination dealt with the best interests of the daughter perfectly properly. The FTTJ's findings were open to her on all the evidence. The husband-and-wife were highly qualified and high-earning. The FTTJ proceeded on the basis that there would be a temporary interference with family life. Mr Whitwell relied on the recent judgement of the Supreme Court in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 (27 November 2013). Mr Whitwell argued that little had changed since the assessment of the human rights of the family carried out by the Immigration Judge in the husband's earlier appeal. If, following that determination, the family had taken steps to go and live in either Mexico or Russia they would be settled by now.
14. In his reply Mr Seelhoff emphasised that the evidence about racial prejudice in Russia and the difficulties in obtaining settlement in either Russia or Mexico had not been put before the Immigration Judge the earlier hearing. He accepted that if I found that there was an error of law and set aside the decision then the appeal could be re-determined without the need for either further evidence or further submissions. I reserved my determination.
15. I find that the grounds of appeal in relation to paragraph 276ADE are misconceived. This paragraph provides;
“Requirements to be met by an applicant for leave to remain on the grounds of private life
276ADE(1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.
276ADE(2). Sub-paragraph (1)(vi) does not apply, and may not be relied upon, in circumstances in which it is proposed to return a person to a third country pursuant to Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004."
16. In the refusal letter the respondent considered the provisions of this paragraph and accepted that the husband had a genuine and subsisting parental relationship with a child who had lived in the UK continuously for at least seven years immediately preceding the date of the application. However, the respondent did not consider and did not need to consider whether it would be reasonable to expect the child to leave the UK because the applications failed at the earlier hurdle set out in 276ADE(1)(i) because they did not meet the eligibility requirements in E-LTRP.1.2 and E-LTRPT.2.3. The reasons for these conclusions were set out at length earlier in the refusal letter and have not been disputed.
17. There is no material error of law because, had the FTTJ considered the human rights grounds under the Immigration Rules, they could not have succeeded. In any event I find that the proper assessment of proportionality carried out by the FTTJ properly encompassed any reasonableness test. I find that there is no reasonableness test which would concentrate on the interests of the daughter to any greater extent than was done by the FTTJ.
18. I can find no error of law in the FTTJ's thorough assessment of the evidence or her findings. The second ground which alleges irrationality in the assessment of the evidence is no more than a disagreement with the findings properly reached. The FTTJ's statement in paragraph 26 that there was no reliable evidence before her to show that there would be any real difficulty in either of the adult appellants obtaining entry as a spouse to the others country needs to be read in the context not only of the rest of that paragraph but the determination as a whole.
19. In the heading to the FTTJ's determination there is said to be "no anonymity direction". However, in paragraph 32, there is an anonymity direction "because of the age of the third appellant." Whilst I have not been asked to continue the anonymity direction I consider it appropriate to do so in the interests of the daughter who is a child. I make an order under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the appellants.
20. I find that there is no error of law and I uphold the determination.

………………………………………
Signed Date 5 December 2013
Upper Tribunal Judge Moulden