Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/15707/2015
IA/15710/2015
IA/15712/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision & Reasons Promulgated
On 6th October 2016
On 18th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

THE Secretary of State FOR THE HOME DEPARTMENT
Appellant
and

GaganDEEP KAUR (1)
MANPREET SINGH (2)
SAMPAN SINGH (3)
(ANONYMITY DIRECTION not made)
Respondents

Representation:
For the Appellant: Mr C Bates, Senior Home Office Presenting Officer
For the Respondents: Mr I Palmer of Counsel, instructed by Jasvir Jutla & Co Solicitors

DECISION AND REASONS

Introduction and Background
1. The Secretary of State appealed against the decision of Judge Garbett of the First-tier Tribunal (the FTT) promulgated on 5th November 2015.
2. The Respondents before the Upper Tribunal were the Appellants before the FTT and I will refer to them as the Claimants.
3. The Claimants are Indian citizens. The First Claimant, born 30th April 1970, is the mother of the Second and Third Claimants, born 9th May 1993 and 5th November 1997 respectively. The Claimants are adults, although the Third Claimant was a minor when the Secretary of State's decision was made and at the time of the FTT hearing.
4. The First Claimant was granted a visit visa valid between 2nd May 2005 and 2nd November 2005. The Second and Third Claimants were granted visit visas between 1st July 2005 and 1st January 2006. The Claimants entered the United Kingdom together in August 2005, together with the husband of the First Claimant, the father of the Second and Third Claimants. He is not a party to this appeal. Home Office records indicate that he submitted an application for naturalisation in April 2006 which was refused on 14th August 2006 because he had submitted fraudulent documentation. Three years later he submitted a further application for indefinite leave to remain based on long residency, which was refused in January 2015.
5. On 28th January 2010 the Claimants applied for leave to remain in the United Kingdom relying upon family and private life. Both the Second and Third Claimants were minors when this application was made.
6. The application was refused on 9th April 2015. The Secretary of State found that the Claimants could not satisfy Appendix FM of the immigration rules in relation to family life. The Secretary of State also found that the First Claimant could not satisfy paragraph 276ADE(1) in relation to private life because she had not lived continuously in the United Kingdom for at least twenty years, and there would be no very significant obstacles to her integration into India.
7. The Second and Third Claimants could not satisfy paragraph 276ADE(1)(iv) because although they were under 18 at the time of application, they had not lived in the UK for at least seven years at the date of application.
8. The Secretary of State considered Article 8 outside the immigration rules and did not accept that there were any exceptional circumstances that would justify granting leave to remain outside the immigration rules.
9. The Claimants appealed to the FTT and the appeals were heard together on 2nd November 2015. The FTT found the appeals could not succeed under the immigration rules, either in relation to Appendix FM, or paragraph 276ADE(1). The appeals were also considered under Article 8 of the 1950 European Convention on Human Rights (the 1950 Convention) outside the immigration rules, and allowed, the FTT finding at paragraph 38;
"38. In conclusion, I find that the Appellants have built up a significant private life in the United Kingdom and have family life here. They have lived here as a close loving family since August 2005, for over ten years. Throughout this period they have established strong ties within the community in which they reside through regular participation in community functions; they are part of a close-knit extended Sikh community which provides emotional and financial support to them and have developed a social life. The private life of Manpreet and Sampan is considerable."
10. The Secretary of State applied for and was granted permission to appeal to the Upper Tribunal.
Error of Law
11. At the hearing before me on 30th June 2016, I heard submissions from both parties regarding error of law. On behalf of the Secretary of State it was argued that the FTT erred by allowing the appeals with reference to private life, making no reference to the fact that the Claimants had remained in the United Kingdom unlawfully following the expiry of their visit visas.
12. It was argued on behalf of the Claimants that the FTT had not materially erred in law. It was accepted that the FTT had found that the First Claimant had an abysmal immigration history, but it was submitted that the Second and Third Claimants should not be blamed for the conduct of their parents, and this was the approach adopted by the FTT, which was the correct approach when assessing proportionality.
13. I set out below my conclusions and reasons for finding an error of law and setting aside the decision of the FTT;
"14. The FTT allowed these appeals with reference to Article 8 outside the immigration rules. It was not an error to consider Article 8 outside the rules, and the Secretary of State does not contend otherwise.
15. The appeals have been allowed on the basis of the private life built up by the Claimants, and the FTT has attached very substantial weight in particular, to the private life established by the Second and Third Claimants.
16. The FTT set out section 117B of the 2002 Act in full. For ease of reference I set out below section 117B(4);
(4) Little weight should be given to -
(a) a private life, or
(b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.
17. The FTT does not apply section 117B(4) even though it is found that the Claimants had been in the United Kingdom unlawfully. It would appear that the First Claimant had been here unlawfully since the expiry of a visit visa on 2nd November 2005, and the Second and Third Claimants since the expiry of their visit visas on 1st January 2006.
18. The FTT failed to satisfactorily explain how, if statute states that little weight must be accorded to private lives established while the Claimants have been here unlawfully, it is appropriate to allow the appeals based upon their 'significant' and 'considerable' private lives.
19. What caused me to reflect before making my decision, rather than making my decision at the hearing, is the reference by the FTT to section 117(6) at paragraph 31. The Third Claimant was a minor when the Secretary of State's decision was made, and before the FTT. Guidance has now been given on this issue by the Upper Tribunal in Treebhawon and Others [2015] UKUT 674 (IAC), and PD and Others (Sri Lanka) [2016] UKUT 00108 (IAC). Neither of these decisions had been published when the FTT decided these appeals so the FTT did not have the benefit of that guidance.
20. However, although the FTT made reference to section 117B(6) and also made reference to the best interests of a child (which was applicable to the Third Claimant) the FTT did not satisfactorily analyse and explain why this was relevant to all three Claimants. Paragraph 38 of the FTT decision does in fact make it clear that the appeals were allowed on the basis of private lives established when the Claimants were here unlawfully, and therefore I conclude that the FTT's approach to Article 8 outside the rules, and consideration of section 117B is flawed and amounts to a material error of law. Therefore the decision is unsafe and needs to be remade.
21. When I announced at the hearing that I was reserving my decision, both representatives agreed that if an error of law was found as contended by the Secretary of State, it would be appropriate to have a further hearing before the Upper Tribunal and there would be no need for further evidence.
22. In my view it is appropriate to have a further hearing before the Upper Tribunal. It is not necessary, having considered paragraph 7 of the Senior President's Practice Statements, for these appeals to be remitted to the FTT.
23. The finding made by the FTT that these appeals cannot succeed under the immigration rules is preserved. The issue to be decided at the next hearing will be whether the appeals should be allowed with reference to Article 8 outside the immigration rules."
Re-making the Decision - Upper Tribunal Hearing 6th October 2016
14. At the commencement of the hearing I ascertained that I had received all documentation, upon which the parties intended to rely, and each party had served the other with any documentation upon which reliance was to be placed. I had the documentation that was before the FTT, that being the Secretary of State's bundle with Annexes A-H, and a bundle submitted on behalf of the Claimants containing 93 pages.
15. In addition I received a supplementary bundle on behalf of the Claimants comprising eleven pages, and written submission from Mr Palmer dated 5th October 2016. Mr Palmer submitted case law, Deelah [2015] UKUT 00515 (IAC), and Rajendran [2016] UKUT 00138 (IAC). Mr Bates submitted Miah [2016] UKUT 00131 (IAC).
The Secretary of State's Oral Submissions
16. Mr Bates relied upon the refusal decision dated 9th April 2015. I was asked to take into account the very poor immigration history of the First Claimant. Mr Bates pointed out that the Claimants are now all adults although Mr Bates accepted family life existed between the three Claimants, which would engage Article 8.
17. Mr Bates submitted that the family would be returned to India as a unit and so there would be no disruption to their family life. I was asked to accept that English is widely used in education in India, and although the Second and Third Claimants had entered the United Kingdom as minors and were now adults, they had clearly retained some links with India, and Mr Bates pointed by way of example to a reference for the Third Claimant at page 69 of the Appellants' bundle, which referred to his responsibilities at his Gurudwara.
The Claimants' Oral Submissions
18. Mr Palmer relied upon his written submissions although he did not rely upon 2.6 and 2.7 of those submissions, as the reference to GEN.1.9 of Appendix FM did not apply to paragraph 276ADE(1).
19. Mr Palmer submitted that the Second and Third Claimants now succeed under paragraph 276ADE(1), and this should be taken into account. If the Second and Third Claimants could succeed under the immigration rules there was no public interest in their removal. I was asked to accept that the Third Claimant could succeed under sub-paragraph (v) and the Second Claimant under sub-paragraph (vi) of paragraph 276ADE(1). I was asked to take into account the age of the Second and Third Claimants when they entered the United Kingdom and that they have been educated in this country, and integrated into British society.
20. I was asked to find it would not be proportionate to remove the Second and Third Claimants given the length of time they have spent in the United Kingdom, and to place substantial weight upon the fact that the Second and Third Claimants could now satisfy the immigration rules.
21. I was therefore asked to allow their appeals pursuant to Article 8 outside the immigration rules, and also to allow the appeal of the First Claimant, on the basis of her family life with her sons.
22. At the conclusion of oral submissions I reserved my decision.
My Conclusions and Resons
23. The FTT found, correctly, that the Claimants could not satisfy the provisions of Appendix FM, regarding family life, nor could they satisfy the requirements of paragraph 276ADE(1) of the immigration rules in relation to private life.
24. At the date of application, 28th January 2010, the Second and Third Claimants were minors, and they could not satisfy sub-paragraph (iv) of paragraph 276ADE(1) because they had not lived in the United Kingdom continuously for a period of seven years. They could not benefit from any of the other sub-paragraphs.
25. The First Claimant had not lived in the United Kingdom for twenty years, so could not satisfy sub-paragraph (iii). It was found that there were no very significant obstacles to her integration into India, so she therefore could not satisfy sub-paragraph (vi). Therefore as conceded by the Claimants' representative at the error of law hearing, the issue before the Upper Tribunal was whether the appeals could succeed by reliance upon Article 8 outside the immigration rules. For ease of reference I set out below Article 8 of the 1950 Convention;
"Right to Respect for Private and Family Life
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
26. I consider Article 8 with reference to the following factual findings.
27. The Claimants entered the United Kingdom in August 2005, lawfully, in possession of visit visas. They overstayed and have been in this country unlawfully, in the case of the First Claimant since 2nd November 2005, and in the case of the Second and Third Claimants since 1st January 2006. The First Claimant was 35 years of age when she entered the United Kingdom, the Second Claimant 12 years of age, and the Third Claimant 7 years of age. The First Claimant is now 46 years of age, the Second Claimant 23 years of age, and the Third Claimant 18 years of age.
28. The Second and Third Claimants have been educated in the United Kingdom. The Second Claimant has obtained both a Bachelors and Masters Degree, and the Third Claimant has started the first year of an undergraduate Degree at the University of Derby.
29. The Claimants live together. Very little evidence has been given about the status of the First Claimant's husband, the father of the Second and Third Claimants.
30. I have considered the guidance in SS (Congo) [2015] EWCA Civ 387 and note that in paragraph 33 it is stated that compelling circumstances would need to be identified to support a claim for grant of leave to remain outside the new rules in Appendix FM. This is not as strict as a test of exceptionality or a requirement of very compelling reasons as referred to in MF (Nigeria).
31. When considering Article 8 I have adopted the five stage approach advocated in Razgar [2004] UKHL 27 which involves answering the following questions;
(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights or freedoms of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"
32. It is accepted that the Claimants have family life. I have observed previously that very little evidence has been given in relation to the husband of the First Claimant, the father of the Second and Third Claimants, who arrived in the United Kingdom with the Claimants. It is not however contended that he has any right to remain in the United Kingdom.
33. In relation to the family life established by the Claimants, I do not find that there would be any interference with that family life if the Claimants were removed, as they would be removed together and could continue their family life in India.
34. In addition to family life, I accept that the Claimants have established a private life in this country. I find that Article 8 is engaged on that basis, but I find that any proposed interference with the private lives of the Claimants, would be in accordance with the law. This is because the Claimants cannot satisfy the immigration rules in order to be granted leave to remain.
35. I find that it is necessary to maintain effective immigration control, in the interests of the economic well-being of the country.
36. The main issue in these appeals relates to proportionality. This involves a balancing exercise.
37. I have taken into account the length of time that the Claimants have been in this country, and that the Second and Third Claimants entered as minors and have been educated here.
38. The FTT described the First Claimant as having an abysmal immigration history and I reach the same conclusion. The First Claimant entered the United Kingdom as an adult, knew that she was overstaying, and overstaying substantially. No attempt was made to regularise the immigration status of the family until January 2010, over four years after the visit visas expired.
39. The Second and Third Claimants are not to be blamed for the actions of their parents. I accept that they have integrated into British society, and although they were not entitled to be educated in this country, they have been educated, and should be commended upon their educational achievements.
40. I have taken into account the wishes of the Claimants to remain in this country, and the fact that they have not been back to India since August 2005. I find that they still have links to India, as they are citizens of that country, I am satisfied that they speak Punjabi, and they, according to their evidence, have maintained strong links with their Gurudwara. There are no relevant medical issues. The education received by the second and third claimants would assist their employment prospects in India.
41. In considering proportionality I take into account section 117B of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act).
42. Sub-paragraph (1) confirms that the maintenance of effective immigration controls is in the public interest.
43. Sub-paragraph (2) confirms it is in the public interest that people seeking to remain in this country can speak English, and sub-paragraph (3) confirms that it is in the public interest that people seeking to remain here are financially independent. I do not accept the Claimants have proved that they are financially independent. There has been no legal employment, they have received donations and support from friends and family and their Gurudwara. I accept that the Second and Third Claimants can speak fluent English though I do not find that the First Claimant has proved this to be the case. However, the Upper Tribunal found in AM (Malawi) [2015] UKUT 0260 (IAC) that a claimant can obtain no positive right to a grant of leave to remain from either section 117B(2) or (3) whatever the degree of their fluency in English, or the strength of their financial resources.
44. Section 117B(4) states that little weight should be given to a private life established by a person at a time when the person is in the United Kingdom unlawfully. The private lives established by the Claimants have been established when they have been in this country unlawfully. I therefore have no choice but to attach little weight to the private lives that have been established.
45. Therefore notwithstanding the length of time that the Claimants have been in this country, nor the educational achievements of the Second and Third Claimants, I find that the appeals cannot be allowed on the basis of the private lives they have established. It was argued in the written submissions made on behalf of the Claimants that the Second and Third Claimants were minors for some of the time that they have been in the United Kingdom, but the Upper Tribunal in Miah [2016] UKUT 00131 (IAC) confirmed that the factors set out at Section 117B(1)-(5) apply to all, regardless of age.
46. It has also been argued in the written submissions that the Second and Third Claimants now meet the requirements of the immigration rules. I find that is not the case, as the relevant date is the date of application not the date of hearing. If the Second Claimant made an application in reliance upon paragraph 276ADE(vi) he would have to show very significant obstacles to his integration into India. In my view he would however need to make such an application. The Third Claimant if he made an application pursuant to paragraph 276ADE(1)(v) would be able to succeed by showing that he is aged over 18, and under 25, and has spent at least half his life living continuously in the UK. He would, in my view, need to make such an application.
47. I refer to paragraph 57 of SS (Congo) which I accept is not exactly on point. In that case was it maintained that the Secretary of State should take into account when deciding whether to grant leave to enter outside the immigration rules, that the Sponsors may have a reasonable prospect within a period of weeks or months of being able to satisfy the rules. The Court of Appeal stated;
"In our judgment, however, this affords very weak support for a claim for grant of LTE outside the rules. The Secretary of State remains entitled to enforce the rules in the usual way, to say that the rules have not been satisfied and that the applicant should apply again when the circumstances have indeed changed. This reflects a fair balance between the interests of the individual and the public interest. The Secretary of State is not required to take a speculative risk as to whether the requirements in the rules will in fact be satisfied in the future when deciding what to do. Generally, it is fair that the applicant should wait until the circumstances have changed and the requirements in the rules are satisfied and then apply, rather than attempting to jump the queue by asking for preferential treatment outside the rules in advance."
48. As I have already accepted, the above is not exactly the same set of circumstances as in this appeal, but in my view the principle is that if it is said that the Second and Third Claimants can now satisfy paragraph 276ADE(1) then they should make the appropriate application for leave to remain based upon that paragraph.
49. I have considered all of the evidence placed before me, and taken into account the oral and written submissions made by both representatives. I have taken into account the educational achievements of the Second and Third Claimants, and the character references submitted in support. While I find that the appeal of the First Claimant has no merit, I regret that I must also dismiss the appeals of the Second and Third Claimants because the Secretary of State's decision does not interfere with their family lives, as the family will not be separated, and I must attach weight to the public interest in enforcing effective immigration control, and I must attach little weight to the private lives that they have established while they have been in this country unlawfully. I find that the decision of the Secretary of State is not disproportionate and does not breach Article 8 of the 1950 Convention.
Notice of Decision

The decision of the FTT contained an error of law and was set aside. I substitute a fresh decision. The Claimants' appeals are dismissed.

No anonymity direction is made.

Signed Date 9th October 2016

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The appeals are dismissed. There are no fee awards.

Signed Date 9th October 2016

Deputy Upper Tribunal Judge M A Hall