Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/15804/2015
IA/15808/2015
IA/15813/2015
IA/15815/2015

THE IMMIGRATION ACTS

Heard at Field House, London
Determination Promulgated
On 10 November 2016
On 24 November 2016

Before

LORD BANNATYNE
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR KS
MRS PS
IS
JS
(ANONYMITY DIRECTION MADE)
Respondents

Representation:
For the appellant: Ms Z Ahmad, Home Office Presenting Officer
For the respondents: Mr B Channer, instructed by MT UK Solicitors

DECISION AND REASONS

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

The First-tier Tribunal made an order pursuant to rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. We continue that order. Unless and until a Tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their 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.
1. Although this is an appeal by the Secretary of State we refer to the parties as they were in the First-tier Tribunal.
2. The appellants are nationals of India. The first and second appellants are husband and wife, the third and fourth appellants are their two sons. They appealed to the First-tier Tribunal against a decision by the Secretary of State dated 26 March 2015 to refuse their applications for leave to remain on the basis of their private and family life in the UK. Judge of the First-tier Tribunal Samimi allowed the appeals and the Secretary of State now appeals with permission to this Tribunal.
3. The background to this appeal is that the first, second and third appellants came to the UK as visitors on 17 November 2007 with leave to remain until 15 August 2008. The first appellant was served with an IS151A notice as an overstayer on 31 October 2008 and subsequently made applications for leave to remain on the basis of family life in 2008 and 2014 both of which were refused. A further application was made on 24 October 2014 and the refusal of that application is the subject of the instant appeal. The fourth appellant was born in the UK in January 2010.
4. The respondent refused the applications under Appendix FM and paragraph 276ADE of the Immigration Rules.
5. The First-tier Tribunal Judge firstly considered the circumstances of the third appellant [10-11]. The judge decided that it was not reasonable to expect the third appellant, who at that time had resided in the UK for over 8 years, to leave the UK and allowed his appeal under paragraph 276ADE (1) (iv). The judge went on to allow the parents' appeals under Article 8 of the European Convention on Human Rights having regard to section 117B (6) of the Nationality, Immigration and Asylum Act 2002. He allowed the appeal of the fourth appellant under Article 8 on the basis that his removal would amount to a disproportionate interference with his family life.
6. The primary challenge in the Secretary of State's grounds of appeal is in relation to the judge's finding that it would not be reasonable to expect the third appellant to leave the UK and the subsequent decision to allow his appeal under paragraph 276ADE. As the other two grounds, challenging the conclusions in relation to the first, second and fourth appellants, flow from the findings in relation to the third appellant we consider this issue first.
7. The relevant provisions of paragraph 276ADE for the purposes of these appeals are as follows;
"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. to S-LTR.4.4. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
?
(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
?"
8. The judge heard oral evidence from the first and second appellants as to their life in the UK and their families in India [7-8]. The judge found that there were discrepancies in their oral evidence "to the extent that does undermine their credibility as witnesses" [9]. The judge went on to find that the two children "have settled in the United Kingdom and have integrated to the community life here" and that they "have been brought up here and have fundamentally integrated in to the British way of life" [10]. The judge concluded at paragraph 11 that it would not be reasonable to expect the third appellant to leave the UK as he "has settled well in the society through his school, social network, and cultural assimilation to the English way of life".
9. The Secretary of State contends in the grounds that this assessment is incomplete because it fails to consider reasonableness in the context of the wider evidence, for example as to the fact that the family are Indian and would be removed together and that there was no evidence as to any health concerns or to show that he could not integrate into Indian society. In her submissions Ms Ahmad relied on the cases of Muse and others v ECO [2012] EWCA Civ 10 and MA (Pakistan) [2016] EWCA Civ 705. She submitted that the judge failed to look at all relevant factors.
10. Mr Channer accepted that the judge could have given further reasons but relied on the guidance in R(Iran) v SSHD [2005] EWCA Civ 92 and submitted that the Judge's reasoning is sufficient. He submitted that the reasoning shows that all of the evidence was taken into account. He submitted that the background had been explained in the first appellant's oral evidence as set out at paragraph 7 of the judge's decision.
Error of Law
11. In discussing the reasonableness test in section 117B (6), which is in identical terms to that in paragraph 276ADE (1) (iv) the Court of appeal in MA said at paragraph 47;
"? That will depend on a careful analysis of the nature and extent of the links in the UK and in the country where it is proposed [the child] should return."
12. In EV (Philippines) & Others v SSHD [2014] EWCA Civ 874 Lord Justice Christopher Clarke gave guidance to a tribunal assessing proportionality and the best interests of the child:
"34. In determining whether or not, in a case such as the present, the need for immigration control outweighs the best interests of the children, it is necessary to determine the relative strength of the factors which make it in their best interests to remain here; and also to take account of any factors that point the other way.
35. A decision as to what is in the best interests of children will depend on a number of factors such as (a) their age; (b) the length of time that they have been here; (c) how long they have been in education; (c) what stage their education has reached; (d) to what extent they have become distanced from the country to which it is proposed that they return; (e) how renewable their connection with it may be; (f) to what extent they will have linguistic, medical or other difficulties in adapting to life in that country; and (g) the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens."
13. In analysing the evidence in this case the judge found that the credibility of the first and second appellants was undermined. Therefore it is not clear what, if any, parts of their oral evidence as to the children, the family life in the UK and the circumstances in India, were accepted. Although he cited case law giving guidance on an assessment of the best interests of the children the judge failed to carry out any analysis of the best interests of the children in this case. The judge failed to engage in any analysis of the circumstances the family would return to in India or to engage in the type of analysis suggested in EV (Philippines).
14. We accept that reasons need not be elaborate or lengthy. However in this case the reasons given for finding that it would not be reasonable to expect the third appellant to leave the UK are inadequate. We therefore set that decision aside. As the appeals of the other three appellants flow from the judge's decision in relation to the third appellant they must also be set aside. The findings of fact are inadequate and cannot therefore be preserved.
15. The nature and extent of the judicial fact finding which is necessary in order for the decision to be remade is such that (having regard to the overriding objective in Rule 2 of the Upper Tribunal Procedure Rules 2008) it is appropriate to remit the case to the First-tier Tribunal.

Decision
The Judge made an error on a point of law and the determination of the First-tier Tribunal is set aside.
The appeal is remitted to the First-tier Tribunal to be remade.

Signed Date: 16 November 2016

A Grimes
Deputy Upper Tribunal Judge