Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/16071/2015
IA/16076/2015
IA/16080/2015
IA/16083/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 October 2016
On 31 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

Sathiyaseelan [A] (first appellant)
Ponvily [S] (second appellant)
[K S] (third appellant)
[B S] (fourth appellant)
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr J Martin, Counsel instructed by Nag Law Solicitors
For the Respondent: Ms Fijiwala, Home Office Presenting Officer

DECISION AND REASONS
1. The four appellants are citizens of Sri Lanka. The first appellant, born on 30 May 1976, is the husband of the second appellant, who was born on 8 November 1976. The third and fourth appellants are their children born respectively on 12 January 2008 and 12 November 2010.
2. This appeal arises from the decision of the respondent to reject the appellants' application for leave to remain on the basis of their private and family life. Their ensuing appeal was heard by First-tier Tribunal Judge Wright. In a decision promulgated on 2 February 2016, the judge dismissed their appeal. The appellants are now appealing that decision.
Background
3. The first appellant entered the UK on 28 March 2006 and made an unsuccessful asylum claim. He remained thereafter without lawful leave.
4. The second appellant entered the UK on 20 June 2007 as a student and has remained in the UK without lawful leave since her leave expired in 2010.
5. Both the third and fourth appellants were born in the UK.
6. On 3 March 2015 the appellants applied for leave to remain in the UK on the basis of their private and family life. At the time of the application the third appellant had been in the UK for just over seven years.
7. The respondent did not accept that any of the appellants were able to meet the requirements of the Immigration Rules or that there were exceptional circumstances to warrant allowing the appeal outside the Immigration Rules.
8. With respect to the third appellant the respondent found that paragraph 276ADE(1)(iv) of the Rules was not satisfied on the basis that even though he had been living in the UK for seven years when the application was made it would not be unreasonable to expect him to move to Sri Lanka with his family.
Decision of the First-tier Tribunal
9. The appellants appealed to the First-tier Tribunal where their appeal was heard by Judge Wright. The judge first considered the appeals under the Rules. He found (no argument having been made to the contrary) that the first, second and fourth appellants could not satisfy the Rules.
10. In respect of the third appellant, the judge identified that, as he had been in the UK for seven years, the issue to be resolved was whether it would be reasonable to expect him to leave. The judge found that it would. His reasoning was that it is in the third appellant's best interests to remain with his family and his family would be removed as a unit to Sri Lanka. The judge found that the third appellant could "fairly easily adapt" to life in Sri Lanka on account of his young age, the absence of any significant medical issues or special needs, his familiarity with Tamil and the existence of a functioning education system in Sri Lanka.
11. The judge then turned to Article 8 ECHR and found there to be no compelling reasons to allow the appeal outside the Rules. He considered the factors set out in Section 117B of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") and found these did not support the appellants. In respect of the first and second appellants the judge highlighted their lack of English or financial independence and that their private life was established whilst in the UK unlawfully or precariously. The judge further took into account that the first and second appellants speak Tamil, spent much of their lives in Sri Lanka and have family in Sri Lanka.
12. The judge identified that the best interests of the appellants' children was a primary but not paramount consideration. He found it to be in their best interests to remain with their parents. Noting the requirements of Section 117B(6) of the 2002 Act, he found it not unreasonable for the third and fourth appellants to leave the UK with their parents who would be returning to a country where they had lived most of their lives and with which they were familiar.
Grounds of appeal and submissions
13. The grounds of appeal submit that the judge erred in law in his approach to the third appellant's case as there was a failure to properly address, taking into account his particular individual circumstances, whether it would be reasonable for him to leave the UK and move to Sri Lanka. It is argued that the judge failed to consider that the third appellant was born in the UK, has never been to Sri Lanka, has a limited grasp of Tamil, has strong friendships and connections in the UK and would be moving with his family to a region in Sri Lanka (Mullaithivu) where conditions are highly challenging and the educational system is poor.
14. The grounds also argue that if the judge erred in respect of the third appellant it follows, having regard to Section 117B(6) of the 2002 Act, that the judge equally erred in respect of the other appellants.
15. At the error of law hearing I heard submissions from Mr Martin on behalf of the appellants and Ms Fijiwala on behalf of the respondent. Both representatives recognised that the central issue in this matter is whether it is reasonable for the third appellant to be removed to Sri Lanka. Submissions were made in respect of the recent Court of Appeal decision MA (Pakistan) [2016] EWCA Civ 705 and the Upper Tribunal decision PB and Others (Article 8 conjoined family claims) Sri Lanka [2016] UKUT 00108.
16. The essence of Mr Martin's argument was that the judge had failed to recognise that the test of reasonableness required there to be strong reasons or significant weight to justify the removal of a child who has been in the UK for seven years. He cited the reference in MA at paragraph 49 to there having to be "powerful reasons". He highlighted that the precariousness of a child's immigration status does not mean little weight should be given to the private life they have developed in the UK. He also stressed that the test is not about the child's age. An 8 year old could develop (and in this case had developed) a strong attachment and connection to the UK such that his removal would be unreasonable in all the circumstances.
17. Ms Fijiwala highlighted that in MA (Pakistan) the test of reasonableness includes wider public interest factors and therefore there was no error on the part of the judge in taking such factors into account. She noted that the judge had considered a broad range of circumstances relevant to the third appellant including his age, the absence of leave to remain for his family, his ability to adapt, his educational circumstances and the absence of special needs or particular medical conditions that could not be treated in Sri Lanka, and based on these factors had reached a conclusion that was open to him on the evidence.
Consideration
18. The issue in this appeal is whether the judge erred in his approach to the test of reasonableness under 276ADE(1)(iv) of the Immigration Rules and Section 117B(6) of the 2002 Act.
19. In MA (Pakistan), Elias LJ explained the factors a Tribunal should take into account when applying the test of reasonableness (he found that the same test applies under the Rules and the 2002 Act). This includes that:
(a) A Tribunal must consider the child's best interests (which is a primary consideration).
(b) It can be reasonable to expect a child to leave the UK even if his best interests would be served by remaining.
(c) The fact that a child has been in the UK for seven years must be given significant weight when carrying out the proportionality exercise such that there should be strong reasons for refusing him leave. This is because after seven years a child will have put down roots and developed social, cultural and educational links in the UK (and removal will be highly disruptive)
(d) An assessment of reasonableness will depend upon a careful analysis of the nature and extent of the child's links to the UK and to the country of return. A fact specific analysis is required when considering whether the need for immigration control outweighs the best interests of a child.
(e) Regard must be had to the wider public interest in effective immigration control and in this context the conduct of the child's parents, and their immigration history, is relevant. See MA (Pakistan) at [41]-[42], [88] and [101]. As explained at [88]; "the conduct of the parents is relevant to their own situation which bears upon the wider public interest and does not amount to blaming the children even if they may be prejudiced as a result".
20. Reading Judge Wright's decision as a whole, it is apparent that before concluding that it would be reasonable for the third appellant to leave the UK he considered a wide range of factors relevant to his particular circumstances. This included:
(a) his age (8 years old).
(b) the time he has spent in the UK (8 years).
(c) the absence of serous medical conditions that could not be treated in Sri Lanka.
(d) His knowledge of Tamil: the judge made clear findings, which were open to him on the evidence and which I accept, about the third appellant's familiarity with the language.
(e) that he is a good student with no special educational needs.
(f) his ability to adapt to life in in Sri Lanka (the judge found that his age, health, linguistic ability and family circumstances meant he could "fairly easily adapt").
(g) his mother worked in Sri Lanka and has gained further education and qualifications which make were well placed to find employment on return.
(h) he has wider family in Sri Lanka.
21. The judge also took into account, and gave weight to the fact that, the third appellant's parents are, and have remained for some time, in the UK unlawfully and that the public interest weighs strongly against allowing them to remain in the UK given their poor English, lack of financial independence and immigration history.
22. The judge has considered the particular circumstances of the third appellant, taking into account factors such as his age, health, education, language ability and connection to Sri Lanka. It is apparent the judge has considered the third appellant's connections in the UK and the implications for him of moving to Sri Lanka. The judge also gave weight to the immigration history of the third appellant's parents and the public interest in effective immigration. By taking these factors into account, the judge was approaching the question of reasonableness in a way that was consistent with MA (Pakistan).
23. The judge did not refer to there being "strong" or "powerful" reasons to refuse the third appellant leave to remain but it is clear from the decision that he found such reasons from a combination of factors including the immigration history of the third appellant's parents and the relative ease with which he could adapt to Sri Lanka given his age, lack of medical or educational problems, and family connections in Sri Lanka.
24. For the reasons I have given, I am satisfied that the judge identified the correct legal test, applied it appropriately, and reached a conclusion that was open to him based on the evidence. Accordingly, I find that the judge did not make a material error of law.
Decision
1. The decision of the First-tier Tribunal did not involve the making of a material error of law and shall stand.
2. The appeal is dismissed.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 28 October 2016