Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16418/2015
IA/16434/2015; ia/16443/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 December 2016
On 16 January 2017

Before

UPPER TRIBUNAL JUDGE blum

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

TAMARA [S]
[T A S]
[T A F S]
(anonymity direction not MADE)
Respondents

Representation:
For the Appellant: Mr Walker, Senior Home Office Presenting Officer
For the Respondent: Ms J Bond, Counsel, instructed by the Irving & Co Solicitors

DECISION AND REASONS
1. This is an appeal by the Secretary of State for the Home Department (Appellant) against Judge of the First-tier Tribunal R Callender Smith's promulgated decision of 12 July 2016 allowing the Respondents' appeals against the Appellant's refusal, dated 14 April 2015, of their human rights claim.
Background
2. The 1st Respondent is a national of Jamaica, date of birth 8 January 1976. The 2nd Respondent and the 3rd Respondent are the daughters of the 1st Respondent. Their dates of birth are 26 April 2008 and 5 September 2013. Both were born in the UK and have lived in the UK since their birth. The 1st Respondent arrived in the UK on 18 October 2002. She overstayed. She made several applications for leave to remain but these were all rejected.
3. On 30 January 2015 she made a human rights claim for leave to remain on the basis that she had established a family and private life in the UK. This application, upon which the 2nd and 3rd Respondent were dependent, was refused by the Appellant. The 1st Respondent did not meet the requirements for leave to remain under Appendix FM as she had no partner and her children had not lived in the UK for 7 years prior to the date of the application. The Appellant was not satisfied that there would be very significant obstacles to the 1st Respondent's integration in Jamaica as she resided in that country for the majority of her life and would have knowledge of the culture, history and language of the country. The Appellant then considered whether there were exceptional circumstances which, consistent with the right to respect for private and family life, might warrant consideration of a grant of leave outside of the immigration rules. The Appellant considered that the Respondents could continue their relationships with family and friends in the UK through modern forms of communication. The Appellant noted that Jamaica offered educational facilities suitable for the 2nd and 3rd Respondents. The Appellant accepted that returning to Jamaica may be disruptive for the family but considered that the children were of an age enabling them to adapt to changes to their surroundings with minimal disruption. The Appellant considered that any private life acquired by the children would be limited due to their age. The Respondents had no lawful basis to remain in the UK and the life established by the 1st Respondent was done in the full knowledge that she had no lawful basis to remain. In reaching her conclusion the Appellants took into account section 55 of the Borders, Citizenship and Immigration Act 2009.
The First-tier Tribunal decision
4. The judge considered evidence adduced by the 1st Respondent and heard oral evidence from her. The 1st Respondent regarded her church as her family and did not want to be separated from any of the church members. She did not believe it would be fair for her children to relocate to Jamaica. They knew no one there and all their friends and immediate family were in the UK. The 2nd Respondent had been living in the UK for 8 years and 2 months and was settled at her school where she was doing well. She had not settled in previous schools and, to move the family to Jamaica where the lifestyle would be very poor, would be unreasonable as the children would not be able to adjust to such a dramatic change. The 1st Respondent, who had suffered abuse from an ex-partner in the past, would not be able to support the children in Jamaica as she had no qualifications and it would be difficult for her to find a job. Although she had a mother living in Kingston her mother was elderly, in bad health and was in a weak financial position. Furthermore she lived in a volatile environment. The 1st Respondent also had an aunt who was currently suffering from extreme health conditions and was unable to support the 1st Respondent.
5. The judge concluded that the 1st Respondent would be able to return to Jamaica despite the difficulties that she may encounter. There were said to be no exceptional circumstances that would breach Article 8. The judge noticed that, although the family members in Jamaica may be elderly and in ill health, that did not mean that they were unavailable as a background resource for more general help in re-establishing the 1st Respondent in Jamaica.
6. The judge then considered a letter, dated 21 January 2016 from the Lambeth Children social Care No Recourse Team, which indicated that the 1st Respondent had fled from domestic abuse from her ex-partner at the time of her resettlement by Lambeth, and a letter from the Crescent primary school dated 28 January 2016, relating to the 2nd Respondents circumstances in school and the 1st Respondents anxiety concerning the outcome of her court proceedings. Based on the 1st Respondent's oral evidence and this documentary evidence the judge believe that the 2nd Respondent's position was a fragile one in terms of her schooling. The judge noted that the 2nd Respondent had, "just properly established herself within this academic setting and a move at this stage, given her current age of 8 years and 2 months, is likely to have negative and deleterious consequences."
7. The judge concluded that the 2nd Respondent's length of residence the UK was significant and that the 2nd Respondent was clearly not responsible for the fact of her overstaying. The 2nd Respondent was said to be a young person who had clearly began to settle into a pattern of stable education that would be interrupted if she was removed with her mother and other sibling to Jamaica. The judge concluded that the 2nd Respondent met the requirements of section 117B (6). The judge proceeded to adopt a Razgar [2004] UKHL 27 analysis and concluded, in respect of the proportionality of the proposed removal, that the public interest did not require the 2nd Respondents removal. At [52] the judge stated, "given her length of residence, the letter from her school showing the fragility of the skills and integration to the school (she is in an intervention group in relation to mathematics), the impact of her being uprooted and taken to a country she has never seen or been to and the reality of the difficult and precarious situation she would be living in with her mother struggling -certainly at the start -to look after them financially and practically and in terms of appropriate accommodation, I find it would be disproportionate and not in the public interest to send the [2nd Respondent] to Jamaica." The judge consequently allowed the appeal on human rights grounds.
The grounds of appeal and the grant of permission
8. The Appellant noted that the Respondents had agreed that they could not succeed in the immigration rules and submitted that it had been implicitly accepted that the conditions of paragraph 276 ADE were not met including the reasonableness of the children returning to Jamaica. It is said that the Tribunal had no regard to this point. The Tribunal had regard to the 2nd Respondent's performance at school, the length of time she had resided in the UK and that she faced the prospect of being separated from her mother who the Tribunal found should, on the face of it, return to Jamaica with the youngest child. It was submitted that the Tribunal erred in considering such a narrow range of evidence as MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705 required consideration of much wider range of evidence such as the family's long-term and certain immigration status, the mother status as an overstayer, the absence of health difficulties, the awareness of Jamaican culture, the extended family network in Jamaica, the fact that the Respondents could all return as a single family unit and the nationalities of the family. It was argued that, on a simple quantitative scale, it was clear that there were more factors indicating removal than factors against. On a quantitative assessment it was, according to the Appellant, simply the amount of time that the 2nd Respondent had spent in the UK and her attendance at school that made it unreasonable to return her to her home country. There were however schools available in Jamaica so the only relevant factor was the amount of time the 2nd Respondent spent in the UK.
9. The First-tier Tribunal, in granting permission to appeal, stated that, "? in an otherwise careful decision and reasons it is nonetheless arguable that the judge failed to adequately consider the Jamaica nationality of all the [Respondents], the absence of health difficulties, the awareness of Jamaican culture, the extended family network in Jamaica, and the fact that this family unit could return together to Jamaica. It is arguably an error of law for the judge to have failed to consider those arguably important factors".
Submissions from the representatives
10. At the outset of the hearing I raised with Mr Walker my concern that the grounds, to the extent that they suggested it had been implicitly accepted by the Respondent's representative at the First-tier Tribunal hearing that the 2nd Respondent could reasonably return to Jamaica, were either inaccurate or disingenuous. The appeal before the first-tier Tribunal could not have succeeded under paragraph 276 ADE, in relation to the children, because they were under the age of 7 when the human rights claim was made. It was for this reason that the representative before the First-tier Tribunal accepted that the requirements of Appendix FM in paragraph 276 ADE could not be met. Mr Walker agreed that this concession had been made only as a result of the 2nd Respondent not being over the age of 7 when the application was made.
11. Thereafter Mr Walker relied on the remaining grounds of appeal and submitted that the judge had, in effect, allowed the appeal on the basis of the 2nd Respondent's length of residence in the UK only. Having drawn Mr Walker's attention to the judge's reasoning at [52], where he considered that the 2nd Respondent would face a "difficult and precarious situation" in Jamaica, Mr Walker indicated that he did not seek to take the grounds much further.
12. Miss Bond submitted that the judge looked at the range of factors in reaching his decision under section 117B (6) of the Nationality, Immigration and Asylum Act 2002, that he had weighed in the limited support that could be provided by the 1st Respondent's mother and aunt, and that the "fragile position" of the 2nd Respondent had to be considered with respect to the local authority report as well which indicated that the 2nd Respondent was vulnerable and was being housed in temporary accommodation. She had to flee her previous home and school, leading to significant upheaval, as a result of the domestic abuse faced by her mother. It was submitted that the judge's conclusion was one who was rationally entitled to reach.
Discussion
13. The 1st point in the grounds of appeal contended that the judge had no regard to the implicit acceptance at the First-tier hearing that it was reasonable for the children to return to Jamaica under paragraph 276 ADE. This is a wholly inaccurate assertion. There was no acceptance, implicit or otherwise, by the Respondents or their representatives, that it was reasonable, under paragraph 276 ADE (1)(iv), for the 2nd and 3rd Respondent to return to Jamaica. The clear and, with respect, obvious reason why it was conceded that the 2nd and 3rd Respondent could not meet the requirements of paragraph 276 ADE was because neither of them was over the age of 7 when their human rights applications were made. This much was accepted by Mr Walker at the Upper Tribunal hearing.
14. The remaining grounds contend that the Tribunal erred in law by relying on a narrow range of evidence in relation to the 2nd Respondent and failing to take into account a wider range of evidence as required by MA (Pakistan).
15. Following MA (Pakistan) and MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 450, in determining whether it was reasonable under section 117B (6) of the Nationality, Immigration and Asylum Act 2002 for the 2nd Respondent to return to Jamaica the judge was required to take into account the general spectrum of public interest factors. The grounds submitted that the judge failed to take into account these general public interest factors and that the judge failed to take into account other relevant matters such as the unlawful status of the family in the UK, the mothers overstaying, their cultural heritage, the family support in Jamaica, and the nationalities of the Respondents.
16. Having holistic regard to the judge's decision I am satisfied that the judge did take into account all relevant public interest factors and other material matters in determining whether it was reasonable for the 2nd Respondent to be removed to Jamaica. There is no basis for stating that the judge was not aware of the nationalities of the Respondents or that the Respondents had family residing in Jamaica (see [21], [22], [34], and [52]). Although the judge found that the 1st Respondent's mother and aunt were able to provide some general help as background resources, it is irresistibly clear from the judges conclusions at [52] that he was not satisfied they could provide financial support or accommodation. The judge did not reject the 1st Respondent's evidence that her mother was living in a volatile and violent inner city environment and had no access to basic amenities such as an indoor bathroom or regular running water. The judge was clearly aware that the 1st Respondent was a significant overstayer but additionally noted that, in respect of the 2nd Respondent, she could not be hold responsible for her unlawful presence in the UK as she had no control over her immigration status [47]. The Judge was demonstrably aware that the 2nd Respondent would be able to access schooling in Jamaica. There is nothing in the decision to suggest the judge was unaware that the Appellant proposed to remove the family as a single unit, and any suggestion to the contrary is frankly ludicrous.
17. When determining the reasonableness of the 2nd Respondent's removal to Jamaica the judge considered the evidence before him holistically including that relating to the highly unsettled life experienced by her as a result of her mother having to flee domestic abuse from her ex-partner (who was subsequently imprisoned). The judge was entitled to take into account the fragility of the 2nd Respondent's schooling, her clear vulnerability, and the significant disruption that she had already experienced and which would again be occasioned by her having to leave everything she had grown accustomed to and familiar with.
18. The judge was additionally entitled to take account the difficult and precarious position in which the 2nd Respondent (and her sister) would be living if removed to Jamaica. There was no criticism of the judge's factual findings and the 1st Respondent's credibility was not in dispute. The judge referred to the letter from Lambeth Children Social Care No Recourse Team which indicated that the family had been destitute and were unable to meet their day to day basic needs, and that the 1st Respondent had had to flee domestic abuse. It additionally noted that the 1st Respondent had a history of depression that was being managed with medication and counselling. The 1st Respondent's medical notes confirmed that she was suffering from depression and was receiving medication. The judge was rationally entitled to conclude, having regard to the 1st Respondent's lack of qualifications and the absence of any significant support network, and the fact that the family were destitute in the UK, that they would be living in a difficult and precarious situation, a highly material factor when assessing the best interests of the children under s.55 of the Borders, Citizenship and Immigration Act 2009 and in the proportionality exercise.
19. The judge considered the various public interest considerations, took into account the full range of evidence before him, applied the correct tests and committed no misdirection of law. Although the judges ultimate evaluation may be considered by some as generous it cannot be considered on any view perverse or one that he was not entitled to reach (consider Dasgupta (error of law - proportionality - correct approach) [2016] UKUT 00028 (IAC)). In the circumstances I am satisfied that the decision of the First-tier Tribunal does not disclose any material error of law and I uphold the First-tier Tribunal's decision allowing the appeal.

Notice of Decision
The First-tier Tribunal decision contains no error of law. The original First-tier Tribunal decision allowing the appeal stands.
I make no anonymity order.

16 December 2016

Signed Date

Upper Tribunal Judge Blum