Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16558/2015
ia/16561/2015
ia/16562/2015
IA/16564/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 March 2017
On 29 March 2017

Before

UPPER TRIBUNAL JUDGE SMITH

Between

K K
T I
C L Z
C R M B
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mrs J Heybroek, Counsel, instructed by Nasim & Co solicitors Officer
For the Respondent: Mr S Staunton, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Two of the Appellants in this case are minor children. Accordingly, it is appropriate that their details and those of their parents be protected. Unless and until a tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify the Appellants or any member of their family. This direction applies both to the Appellants and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION AND REASONS
Background
1. By a decision dated 15 November 2016, I found an error of law in the decision of First-tier Tribunal Judge Sweet promulgated on 16 June 2016 by which the Appellants’ appeals were allowed on human rights grounds. I therefore set aside that decision. A copy of my error of law decision is annexed to this decision for ease of reference. In that decision, I gave directions for further evidence to be adduced in particular in relation to the position of the Fourth Appellant (hereafter referred to as “B”). B’s situation remains at the heart of these appeals.
2. The factual background to these appeals is set out at [2] to [6] of my error of law decision and I do not need to repeat it. There is no dispute as to the relevant facts. There has been one potentially significant development since the hearing of these appeals in the First-tier Tribunal and that is the period of time which B has spent in the UK. She arrived here with her mother on 2 March 2010. At the date of the hearing before me therefore she has been in the UK for a little over seven years. She therefore falls within the definition of a “qualifying child” for the purposes of section 117D Nationality, Immigration and Asylum Act 2002 (“section 117”). I deal with the legal significance of this development later in this decision.
3. I do not need to set out the legal provisions which are relevant to these appeals as those are adequately set out at [8] of my error of law decision.
Submissions
4. Ms Heybroek directed my attention to the factual development to which I refer at [2] above. Although she expressly did not concede the issue whether there are “very significant obstacles” in relation to the Appellants’ integration in Bangladesh due to the position of B, she accepted that she did not need to go so far as to make that submission because of the changed factual position. She accepted that B could not meet the Rules in relation to her period of residence (applying paragraph 276ADE(1)(iv)) because those requirements are to be met at the date of application. However, she submitted that due to B’s length of residence, these appeals should succeed because, she submitted, it is not reasonable to expect B to return to Bangladesh and, once that is accepted, section 117B(6) would no longer require the removal of the other Appellants as B’s parents and younger sibling.
5. Ms Heybroek accepted that, in accordance with the Court of Appeal’s judgment in MA (Pakistan) and others v Upper Tribunal and Secretary of State for the Home Department [2016] EWCA Civ 705 (“MA”), when assessing whether it is reasonable to expect B to return to her home country, I am required to take into account also any countervailing public interest factors. In these appeals, those comprise not only effective immigration control (due to the precarious and unlawful status of the Appellants’ stay) but also the allegation that the Second Appellant (B’s father) has relied on forged documents in a previous application. The Respondent’s decision refusing the Second Appellant further leave on that basis was upheld on appeal by First-tier Tribunal Judge Del Fabbro on 9 July 2013. Ms Heybroek submitted, however, that such countervailing factors had to be particularly strong to outweigh the significance of B’s residence in the UK in light of where the public interest is stated to lie in section 117B(6).
6. Ms Heybroek also directed my attention to the recent Supreme Court judgment in MM (Lebanon) and others v Secretary of State for the Home Department [2017] UKSC 10 in relation to what is there said about the intention behind the Rules and the role of best interests in that analysis.
7. In relation to the relevant evidence to be considered in this case, Ms Heybroek directed my attention to the UNICEF report and Mr Bannerjee’s evidence in relation to the discrimination faced by disabled children and their families in Bangladesh. She accepted that the latest medical information in relation to B shows that she has not suffered any epileptic seizures since 2011 and her medication was stopped in 2015. In relation to B’s sight, she is blind in one eye but the evidence shows that she has now undergone an operation at Moorfields Eye Hospital on her other eye and she is due to be reviewed in three to four months. In relation to B’s educational progress, Ms Heybroek relied on the evidence in the original bundle as updated by a letter from B’s school dated 25 November 2016 and an updated report from the educational psychologist dated 13 November 2016.
8. In response, Mr Staunton accepted that the central issue for me is whether it would be reasonable to expect B to return to Bangladesh. He asked me to note that B lived in Bangladesh until she was aged six. The background evidence as to the situation for disabled children and their families falls to be considered in that context. He also asked me to note that the Appellants have continued family support in Bangladesh which is relevant to the issue whether it would be reasonable to expect B to return there. In reply, Ms Heybroek directed my attention to the updated evidence in relation to the family support position in Bangladesh noting that B’s maternal grandparents are no longer working and cannot therefore provide financial support as they could in the past.

Evidence relating to B’s condition
9. The challenges faced by B can be summarised as severe learning difficulties, epilepsy and visual impairment. As I have already noted, B’s medication to control epilepsy has been stopped and she has fortunately not suffered any seizures since 2011 (see Health Care Plan dated 10 March 2017). B is blind in her left eye. The sight in her right eye is also impaired although she has had some recent, corrective surgery.
10. The largest problem for B appears to be her learning difficulties and developmental delay. The First Appellant (her mother) describes B as behaving like a two-year old when she arrived here from Bangladesh in 2010. She is now aged thirteen. The most up-to-date evidence in relation to her current difficulties is set out in the letter from the Head of Learning Support at her school dated 25 November 2016. That bears setting out in full:-
“[B] is a year 8 who joined [L] school in September 2015 from [UC} Primary. Our School is a Mainstream school with a Specialist Learning Support Unit, which caters for children with Special Educational Needs. [B] has a statement of Special Educational Needs for Complex Physical and Medical Needs, Complex Learning Needs, Behavioural, Emotional and Social Difficulties, Speech & Language disorder and is visually impaired (Blind in one eye).
Although [B] is integrated into a mainstream school, she follows a detailed personalised timetable in order to cater for her learning requirements. She is working considerably below her expected level for her age, the equivalent of a neurotypical 4 year old and we are using P Scales to monitor her progress and attainment. [B] is currently receiving High Needs Funding which has made it possible for the school to employ Specialist Teachers, Learning Support Assistants and a Welfare Carer to work with her on a full time basis. [B] cannot move around the building alone she needs 100% support all times. Her lessons are personal for her and consist of some literacy, numeracy, life skills such as personal hygiene, cooking and social integration. [B] is socially isolated because her communication is extremely limited. She only says 1 or 2 word sentences some of which is unrecognisable. She needs other ways to communicate her needs and familiar people around her to facilitate this. [B] has no sense of danger and is extremely vulnerable and needs adult protection at all times.
The school has also been working closely with the following external agencies to meet [B’s] needs: Complex Needs and Dyslexia Service, Department of Paediatric Neurology, Speech and Language Therapy, Sensory Service, Moorfield’s Eye Hospital Visually Impaired Team, Occupational Therapy Service and Educational Psychologist. As a result of this targeted support she has made significant progress.
[B’s] family have been working very closely with the school in order to address her needs and to implement the recommendations of the various external agencies involved with her [B] is very settled at [L] School and has made lots of friends. [B] is visibly different to other students and is open to bullying or possible abuse, if in an unprotected environment. I believe that if [B] is sent to Bangladesh, she would struggle with a very different curriculum and educational setting. She would not receive the care and support she needs from so many professionals. This could have a negative effect on her wellbeing and cause her a great deal of distress and confusion.”
11. It is not clear from the letter whether the writer has any knowledge of what facilities and educational support would be available to B on return to Bangladesh and I can therefore give that part of the letter only limited weight. I also note that, due to her developmental difficulties, B is significantly less independent and well-integrated than might be another child of similar age who has been in the UK for the period she has. However, it is clear from what is said in the letter that B has developed well with specialist support and I accept what is said in the letter about the degree of disruption which is likely to be caused to that development if she is returned to Bangladesh. Indeed, other evidence shows that B is likely to find it more difficult to adapt to change than might other children of her age due to her disabilities. There is for example recent medical evidence showing the difficulty which B has when dealing with the effects of adolescence and puberty and her susceptibility to mood changes.
12. The other evidence of significance is the letter from B’s educational psychologist which reads as follows:-
“Further to my report of 14/5/16, I have had the opportunity to see [B] briefly at the family home (27/10/16) and to look at recent reports from her school. I have also received an e mail update from Ms [LM], Head of Learning Support at [L] Community School.
As previously reported, [B] has severe and complex learning needs affecting all areas of her functioning in both home and school environments. She continues to attend the Specialist Learning Support Unit of her school. A large number of health and educational support services continue to be involved on account of her various needs.
The Annual Review of [B’s] Statement of Special Educational Needs (21/4/16) details the small steps of progress she has made and this has been updated by a recent mid-term report from school. Whilst her attainments are recorded using the ‘p’ (performance) scales which specify achievement before the pupil is registering on the (former) National Curriculum levels, the actual progress she has made is measured by percentage points within those levels. So, for example, whilst her attainments are at p4/p5 in general, over the past 6 months she has made 15% of progress within p5 for reading and 25% progress within p4 for numeracy. The aim is for her to consolidate her progress within p5 overall by the end of the year. Examples of the progress she has made are that she is beginning to understand that text conveys meaning, she can wipe her nose and eyes, she is joining a few spoken words into a short sentence-like structure and she is becoming more aware of school routines. In addition to her learning goals, there are targets now in respect of getting herself dressed after going to the toilet and being mindful of her personal belongings.
Ms [M] is very pleased with [B’s] rate of progress and believes that she is well placed at the school. In a couple of years thought will be given to placement at a post 16 college that offers specialist support for pupils with significant difficulties in learning. Parents believe that [B] is happy at the school and they are very pleased with her placement there. Both attend progress meetings and reviews.
From my own observations of [B] in the home environment I would say that there have been small steps of progress in terms of her mobility whilst I understand from parents that she is awaiting a cataract operation. She continues to be highly dependent on adult care and there is little to suggest that this will change substantially over the course of her life, not least from the point of her personal safety. A specialist setting such as at [L] Community School will certainly have it as a goal to develop her independence in lifeskills terms as far as possible and I have no doubt that she is suitably placed in such a setting.”
13. I turn then to the evidence of what the position would be for B on return to Bangladesh. I begin with the report entitled “Situation Analysis on Children with Disabilities in Bangladesh” dated 2014 and commissioned by UNICEF in Bangladesh. That report starts by recording that Bangladesh was one of the first countries to ratify the UN Convention on the Rights of Persons with Disabilities in 2007 and the Optional Protocol in 2008. Whilst the report notes significant challenges in achieving social inclusion, it also notes “promising progress”. The preface to the report though contains the following passage:-
“Children with disabilities are the least likely to receive healthcare or go to school. They are among the most vulnerable to violence, abuse, exploitation and neglect, particularly if they are hidden or put in institutions – because of social stigma or the economic cost of raising them. Children living in poverty are among the least likely to attend their local school or clinic but those who live in poverty and also have a disability are even less likely to do so. Gender is a key factor, as girls with disabilities are less likely than boys to receive food and care.”
14. Notwithstanding those comments, the Executive Summary notes that the Bangladeshi Government has taken a number of legislative and policy actions to nationalise its global commitments in this area and that “this is reinforced by a vibrant civil society, which plays a key role in promoting human rights and equity through provision of basic social services for children with disabilities”. That summary goes on to note however the societal belief prevalent in Bangladesh that disability is a curse and punishment for sinful behaviour. This also affects access to care, health, education and societal participation for disabled chidren. In terms of educational access, the report notes that children with disabilities had been the most marginalised in Bangladesh in 2002 but that progress has been made in this area since then. It notes however that the mainstream school system is not well equipped to deal with the varied needs of disabled children. There are however some special schools for children with disabilities and NGOs and other private foundations fund other educational initiatives. Although overall the report records an improving picture, it is clear that progress was at an early stage (certainly in 2014) and that B would not have access to specialised treatment within mainstream education as she has now.
15. Ms Heybroek also drew my attention to the statements of Mr Bannerjee. He has some background in dealing with special educational needs children and wrote a thesis on barriers to education for Bangladeshi students in Tower Hamlets. He supports the evidence of the Appellants that children with special educational needs in Bangladesh are seen as second-class citizens and a curse on their families. However, I give Mr Bannerjee’s evidence only limited weight. He does not profess to act as an expert in this case and his letters are those of a supporter. He does not say when he was last in Bangladesh or what experience or knowledge he has in dealing with children with disabilities or special educational needs in that country as opposed to in the UK.
16. I also take into account and accept Mr Staunton’s submission that the evidence about the difficulties which B would face on return to Bangladesh has to be viewed in the context that the Appellants lived in that country until B was aged six and have been found (in the father’s previous appeal) to have family support available to them there. Whilst I note (and accept) the updated evidence that B’s maternal grandfather is now retired and that he and his wife would possibly no longer be able to financially provide for the family on return, I do not accept his evidence (which is unsupported by other evidence) that B’s parents would be unable to find work. Nor is the support which B’s parents need restricted to financial support. It is clear from some of the evidence in the bundle that they struggle at times with managing B’s needs and those difficulties may be alleviated to some extent with family support available to them in their home country.
Discussion and conclusions
17. I start by considering B’s best interests which are a primary although not the only and not a paramount consideration. As I have already noted, B is severely underdeveloped for her age. This means as the evidence shows that she is not independent in the way in which most children of her age would be. She is therefore far more reliant on her parents than would be most young teenage girls. Although the evidence refers to her making friends, it also shows that her integration at school and relationships with other children are adversely affected by her disabilities. As such, her best interests are much closer to those of a young child where it is recognised that best interests are to remain with her parents wherever they may be.
18. In terms of whether B’s best interests favour her remaining in the UK rather than Bangladesh, I have already noted that, to some extent at least, she may be better supported by her parents in Bangladesh where they would have some other family support. That though is not the only consideration. Whilst in the UK she is receiving specialist education. Whilst she may not herself be as aware of the importance of that education because of her difficulties in understanding and engaging, there is evidence that she struggles with change. That is probably to be expected of a child who has limited understanding of her own situation. On the evidence, she is not perhaps making significant progress. However, within the parameters in which she is able to develop, it is clear that the specialist support she receives is helping her. On the evidence, therefore, I accept that B’s best interests are served by her remaining in the UK where she has access to specialist educational, developmental and health services as now.
19. I should also note at this juncture that B has a younger sibling born in the UK in 2013. She does not though suffer from B’s disabilities and I have very limited information about that child. She is aged just over four years. On the evidence, I find that her best interests favour her remaining with her parents wherever they reside.
20. As I have noted at [2] above, B has now resided in the UK for (just) over seven years. As such, she falls within the definition of a “qualifying child” in Section 117D. Section 117B(6) also provides that the public interest does not require removal of a person who is in a genuine and subsisting parental relationship with such a child if it would not be reasonable to expect that child to return to her home country.
21. I start by dealing with Ms Heybroek’s submissions in relation to whether there are “very significant obstacles” to the Appellants’ reintegration in Bangladesh as, although that was not argued in depth, Ms Heybroek did not concede the point. I am unpersuaded on the evidence that the Appellants’ case can succeed on this basis. The background evidence shows that there is some societal discrimination against disabled children and that facilities for their health and education are not as developed as in the UK. Whilst those may be obstacles, they do not reach the high threshold to amount to very significant obstacles, particularly in circumstances where the Appellants lived with B in Bangladesh until she was aged six years. I have explained why I do not give Mr Bannerjee’s evidence great weight. The other evidence comes only from the Appellants and B’s grandfather. That evidence speaks in general terms of abuse and discrimination from others but without providing any particulars of problems encountered in the past.
22. The issue of whether there are very significant obstacles though is no longer the relevant test. The question now is whether it is reasonable to expect B to return to Bangladesh. Both representatives accepted that this issue is to be determined in accordance with the guidance given by the Court of Appeal in MA. As noted at [46] of the judgment in those cases, the fact that a child has been here for seven years is a matter which carries significant weight. The Respondent’s policy recognises that there need to be strong reasons for refusing leave. The reasoning behind this is that a child after that length of time is likely to have integrated in social, cultural and educational terms. As I note at [17] above, though, the evidence in relation to B does not bear out that level of integration because of her developmental delay and learning difficulties. However, the need for strong countervailing public interest factors is predicated on the degree of disruption. Whilst therefore it is the case that B is less integrated than a child would usually be expected to be after her period of residence here, in many ways the disruption to her would be greater as she would be removed from what has become intensive personalised assistance to a more uncertain degree of assistance in Bangladesh. That is so even though she lived in that country until she was aged six years and the Appellants have family who could assist in her support there. As such, there would be a significant interference with B’s private life to the extent that her degree of development permits her to form one. I have also found that B’s best interests favour her remaining in the UK although this is a primary consideration and not necessarily determinative.
23. It is accepted that B cannot succeed under paragraph 276ADE(1)(iv) of the Rules as she was not resident in the UK for seven years as at date of application. As such, I consider the Article 8 claim outside the Rules. The extent of disruption to B’s private life is the starting point for my consideration of reasonableness of return and not its conclusion. I next need to consider the countervailing public interest factors. In the case of these Appellants the countervailing public interest factors are not insignificant. First, the Appellants have not had permission to be in the UK since February 2014. Even prior to that date their status was precarious. They could therefore have had no expectation of being permitted to remain. The private lives of the parents fall to be given little weight. Second, B’s father has been found to have used forged documents in his application for leave to remain as a student. His appeal against that finding has been dismissed at every level. He has not been prosecuted for any offence in that connection but it is clearly contrary to the public interest and, particularly the maintenance of effective immigration control that forged documents be relied upon in an application to remain. Third, the Appellants have clearly been in receipt of substantial amounts of public funding for B’s health and educational needs. They are not financially independent. It is clear from the evidence that B will require assistance with her day-to-day living probably for the rest of her life. Her continued education and healthcare needs are likely to have to be met at public expense. All of these factors are ones which I have to balance in the equation when assessing whether it is reasonable to expect B to return to Bangladesh.
24. This is a very unusual case and one which I have not found it easy to determine. On the one hand, B is less integrated than a child would usually be at her age and following her period of residence. On the other though, to the extent that she has been able to form a private life in the UK, the disruption which would be occasioned to it is more significant than would be a move for a child without her disabilities. She is likely to be more greatly affected by change. Yet a further consideration here is that the very specialised and intensive treatment provided to B has been and will continue to be funded at public expense. That is in itself a factor to be weighed in the balance. Added to that is the fact that the Appellants have never had an expectation that they would be allowed to remain here.
25. Having carefully considered the level of disruption to B of returning her to Bangladesh and notwithstanding the strength of the public interest in removal in these cases, I am (just) persuaded that it would not be reasonable (and also not proportionate) to return B to Bangladesh. It follows that section 117B(6) applies to B’s parents as there is no dispute that they have a genuine and subsisting parental relationship with her. The Third Appellant is their other minor child. Clearly if the parents are to remain in the UK, her appeal also must succeed.

DECISION
The appeals are allowed on human rights grounds

Signed Dated: 24 March 2017

Upper Tribunal Judge Smith

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16558/2015
ia/16561/2015
ia/16562/2015
IA/16564/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On Monday 14 November 2016

…………………………………

Before

UPPER TRIBUNAL JUDGE SMITH

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MRS K K
MR T I
MISS C L Z
MISS C R M B
Respondents

Representation:
For the Appellant: Mr S Staunton, Senior Home Office Presenting Officer
For the Respondent: Mrs J Heybroek, Counsel instructed by Nasim & Co solicitors

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Two of the Respondents in this case are minor children. Accordingly, it is appropriate that their details and those of their parents be protected. Unless and until a tribunal or court directs otherwise, the Respondents are granted anonymity. No report of these proceedings shall directly or indirectly identify the Respondents or any member of their family. This direction applies both to the Appellant and to the Respondents. Failure to comply with this direction could lead to contempt of court proceedings.

ERROR OF LAW DECISION AND DIRECTIONS

DECISION AND REASONS
Background
1. This is an appeal by the Secretary of State. For ease of reference, I refer below to the parties as they were in the First-Tier Tribunal albeit that the Secretary of State is technically the Appellant in this particular appeal. The Secretary of State appeals against a decision of First-Tier Tribunal Judge Sweet promulgated on 16 June 2016 (“the Decision”) allowing the Appellants’ appeal against the Secretary of State’s decisions dated 17 April 2015 refusing their human rights claims on the basis of their private and family life both under and outside the Rules. Permission to appeal was granted by First-tier Tribunal Judge Lever on 13 October 2016 on the basis that the Judge had arguably failed to provide adequate reasons for his conclusions both under and outside the Rules. The matter comes before me to determine whether the Decision contains a material error of law and if I so find, to either re-make the decision or remit the appeal for re-determination by the First-tier Tribunal.
2. The Appellants are nationals of Bangladesh. The First and Second Appellant are the parents of the Third and Fourth Appellants who were born on 12 February 2013 and 28 January 2004 respectively. The focus of the appeals and the Decision is the situation of the Fourth Appellant to which I will come in due course.
3. The Second Appellant was granted leave to come to the UK as a tier 4 student on 14 October 2009. That leave was valid until 31 October 2011. He applied for further leave in that category on 1 July 2011. He was refused leave on 23 January 2013 on the basis that he had produced forged documents with his application (those documents being a bank statement and letter from a bank in Bangladesh and an ETS certificate). The Respondent’s decision was upheld by First-tier Tribunal Judge Del Fabbro in a decision promulgated on 9 July 2013. It appears from the Respondent’s summary in the explanatory statement for this appeal that the Second Appellant was refused permission to appeal by both the First-tier Tribunal and Upper Tribunal and became appeal rights exhausted on 24 February 2014. I raise this by way of background as it may be of relevance to the proportionality assessment outside the Rules if the Judge erred in allowing the appeals under the Rules.
4. In relation to the First and Fourth Appellants, they arrived in the UK to join the Second Appellant as his dependents on 2 March 2010. It follows that, when the Second Appellant’s leave finally came to an end in February 2014, their leave also ended. As such the family has overstayed since February 2014. The Third Appellant was born in the UK on 12 February 2013.
5. On 31 March 2014, the First Appellant made the application which led to the Respondent’s decisions under appeal with the Second to Fourth Appellants as her dependents. Following an initial refusal with no right of appeal on 16 May 2014 and a pre-action protocol letter challenging that decision, the Respondent agreed to reconsider the decision and, if refused, to give notice of removal in order to generate a right of appeal. Following a judicial review which was settled on the basis of the Respondent again agreeing to reconsider her decision and to allow the Appellants to submit further representations and evidence, the Respondent finally refused leave to remain in the decisions of 17 April 2015 which are under appeal.
6. As I note at [2] above, the core of the Appellants’ claim is the position of the Fourth Appellant. When she arrived in the UK, she was aged six years. She is now twelve years. The Fourth Appellant has been the subject of a statement of special educational needs (“SEN”) since 2010. According to the summary of her condition in the Decision, in addition to her educational needs, she has “a number of physical and learning disabilities, including development delay, learning disability… left eye retinal detachment, right eye myopia, visual impairment, epilepsy, speech difficulty, neurological, feeding and nutrition, growth and a number of other physical conditions.”([17]). The Fourth Appellant received treatment in Bangladesh between May 2008 and February 2010 and the First and Second Appellants gave evidence that they had also visited India several times for her treatment.
The Decision
7. Having recorded much of the background as set out above, the Judge went on at [18] and [19] of the Decision to set out his conclusions as follows:-
“[18] It was accepted on behalf of the Appellants that they cannot meet the Immigration Rules in respect of Appendix M, but some reliance was made on the claim for a private life in respect of the First and Second Appellants pursuant to paragraph 276ADE of the Immigration Rules. In my view there are very significant obstacles to their returning to Bangladesh, even though they have family members, including both sets of parents in that country. The reasons are because of the attitude of society to disabled children and in particular to disabled girls. This is set out in the UNICEF report, Situation Analysis on Children with Disabilities in Bangladesh, but also further evidence has been provided by Shiv Banerjee, who though not an expert for the purposes of Tribunal proceedings, had carried out some research on life in Bangladesh for children with Special Needs. Mr Banerjee had provided two earlier reports at pages 96 to 99, dated 8th August 2013 and 19th May 2016, but also relied on his later statement of 23rd May 2016.
[19] I also take into account the Secretary of State’s obligation under Section 55 of the 2009 safeguarding and promoting the welfare of children. Furthermore, it was found in ZH (Tanzania) [2011] UKSC 4, that a primacy of importance must be accorded to the child’s best interests. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of a considerable force displace them. Furthermore, in Zoumbas [2013] it was found that where the best interests of a child can be outweighed by the cumulative effect of other considerations, no consideration can be treated as inherently more significant. Taking all these factors into account, not only do I find that the First and Second Appellants should succeed under paragraph 276ADE(vi) because of the very significant obstacles on their return into Bangladesh, but also all appeals should be allowed under Article 8 ECHR because of the exceptional circumstances which pertain.”
The Law
8. Paragraph 276ADE of the Immigration Rules
Private life
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. 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
(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 there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.

Section 55, Borders, Citizenship and Immigration Act 2009
Duty regarding the welfare of children
(1) The Secretary of State must make arrangements for ensuring that—
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2) The functions referred to in subsection (1) are—
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
…
(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).

Part VA, Nationality, Immigration and Asylum Act 2002
Article 8 of the ECHR; Public Interest Considerations
117A. Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts –
(a) breaches a person’s right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard –
(a) in all cases, to the considerations listed in section 117B, and
(b) …
(3) In subsection (2), “the public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).

117B. Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English –
(a) Are less of a burden on taxpayers, and
(b) Are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons –
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(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.
(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where –
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom
117D: Interpretation of this Part
(1) In this Part –
“Article 8” means Article 8 of the European Convention on Human Rights;
“qualifying child” means a person who is under the age of 18 and who –
(a) Is a British citizen, or
(b) Has lived in the United Kingdom for a continuous period of seven years or more;
“qualifying partner” means a partner who –
(a) Is a British citizen, or
(b) Who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 – see section 33(2A) of that Act).
…
The Respondent’s Grounds and the Parties’ Submissions before me
9. In relation to the Judge’s conclusions at [18] and [19] of the Decision, the Respondent makes the following complaints:
(1) That the Judge was wrong in his conclusions concerning “very significant obstacles” because he has failed to take into account that the family have a support structure in Bangladesh consisting of both sets of parents of the First and Second Appellant and a significant number of other family members and that the Second Appellant’s parents provide the family with financial support and have done so throughout the family’s stay in the UK.
(2) In the alternative, inadequate reasons are provided for that finding.
(3) The findings relating to the best interests of the child are unclear and/or inadequately reasoned.
(4) The finding that the appeals succeed also outside the Rules on the basis of Article 8 is based on an incoherent structure which does not reflect Razgar and is predicated only on the Appellants’ situation being “exceptional” without reasons; their position as overstayers and section 117B are also not taken into account.
10. Mr Staunton relied on the grounds. He pointed out that the Fourth Appellant has received medical treatment previously in Bangladesh. The family have a network of family members and friends. The Judge has provided limited reasons for the finding that there are very significant obstacles to the First and Second Appellants’ integration in their home country. The situation of the family would not lead to a finding that removal breaches Article 8 ECHR if properly reasoned.
11. Ms Heybroek for the Appellants submitted that the Judge had provided adequate findings for the conclusions at [18] and [19] of the Decision. She pointed out that the Respondent was not represented before the Judge and that, in essence, the Respondent is now seeking to run arguments which should have been put forward by representation in the First-tier Tribunal.
12. Ms Heybroek submitted that I should be slow to interfere with the Decision in those circumstances and also because the grounds are in reality a disagreement with the Judge’s findings and do not disclose any material error of law. She drew my attention to (ii) of the headnote in Greenwood (No 2) (para 398 considered) [2015] UKUT 00629 (IAC) which reads as follows:-
“(ii) At the stages of both granting permission to appeal and determining appeals, it is essential to expose those cases where, properly analysed, the challenge to the First-tier Tribunal’s decision is based on unvarnished irrationality grounds. The elevated threshold for intervention on appeal thereby engaged must be recognised.”
She also drew my attention to what was said by the Court of Appeal in AD Lee v Secretary of State for the Home Department [2011] EWCA Civ 348 at [26] and [27] as follows:-
“[26] We do not accept the criticism that the immigration judge in § 109 has selected evidence which points towards a particular conclusion. On the contrary, he has done what he can to reconcile and fit into a single frame the diverse and not always homogenous reports on R put in without challenge on the appellant’s behalf….the consequence of the diversity of professional evidence was that it fell to the immigration judge to make the most coherent picture he could out of it, and….he had a good foundation in the evidence for each element of the picture which he put together….
[27] The tragic consequence is that this family…will be broken up for ever…. Sometimes the balance between its justification and its consequences falls the other way, but whether it does so is a question for the immigration judge. Unless he has made a mistake of law in reaching his conclusion – and we readily accept that this may include an error of approach – his decision is final. In our judgment the immigration judge in the present case reached a permissible conclusion by means of a properly structured appraisal of the evidence, informed by a correct understanding of the legal importance of the child’s best interests.…”
13. In response to a question from me as to what are the “very significant obstacles” in relation to the First and Second Appellants (as opposed to the Fourth Appellant), she submitted that the case is not simply about the rejection of the child who is disabled but also about the rejection of the parents of a disabled child within Bangaladeshi society. She submitted that the Judge has taken into account all factors including the negative ones when reaching his conclusions (in accordance with what is said in Lee above). The Judge was obliged to take into account the children’s best interests (particularly those of the Fourth Appellant). The Respondent therefore had to show that the Judge’s conclusions were irrational.
14. Ms Heybroek also submitted that, even if the finding in relation to “very significant obstacles” was found to be in error, the appeals should still succeed outside the Rules because of the position of the Fourth Appellant. Although she accepted that the Fourth Appellant could not succeed under paragraph 276ADE and did not fall within the definition of “qualifying child” in section 117B(6), it was nonetheless the case that her best interests dictated an allowing of the appeal.
15. At the end of the hearing, I reserved my decision in relation to whether there is an error of law which I indicated I would provide in writing with reasons. Ms Heybroek asked that I reconvene the hearing, if I found a material error of law, before re-making the decision as the Fourth Appellant continues to be subject to updated SEN statements and would wish to provide up-to-date evidence. Both representatives agreed that, if I found a material error of law, the re-making of the decision could be carried out by this Tribunal. It is not appropriate for the appeal to be remitted.
Discussion and conclusions
16. I start by finding that there is an error of law in the Judge’s consideration of the appeals outside the Rules at [19] of the Decision. That is based not solely on an inadequacy of reasons but on a failure to follow a structured approach to the issue of proportionality. The Judge considers the Fourth Appellant’s best interests as the primary question as he is required to do. Although not expressly stated, I am prepared to infer that what the Judge there finds is that those interests require her to continue her education and treatment in the UK. However, although the Judge refers to the need to take into account the countervailing interests as part of the proportionality assessment there is no reflection of what those are in that paragraph. There is brief reference to the fact that the family are overstayers at [16] and to the Second Appellant’s use of false documents at [15]. However, there is no reflection of those factors, weighing as they do against the Appellants, being taken into account in balancing the family’s Article 8 rights and the Fourth Appellant’s best interests against the public interest. There is no reference at all to section 117B which is clearly of relevance in the assessment of Article 8 ECHR. The Judge is mandated by statute to take those factors into account and has completely failed to do so. The error of law is therefore not simply one of a failure to provide adequate reasons (although that ground too is made out) but a failure by the Judge to properly direct himself and a failure to take relevant matters into account when carrying out his assessment of proportionality.
17. That error though would not be material if the Judge’s conclusion in relation to whether there are very significant obstacles to the family’s integration in Bangladesh is sustainable. If the family meet the Rules because the public interest would be outweighed by the strength of the obstacles facing the First and Second Appellants, then the question whether the family could succeed outside the Rules does not arise.
18. I start by observing that, although I have taken into account what Ms Heybroek says about the cultural impact on the First and Second Appellants as parents of a disabled child, my reading of the Judge’s conclusion at [18], predicated as that is on the summary at [17] is based solely on the impact on the Fourth Appellant. I have carefully considered the evidence to which reference is made at [18] in order to ascertain whether that also supports a conclusion that the impact on the parents would be of a similar nature so that it could constitute a very significant obstacle. The evidence, particularly that referred to at [18], though is mainly directed at the position of the disabled child. I am quite unable to read it as providing the necessary support for the submission that the level of discrimination faced by parents of a disabled child reaches the threshold of very significant obstacles.
19. As I noted during the hearing, if the issue for the Judge was whether the Fourth Appellant meets the test under paragraph 276ADE(1)(vi), then based on the summary of the Judge’s findings at [17], I may have been prepared to accept that the Judge was entitled to reach the conclusion he did. However, that is neither the basis for his conclusion nor one which was open to him based on the wording of paragraph 276ADE(1)(vi). Put simply, the Fourth Appellant is not aged over eighteen years and therefore the subject of that Rule does not encompass very significant obstacles to her integration in Bangladesh. The position of a child is squarely posited on the length of residence in paragraph 276ADE(1)(iv) and (v).
20. I have also considered whether it can be said that application of paragraph 276ADE(1)(vi) requires a holistic assessment based on the family’s situation as a whole including the Fourth Appellant’s disability. However, not only is that not a permissible interpretation of the Rule but it is also not what the Judge purported to decide at [18] of the Decision. The position of the Fourth Appellant therefore requires to be considered outside the Rules. For the reasons at [16] above, the Judge has failed to properly consider the public interest when looking at her situation and there is therefore a material error of law in the conclusions both under the Rules and outside them.
21. For the above reasons, I find that the Decision does contain a material error of law and I therefore set the Decision aside. I have made directions below for the submission of further evidence and exchange of skeleton arguments together with a further hearing in order to re-make the decision.

DECISION
The First-tier Tribunal Decision did involve the making of an error on a point of law. I set aside the Decision
In relation to the re-making of the decision, I make the following directions:-
1. Within 28 days from the date of promulgation of this decision, the Appellants shall file and serve any evidence on which they intend to rely at the hearing to re-make the decision.
2. Within 28 days from the date of promulgation of this decision, the Appellants shall also file and serve an updated skeleton argument.
3. Within 28 days from the date of service of the Appellant’s evidence and skeleton argument, the Respondent shall file and serve a skeleton argument in response.
4. The appeal will thereafter be listed for hearing on the first available date with a time estimate of two hours.
5. The parties may apply to the Tribunal on notice to the other party if they seek a variation of these directions or any additional directions.

Signed Date 15 November 2016

Upper Tribunal Judge Smith