Tribunal decisions

The decision

IAC-FH-NL-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/16876/2015
IA/16920/2015
IA/16943/2015
IA/16952/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 February 2017
On 3 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

Benjamin Bennett Safaro
Maame Forwaa Sahane
Benjamin Kobina Junior Safaro
Finola Asi Saforo
(ANONYMITY DIRECTION not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr A Burrett, Counsel
For the Respondent: Ms A Fijiwala, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the appellants against a decision of the First-tier Tribunal (Judge Farmer) who dismissed their appeal against the respondent’s decision made on 20 April 2015 refusing them leave to remain in the UK.

Background

2. The appellants are citizens of Ghana. The first and second appellants were born in Ghana on 12 October 1975 and 15 November 1982 respectively and their children, the third and fourth appellants were born in the UK on 19 February 2008 and 4 August 2013 respectively. The first appellant entered the UK as a visitor on 22 June 2006 intending to serve in the army, which he did until 2007 when he suffered injury and was medically discharged. His leave expired on 20 August 2007. The second appellant entered the UK on 5 January 2007 and their children were born in the UK. The appellants have subsequently remained without leave in the UK.

3. The appellants applied for leave to remain on 24 February 2015 supported by a letter of the same date from their solicitors. Further evidence was submitted by their solicitors with letters dated 26 March and 1 April 2015. The respondent’s reasons for refusing the application are set out in the reasons annexed to the decision letter of 20 April 2015. The respondent was not satisfied that the appellants could meet the requirements of the Immigration Rules and found that there were no exceptional circumstances justifying a grant of leave outside the Rules.

The Hearing before the First-tier Tribunal

4. The judge summarised the reasons for refusal in [5] of his decision and recorded that the representatives helpfully narrowed the issues prior to the hearing to clarify that the appellants were putting their case on the basis that the third appellant who is 8 years old had learning difficulties and was having significant input and assistance at his school. It was submitted that it was clearly not in his best interests to move to Ghana in circumstances where he was 8, had never left the UK, was integrated into society, thriving at school and where the level of education he would expect in Ghana would not meet his special educational needs and that he should not be removed and his family should remain with him [6].

5. The judge said at [9] that the issue he had to determine was whether the special needs of the third appellant were such that it would not be reasonable to expect him to leave the UK. He had considered this aspect when assessing whether there were any significant obstacles to the children relocating to Ghana under para 276ADE of HC 395 and found that it would be reasonable for them to relocate there for the reasons set out at [10]-[16]. He accepted that the third appellant had some learning difficulties which were dealt with by a group session once a week in a mainstream school but this would not present a significant obstacle to his moving to Ghana nor would it be unreasonable to expect him to do so [16]. The judge went on to consider the position outside the Rules and having reminded himself of the steps set out in Razgar [2004] UKHL 27 said that the issue for him to determine was whether the refusal was proportionate in relation to any article 8 rights which may be affected [21]. He reminded himself of the need to take into account the public interest side of the balancing exercise and of the provisions in s.117B of the Nationality, Immigration and Asylum Act 2002 as amended. He said that the rights of the child were a critical part of his article 8 evaluation and that when assessing the evidence, he had the best interests of the children in mind [26].

6. The judge went on to consider the Tribunal decision in Azimi-Moayed & Others (decision affecting children; onward appeals) UKUT 197 where the Upper Tribunal identified principles to assist in the determination of appeals where children are affected by immigration decisions. These are set out in [27]. The judge went on to consider ZH (Tanzania) v Secretary of State [2011] UKSC 4, Zoumbas v Secretary of State [2013] UKSC 74 and EV (Philippines) v Secretary of State [2014] EWCA Civ 874.

7. The judge summarised his findings in [31]-[32] as follows:

“31. I have given careful consideration to the factors set out by the Supreme Court. An important factor is that the appellant’s children are Ghanaian nationals and not UK citizens as the children were in ZH. The children were 12 and 9 years old and the appellant’s children are 8 and 2 years old. The children’s parents do not have leave to remain in the UK. It is in the children’s best interests to remain with their parents. I bear in mind the disruption to their education and the fact they speak only English. However, they are still at primary school level and are only in Year 3. Whilst there will inevitably be some disruption to their schooling the parents will be able to help them settle into school and will be able to assist them to adapting to schools in Ghana. I find that they will be able to adapt and cope with the changes in their education. For the reasons set out above I find that it is proportionate for the appellants to leave the UK and return to Ghana.

32. I have considered the case law Zoumbas v Secretary of State [2013] 1 WLR 3690 and EV (Philippines) v Secretary of State [2014] EWCA Civ 874. I have looked at all the factors set out by Ms Shaw in para 35 of her skeleton and in particular the issue relating to any linguistic difficulty the child might have in adapting to life in the country it is suggested they are removed to. I have dealt with this in my reasons and I find that whilst there is some speech delay [the third appellant] has adapted to mainstream schooling in the UK, speaks English, the official language of the schools and has even coped with learning some French in his current school. Nor is [the third appellant] at a critical stage of his education having only just completed Year 3 of primary school.”

Accordingly, the appeal was dismissed.

The Grounds and Submissions

8. In the grounds it is argued that the judge erred by failing to identify that the third appellant was a “qualifying child” and thereby significant weight must be attached to his claim to remain. The judge had erred in relying on the conclusions in Azimi-Moayed interpreting it as imposing an additional requirement on the third appellant to have been resident in the UK for seven years from the age of 4 whereas s.117D defined a qualifying child as including a child who had lived in the UK for a continuous period of seven years or more. The recent case of MA (Pakistan) v Secretary of State [2016] EWCA Civ 705 had confirmed that significant weight must be attached to the fact that a child had seven years residence in the UK. It did not make any reference to a requirement for the seven year period to start running after a child turned 4.

9. The second ground argues that the judge did not follow the approach taken by the Court of Appeal in MA (Pakistan) when considering the communication needs of the third appellant. In MA (Pakistan), Elias LJ had considered that it would be catastrophic for a child to leave the UK when he had been resident for over seven years, had communication needs which were being well-supported and would not receive the same support in the country of return. The grounds submit that the judge’s findings in relation to the third appellant conflict with that approach.

10. It is then argued that the judge failed to carry out a proper consideration of the third appellant’s best interests in failing to take all the relevant factors into account. The judge also failed to carry out properly the reasonableness test under s.117B(6)(b) of the Act. The fact of the third appellant being resident for seven years in the UK should have been given significant weight in the proportionality exercise and leave should be granted unless there were powerful reasons to the contrary. The judge not only failed to establish any powerful reasons, so it is argued, but had not established any reasons at all.

11. Mr Burrett adopted his grounds and submitted that the judge had been wrong to treat the decision in Azimi-Moayed as requiring the appellant to show seven years’ residence beyond the age of 4. He should have followed the guidance in EV (Philippines) and taken into account the factors set out there. In MA (Pakistan) it was confirmed that significant weight should be given to the fact that a child had been resident for seven years. The judge had wrongly discounted the relevance of the time the third appellant had spent in the UK. He had also failed to take proper account of the consequences of him returning to Ghana and losing the support he had been receiving in the UK. He had failed to appreciate the catastrophic nature of him having to leave the UK. He had not taken all relevant matters into account when considering his best interests and had failed to carry out a proper assessment of whether it would be reasonable for him to leave.

12. Ms Fijiwala submitted that the decision had to be read as a whole. The judge had been entitled to take into account the comments of the Tribunal in Azimi-Moayed. The judgment in MA (Pakistan) had not been issued at the date of hearing although it had become available before the decision was issued but nonetheless the judge had considered the links the third appellant had in the UK and had been entitled to take the view that his special needs were such that he had not developed strong links outside the family. The judge had considered the issues raised in EV (Philippines) when assessing the best interests of the third appellant and had given careful consideration to his special educational needs. His situation could not be sensibly compared with the position of the child considered in MA (Pakistan). She submitted that the judge had considered all the relevant case law and reached a decision properly open to him. His findings were consistent with the guidance given in MA (Pakistan).

Assessment of whether the Judge erred in law

13. Ground 1 argues that the judge failed to identify that the third appellant was a “qualifying child” within s.117B(6). Whilst this may not have been set out expressly, I am not satisfied that the judge did not realise that this was the case. He set out the provisions of s.117B at [25] and it was also clear that the judge was fully aware that the third appellant had been living in the UK since his birth and at the date of hearing was 8. The substance of ground 1 is that the judge erred by imposing an additional requirement on the appellant to show that he had been resident in the UK for seven years from the age of 4 and argues that he was wrong to do so on the basis of what the Tribunal had said in Azimi-Moayed.

14. The head note of that decision is set out at [27] where the Tribunal said that lengthy residence in a country other than the state of origin can lead to development of social, cultural and education ties that it would be inappropriate to disrupt in the absence of compelling reason to the contrary and what amounted to lengthy residence was not clear but past and present policies have identified seven years as a relevant period. The Tribunal noted that apart from the terms of published policies and rules, the seven years from age 4 were likely to be more significant to a child than the first seven years of life as very young children are focused on their parents rather than their peers and are adaptable.

15. In [28] the judge noted that the appellant’s children were still young, 8 and 2 respectively. They were in year 3 (referring to the third appellant) and not yet at school (the fourth appellant). He accepted that they would have friends but found that they would not have built up significant peer group relationships. Whilst they had known no other life in the UK where they were brought up with their parents they would have absorbed some of their Ghanaian culture. They were young and adaptable and had not yet had time to build up ties to their community and that their primary attachment and bond would be with their parents. The judge commented that in Azimi-Moayed reference was made to a period of seven years after the age of 4 years.

16. The judge found that this period of seven years from the age of 4 was of more importance and significance to the appellant’s children and that whilst the third appellant had lived in the UK for over seven years he had only lived for four years six months past the age of 4 years and this fell short of the seven years envisaged past 4 years of age. He also commented that as the third appellant suffered from communication difficulties, he would have built up fewer ties outside his immediate family and would be more closely connected to his parents and siblings. I am not satisfied that these findings and comments by the judge indicate that he was seeking to qualify the provisions of s.117B(6) by imposing what the grounds describe as an additional burden on the third appellant to have been resident in the UK for seven years from the age of 4. It was open to the judge to look at and assess the best interests of the third appellant, giving such weight as he felt appropriate in the circumstances of this appeal to the comments in Azimi-Moayed about the significance of residence after the age of 4 as opposed to before the age of 4.

17. It is correct that in MA (Pakistan) the Court of Appeal emphasised that the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise, particularly in the light of the respondent’s published guidance in August 2015 in which it was expressly stated that once seven years’ residence requirement was satisfied there needed to be strong reasons for refusing leave. The court commented that after such a period of time a child would have put down roots and developed social, cultural and educational links in the UK such that it was likely to be highly disruptive if the child was required to leave the UK. The court also added, and this is consistent with Azimi-Moayed, that that may be less so when the children were very young because the focus of their lives would be on their families but the disruption became more serious as they got older.

18. I am not satisfied that the judge was unaware of the importance and significance of the length of residence for a young child. It was for this reason that he dealt with this issue at some length in [28] and reminded himself of what the Supreme Court had said about the best interests of a child in ZH (Tanzania). He also reminded himself that when making the proportionality assessment under article 8, the best interests of a child must be a primary consideration which meant that they must be considered first although they could be outweighed by the cumulative effect of other considerations.

19. In paras [31] and [32] the judge took account of the fact that the third and fourth appellants were Ghanaian nationals and not UK nationals. Their parents did not have leave to remain in the UK. It was in their best interests to remain with their parents. He took into account the disruption to their education but the fact was that the third appellant was in year 3. He accepted that there would be disruption to their schooling but their parents would be able to help them settle into school and assist them to adapt in schools in Ghana. He found in all the circumstances that it would be proportionate for the appellants to be removed and that there was nothing compelling to warrant granting leave outside the Rules. This was a finding of fact properly open to the judge.

20. Ground 2 argues in substance that the judge failed to take proper account of the third appellant’s linguistic difficulties and communication needs. It was further argued that he failed to carry out a proper consideration of the third appellant’s best interests and failed properly to apply the reasonableness test. However, it is clear that the judge gave careful consideration to the third appellant’s needs. These are set out in [12]-[16]. The judge accepted that the third appellant did have special needs but nonetheless he had been able to attend a mainstream school. He did not have a permanent teaching assistant throughout the school day but he was taken off with seven children to receive specialist learning support but this was received only once a week. The judge took into account that he was making good progress and noted that there were no recent reports about his ongoing level of his needs. He concluded that whilst accepting that the third appellant had some learning difficulties this was dealt with by a group session once a week in his mainstream school. He did not find that this would present a significant obstacle to him moving to Ghana nor would it be unreasonable to expect him to do so. The standard of education in Ghana was unlikely to be the same as at an outstanding Ofsted school in the UK but that was not the test he had to apply [16]. In the light of the judge’s findings of fact, the third appellant’s situation cannot be equated with the situation of the child considered in MA (Pakistan). In any event, there is always a need for caution in comparing one set of facts with another: the judge’s responsibility is to apply the law to the particular facts relating to the appellants in each individual appeal.

21. I am satisfied that this is what the judge did in the present case. He has explained why he did not find that there would be significant obstacles to the third appellant moving to Ghana and he was therefore unable to bring himself within the provisions of para 276ADE. He was required to consider the best interests of the children and I am satisfied that he took all relevant matters into account. While he did not refer directly to paras 34-37 of EV (Philippines), the judge clearly took account of the factors set out in [35] of that judgment. He considered their age, the length of time they had been in the UK, how long they had been in education, what stage their education had reached, the fact that the children had never lived in Ghana and to what extent they would have linguistic, medical or other difficulties in adapting to life in there. There is no reason to believe that the judge did not take all relevant factors into account referring as he did to the factors in counsel’s skeleton argument: [32].

22. MA (Pakistan) confirmed that when assessing reasonableness under s.117B(6) that the inquiry was not limited to the best interests of the children but in accordance with MM (Uganda) v Secretary of State [2016] EWCA Civ 450, all relevant circumstances should be taken into account when making that assessment. The judge had to balance the children’s best interests and the impact of removal to Ghana with the fact that they were Ghanaian nationals, not UK citizens, and their parents had not had leave to remain in the UK since 2007.

23. I am satisfied that the judge took all relevant factors into account and reached a decision properly open to him on the evidence. It was open to him to find that it was reasonable to expect the children to return to Ghana. In making this assessment he took account of the significant impact of the length of residence of the third appellant and the fact that he had special needs arising from his learning difficulties but when the circumstances were looked at as a whole he was entitled to find that they were not such as to make removal unreasonable.

24. In summary, I am satisfied that the judge reached findings properly open to him for the reasons he gave and did not err in law.

Decision

25. The First-tier Tribunal did not err in law and the decision to dismiss the appeals accordingly stands. No anonymity direction was made by the First-tier Tribunal.

Signed H J E Latter Date: 2 March 2017
Deputy Upper Tribunal Judge Latter