Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18427/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 25 January 2017

On 15 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SYMES

Between

M B
(ANONYMITY ORDER MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr C McWatters (counsel instructed by Brent CLC)
For the Respondent: Mr C Avery (Home Office Presenting Officer)

DECISION AND REASONS

1. This is the appeal to the Upper Tribunal of M L B a citizen of Jamaica born 11 February 1973, and her partner Robert Claude Curtis born 3 October 1972, and their children K E and M A, born respectively in the UK on 13 December 2007 and 7 February 2011, against the decision of the First-tier Tribunal of 7 July 2016 dismissing their appeals against refusal of their human rights claims.

2. The immigration history supplied by the Respondent sets out that Ms B entered the UK as a visitor on 11 June 1999; Mr Curtis entered similarly on 7 December 2002. Mr Curtis applied for further leave to remain which was granted from 7 August 2003 until 31 July 2004. The couple met in 2006. K was born 13 December 2007. An application by Mr Curtis for further leave with Ms B and K as dependents was made on 30 May 2009 and refused on 19 October 2009; a further application of 20 August 2009 was refused on 27 October 2009. On 22 December 2010 a reconsideration request was refused. Meshach was born on 7 February 2011. A further reconsideration request of 15 December 2012 led to the refusal being maintained on 13 March 2014. Notice of presence as overstayers was issued on 13 March 2014. A further request of 19 June 2014 led to the decision of 28 April 2015 to refuse a human rights claim which led to the present proceedings.

3. The application was made on the basis of the private and family life established by the family unit in this country.

4. The application was refused because the Respondent considered

(a) There was no settled or British citizen Sponsor to qualify for the Appendix FM partner route;
(b) This was an extant relationship between co-caring parents and thus the application did not qualify for the Appendix FM parent route;
(c) There was no viable application under the private life route in Rule 276ADE(vi) for the parents who had lived for much of their live in Jamaica and where they could be expected to be familiar with the customs, culture, language and social norms; Meshach had not lived here for seven years, and whilst Khyli had resided in the UK for seven years, her relocation to Jamaica was considered reasonable given that she would have her parents to support her;
(d) There were no exceptional circumstances outside the Rules justifying granting leave to remain.

5. The First-tier Tribunal dismissed the appeal, finding that

(a) In its view the notices of appeal of Mr Curtis and the children were invalid;
(b) Accordingly the appeal was being argued on an artificial footing: the premise that the Appellant would be departing the United Kingdom in the company of her children would "somehow ? compromise their human rights. That is a difficult argument to grasp given that the Appellant's children have no right to remain in this country and are here illegally";
(c) The presumption was that her appeal fell to be considered on the basis that the children would be leaving the United Kingdom with their father so as to avoid further unlawful presence here;
(d) Accordingly the social worker's report had no probative value;
(e) The best interests of the children were to reside with the single family unit;
(f) The parents had resided unlawfully in this country for many years, and the children had enjoyed the benefits of attending school and having the benefit of state education; they were acquainted with the way of the UK to the extent their youth permitted, and the older child was not yet immersed in British culture;
(g) Whilst Ms Bowen had established family life with her family here, that was a factor of little weight given it would be a matter of choice whether the family unit separated or remained together;
(h) The Appellant's private life was to be afforded little weight having been established over a period she was present unlawfully;
(i) The public interest balancing exercise was to be resolved against the Appellants as they had chosen deliberately to flout and abuse the UK's immigration laws.

6. Grounds of appeal to the Upper Tribunal contended that the First-tier Tribunal had erred in law in failing to expressly pose the question of the reasonableness of the elder child's departure from the United Kingdom and failed to take account of the country evidence relevant to the childrens' circumstances on a return to Jamaica.

7. The Upper Tribunal granted permission to appeal on 13 December 2016 because the repeated use of the word "illegal" to describe the family's status had arguably ruled out further consideration of the children's position, and that reasonableness had not been properly assessed, as the decision took as its starting point that the children had no right to be here and excluded the social worker report on that basis.

8. Before me Mr McWatters adopted the terms of the grant of permission to appeal and developed his grounds of appeal. Mr Avery did not seek to defend the approach of the First-tier Tribunal.

Findings and reasons

9. The relevant parts of the Immigration Rules are

"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 ?
(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 ?
(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."

10. As stated by Elias LJ in MA (Pakistan) [2016] EWCA Civ 705 at [13] and [21]:

"44 ? It seems to me that there are powerful reasons why, having regard in particular to the need to treat the best interests of the child as a primary consideration, it may be thought that once they have been in the UK for seven years, or are otherwise citizens of the UK, they should be allowed to stay and have their position legitimised if it would not be reasonable to expect them to leave, even though the effect is that their possibly undeserving families can remain with them.
45 ? wider public interest considerations must be taken into account when applying the "unduly harsh" criterion. It seems to me that it must be equally so with respect to the reasonableness criterion in section 117B(6) ? where the seven year rule is satisfied, it is a factor of some weight leaning in favour of leave to remain being granted.
46. Even on the approach of the Secretary of State, the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise. Indeed, the Secretary of State published guidance in August 2015 in the form of Immigration Directorate Instructions entitled "Family Life (as a partner or parent) and Private Life: 10 Year Routes" in which it is expressly stated that once the seven years' residence requirement is satisfied, there need to be "strong reasons" for refusing leave (para. 11.2.4). These instructions were not in force when the cases now subject to appeal were determined, but in my view they merely confirm what is implicit in adopting a policy of this nature. After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK. That may be less so when the children are very young because the focus of their lives will be on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child's best interests will be to remain in the UK with his parents as part of a family unit, and that must rank as a primary consideration in the proportionality assessment.
73 ? It may be reasonable to require the child to leave where there are good cogent reasons, even if they are not compelling ?"

11. Having considered the decision below, I am driven to the conclusion that it represents an inadequate determination of the issues that were before it. I can state my reasons briefly given that Mr Avery realistically conceded that the decision was indefensible.

12. Applying MA (Pakistan), Meshach was entitled to have his best interests assessed on the basis that his seven years of residence in the UK was afforded significant weight in the proportionality exercise. However, the repeated references to the lack of immigration status of the parents appears to have been employed here as a decisive trump which prevented the elder child from asserting any meaningful Article 8 interests in his own right. Thus the decision below discounted the value to be afforded his lengthy residence here without any regard to this principle. That is inconsistent with the principle identified by Lord Hope in ZH (Tanzania) [2011] UKSC 4 at [44]:

"The fact that the mother's immigration status was precarious when they were conceived may lead to a suspicion that the parents saw this as a way of strengthening her case for being allowed to remain here. But considerations of that kind cannot be held against the children in this assessment. It would be wrong in principle to devalue what was in their best interests by something for which they could in no way be held to be responsible."

13. Furthermore, the report of the independent social worker was indisputably relevant to the assessment of the best interests of the children. However it was wholly left out of account because of the First-tier Tribunal's belief that it became irrelevant if no child's appeal was not directly before it. However, that misunderstands the statutory framework, given that under section 117B(6) of the Nationality Immigration and Asylum Act 2002:

"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."

14. The definition of "qualifying child" is not dependent on the child's immigration status. It is the fact of significant residence rather than the immigration status held by a minor to which section 117B(6) looks.

15. These twin errors of law undermine the decision. This is not an appeal where there are meaningful findings upon which the Upper Tribunal can build, and thus it is allowed to the extent that it is remitted to the First-tier Tribunal for hearing afresh.

Decision

The appeal is allowed to the extent that it is remitted to the First-tier Tribunal for hearing afresh.

Signed: Date: 13 February 2017

Deputy Upper Tribunal Judge Symes