Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18487/2015
IA/18497/2015
IA/18512/2015
IA/18523/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 July 2016
On 24 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
v

SZ, SZ, KZ, MZ
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr S. Whitwell, Home Office Presenting Officer
For the Respondent: Mr A. Mahmood, counsel instructed by Morgan Hall solicitors

DECISION & REASONS
1. The Respondents, to whom I shall refer as the Claimants, are nationals of Pakistan and comprise a family. The first Claimant was born on [ ] 1973; his wife on [ ] 1981 and their two children were born in London on [ ] 2007 and [ ] 2009 respectively.
2. The first Claimant came to the United Kingdom on 22 September 2003 as a student. He married the second Claimant on 8 February 2006 and they entered the United Kingdom on 18 September 2006 on a student visa valid until 31 October 2006. Their leave to remain was subsequently extended until 31 October 2008 and the first Claimant became appeal rights exhausted on 7 March 2009. On 7 November 2011, the Claimants made human rights applications which were refused with no right of appeal. On 27 October 2014, an application for leave to remain on the basis of private and family life was made by Mrs Z, with her husband and children named as her dependants. This application was refused on 10 March 2015 and she appealed against this decision out of time (on 15 May 2015) however, in a decision dated 3 July 2015 and sent on 7 July 2015 the First tier Tribunal extended time to appeal so as to admit the appeal.
3. The appeals of all four Claimants were heard by Judge of the First tier Tribunal Callender Smith on 23 December 2015. In a decision and reasons promulgated on 8 January 2016, he allowed the appeals both on human rights grounds and under the Immigration Rules, in essence because K, the eldest child of the family, had resided in the UK for over 7 years and he found she would face very severe obstacles and difficulties if forced to relocate to Pakistan [47].
4. The Secretary of State sought permission to appeal to the Upper Tribunal in-time on 14 January 2016. The grounds of appeal asserted that the Judge had erred materially in law: (i) in failing to make a balanced consideration in terms of the assessment of paragraph 276ADE of the Rules, best interests and Article 8 of ECHR; (ii) in speculating on events upon which there was no verifiable evidence viz the ability of Mr and Mrs Z to find employment to support the family in Pakistan; (iii) in failing to apply the provisions of section 117B of the NIAA 2002.
5. Permission to appeal to the Upper Tribunal was granted by First tier Tribunal Judge Saffer in a decision dated 26 May 2016 on the basis that he was satisfied that it is arguable that the Judge made material errors of law in failing to consider the guidance contained within the relevant jurisprudence including Azimi-Moayad and EV (Philippines), failing to take into account within the proportionality balancing exercise the cost to the public purse of educating the children here and made unsustainable findings regarding the adult's ability to seek work in Pakistan.
Hearing
6. At the hearing before me, Mr Whitwell sought to rely on and handed up copies of the judgments in: E-A (Article 8 - best interests of child) Nigeria [2011] UKUT 315 (IAC); Azimi-Moayed (decisions affecting children: onward appeals) [2013] UKUT 000197 (IAC); Nasim and others [2014] UKUT 00025 (IAC); EV (Philippines) [2014] EWCA 874 and PD and others (Article 8 - conjoined family claims) Sri Lanka [2016] UKUT 00108 (IAC). He applied to amend the grounds of appeal at the last paragraph of ground 1 in light of the decision of the Upper Tribunal in PD at [20] which makes clear that there is no hard and fast rule requiring that the Secretary of State for the Home Department was obliged to determine the claim of the child first. Save for that he relied on the grounds of appeal.
7. Mr Whitwell submitted that what the Judge has done ultimately is taken a very narrow view of best interests and has not factored that out in terms of the other proportionality factors. He sought to rely on the decision in Azimi Moayed and the finding that the years four to eleven are formative but that in considering that the Judge has failed to focus on the fact that the eldest child was eight and a half at the date of the appeal. He further sought to rely on the decision in E-A (Nigeria) at [29] with regard to education and submitted that it was fair to say that the Judge has looked at best interests primarily through education and length of residence in the United Kingdom and that this leads on to EV (Philippines) at [35] and [36] where it was made clear that to look at best interests through the prism of education is too narrow. He drew my attention to [58] per Lord Justice Lewison and the question that needed to be asked was whether it was reasonable to expect the child to follow the parent with no right to remain to the country of origin?
8. Mr Whitwell further sought to rely on the decision in PD which he accepted was not out at the date of promulgation of the decision and reasons in this case but is relevant at [21]-[24] when considering best interests under paragraph 276ADE or Appendix FM because it cannot be looked at in the absence of consideration of the family members. The Judge looked at the best interests of the eldest child first and on the back of that allowed the appeals by other family members, which was contrary to the approach in PD. He submitted that it was necessary to take account of the fact that the children would be returning with their natural parents; the father has a masters degree; the mother has a history of employment and this would mitigate the change in circumstances. Mr Whitwell submitted that the appropriate questions have to be asked and reasoned and that this could be done on a re-making.
9. Mr Whitwell then made submissions in respect of Ground 3 to the effect that the Judge has not considered the section 117B factors and that, even though the appeal had been allowed under the Rules and ECHR, this was only in respect of the Claimant's eldest daughter and the appeals of the parents could only have been allowed under Article 8 and thus it was incumbent upon the Judge to consider section 117B.
10. Mr Whitwell then addressed Ground 2 of the grounds of appeal and the direct challenge to the Judge's reasoning at [41] about employment prospects on return to Pakistan; the Judge takes into account the fact that at [32] it would be very difficult for them to support themselves due to their age but they are only in their 40's. He submitted that this approach excludes self-employment and private sector employment; that there is nothing about quality of life in the jurisprudence. He invited me to set aside the decision for it to be re-made after a further hearing.
11. In his response, Mr Mahmood sought to rely upon a skeleton argument. He submitted that the Judge had at [12] made reference to section 117B but he accepted that there was no analysis. He further accepted that the remainder of the family would not qualify under the Immigration Rules. The Judge has accepted that this family needs to be together and united and significantly analysed where the family could live together and ultimately decided the best place for K was here and that meant that the parents and son would need to be here as well. He submitted that the decision in E-A was distinguishable because it was quite an old case decided prior to section 117 and contrary to [29] this Judge had not considered best interests entirely through the prism of education, but took other factors into account. These included the seven factors set out by Lord Justice Clarke in EV (Philippines) at [35] viz age, length of time in the United Kingdom, how long the child has been in education, to what extent he or she is distanced from the country to which they would return, how renewable their connection with it may be, linguistic or medical or other difficulties. Further, EV Philippines is an entirely different sort of case because the child did not meet the seven year requirement. See also PD at [36]. The test is whether it would be reasonable for K to live in Pakistan. She had never been to Pakistan. The judge identified this as an important factor.
12. Mr Mahmood submitted that the Judge had taken account of the public interest in deciding that it would not be reasonable for K to leave the United Kingdom and that her parents would also need to be here. The issue of employment in Pakistan is just one aspect. There is significant documentary evidence in the appeal bundle from the children's class teachers and headteacher that there would be a detrimental effect on their physical, emotional wellbeing. The Judge carefully assessed all the evidence and took this step by step approach in respect of various family members and concluded so far as the Rules were concerned that only K would succeed. However, he found that the best place for the family was here in the United Kingdom and thus he allowed the appeals under Article 8. He submitted that the grounds of appeal were a mere disagreement with the Judge's findings and there is no material error of law.
13. In his reply, Mr Whitwell stated that he was not asking me to view the case with a different emphasis but as one with gaps in the reasoning. There was no reference to the public interest or the cost of educating the two children in the United Kingdom. The Judge failed to specify which family members' appeals were being allowed under the Rules or Article 8 and failed to carry out the requisite assessment.
Decision
14. I have taken a careful note of the submissions made by both parties and Mr Mahmood's skeleton argument and I have also carefully considered the jurisprudence submitted by Mr Whitwell [6] above refers. I have concluded that there is no material error of law in the decision of Judge of the First tier Tribunal Callender Smith and thus his decision stands.
15. My reasons for so concluding are as follows:
15.1. the First tier Tribunal Judge properly took account of the evidence in respect of the best interests of the two child Claimants, particularly K and concluded at [45] in light of all the evidence, including that from her school, that she fulfilled the requirements of paragraph 276ADE(1)(iv) of the Immigration Rules viz she is under the age of 18 years and has lived continuously in the UK for at least 7 years and it would not be reasonable to expect her to leave the United Kingdom. I find that the Judge provided adequate and sustainable reasons for his decision in this respect and the challenge by the Secretary of State for the Home Department at Grounds 1 and 2 amounts no more than a disagreement with the Judge's findings of fact and does not disclose any material error of law
15.2. Ground 3 of the grounds of appeal contains a challenge to the decision on the basis that the First tier Tribunal Judge failed to apply the provisions of section 117B of the NIAA 2002 and that this was contrary to his statutory duty. The Judge directed himself with regard to the relevant provisions at [12] of his decision and stated that he "considered matters accordingly" but it is the case and Mr Mahmood accepted that he did not then go to apply those provisions. This is an error of law but I find it is not a material error in that:
(i) having decided to allow the appeal of K under paragraph 276ADE (iv) of the Immigration Rules, the Judge had already decided that it would not be reasonable for her to leave the United Kingdom and thus the provisions of section 117B (6) were fulfilled, given that the Claimants were not liable to deportation nor was it disputed that the parents had a genuine and subsisting relationship with K, who is a qualifying child;
(ii) in the recent decision by a Presidential panel of the Upper Tribunal in PD and others (Article 8 - conjoined family claims) Sri Lanka [2016] UKUT 00108 (IAC) at [42] the Upper Tribunal concluded that section 117B(6) should prevail, despite the fact that the parents were unlawful overstayers and [41] and at [34](c) that the public interest was engaged by virtue of the fact that the children had been and would continue to be educated at public expense.
15.3. Further, at [20]-[25] of PD the Upper Tribunal make clear that, in cases such as this, the task for the decision maker is not to consider the application from a child of the family in isolation but to consider the claims of the family as a whole in the round and determine them together. I do not consider, when the findings of the First tier Tribunal Judge are read as a whole, that he fell into error in this respect. Whilst the primary focus of his findings was with respect to the best interests of both children, particularly K, at [48] he made a clear finding that K "could not be left alone in the UK and, on that basis, her parents need to remain in the UK to continue to cherish and support her development along with the development of their son." This finding is entirely in accordance with the finding by the Upper Tribunal in PD at [31] that "viewed from the twin perspectives of the third Appellant's private and family life, the conclusion that his best interests would be best served by continuing to live in the United Kingdom, with his parents, follows inexorably."
15.4. It is further clear from the jurisprudence cf. PD at [40] that each case is fact sensitive. I find that the First tier Tribunal Judge carefully considered the oral and written evidence presented to him and provided adequate reasons for his findings, which are sustainable.
Notice of decision
16. The appeal by the Secretary of State for the Home Department is dismissed with the effect that the decision of First tier Tribunal Judge Callender Smith to allow the appeals of the family is upheld.

Deputy Upper Tribunal Judge Chapman

23 August 2016