Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/18631/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 30th January 2017
On 09 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MAHMOOD

Between

ISSAC MATINS EKEOBA
(anonymity direction NOT made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Respondent: Mr M. Trevelyan, Counsel
For the Appellant: Mr P. Duffy, Senior Presenting Officer

DECISION AND REASONS
1. The Appellant appeals with permission against the decision of Judge Borsada (sitting at Birmingham on 4 January 2016) whereby the Secretary of State had refused the Appellant’s application for leave to remain and when she had made a decision to remove him by way of directions pursuant to section 10 of the Immigration and Asylum Act 1999.
2. The Judge of the First-tier Tribunal had refused the appeal based on both the Immigration Rules and Article 8 of the European Convention on Human Rights.
3. The Appellant’s grounds of appeal had contended that the Judge had:
(1) Erred in law when he concluded that it was reasonable for the Appellant’s child to leave the United Kingdom; and
(2) Misdirected himself as to the approach to proportionality pursuant to Article 8 taking into account section 55 of the Borders, Citizenship and Immigration Act 2009.
4. Permission to appeal was granted by First-tier Tribunal Judge Scott Baker.
5. At the hearing before me Mr Trevelyan had relied on a skeleton argument. He summarised to say that the real complaint concerned how the Judge had dealt with the Appellant’s son under Paragraph 276ADE of the Immigration Rules and in respect of “classic” Article 8. The Judge had concluded that it was reasonable for the son to leave and the error was that he had failed to take into account that the child had been in the United Kingdom for over 7 years. The cases of Azimi-Moayed and others (decisions affecting children: onward appeals) [2013] UKUT 197 and Zoumbas v Secretary of State for the Home Department [2013] UKSC had not been applied. Further, the Judge’s focus on the precarious nature of the family’s position in the United Kingdom as a factor in the reasonableness was wrong in principle. In respect of Article 8, no weight was given to the child’s best interests.
6. Mr Duffy said that although this was not the best written determination, paragraph 11 of the Judge’s decision was sufficient. He said that cases such as MK (India), MA (Pakistan) and EV (Philippines) all fed into proportionality. There had not been the best interest’s assessment but should the parents remain in the United Kingdom? In the end the Judge made an adverse decision. Another Judge may have made another decision but that does not mean that this decision is wrong. Mr Duffy said it was wrong to say that the immigration history of the parents is not a relevant factor. Mr Duffy said that there was no error of law and that the Judge’s decision should stand.
7. Mr Trevelyan had replied. I had reserved my decision.
8. At the time of the Judge’s decision the Appellant’s son was over 8 years of age. birthday. The Judge had accepted that the Appellant’s son had spent his whole life in the United Kingdom. There was also (at least) an implicit acceptance that the Appellant’s son had established private life in the United Kingdom.
9. The proper approach to family life in such cases has been the subject of considerable case law, at least since the Supreme Court’s decision in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166 which made it clear that the best interests of the child are a primary consideration. Thereafter Statute has also re-affirmed the importance of assessing the rights of children, including section 117(6) NIAA 2002.
10. Mr Duffy is correct that apart from the cases cited on behalf of the Appellant, the Court of Appeal has considered the issue in very many other cases. Including in the decision of MA (and others) v Secretary of State for the Home Department and others [2016] EWCA Civ 705, [2016] 1 WLR 5093. Elias LJ who gave the only reasoned judgment considered the previous cases and concluded,
“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. “
11. In my judgment, especially when reminding myself that this is a case involving a child who has only ever known the United Kingdom as his home, and noting the way in which even the Respondent had to classify the Judge’s decision at this hearing, I conclude that there was a material error of law. It was not mere terminological issues, but the structure of the decision which was wrong in law. Although the immigration history of the parents was relevant, the child’s seven years’ residence was a very important factor that was not given the prominence and priority that it should have been. The Court of Appeal’s judgment in MA (Pakistan) explains the approach that should have been taken by the Judge. The failure to do so, both in respect of the Immigration Rules aspect of the appeal and the Article 8 aspect means that it must be re-heard. The section 55 Borders, Citizenship and Immigration Act 2009 requirement was not properly applied to the proportionality assessment.
12. I therefore conclude that the Judge’s decision be set aside. There shall be a re-hearing at the First-Tier Tribunal.

Notice of Decision
There was a material error of law in the First-tier Tribunal’s decision. That decision is set aside.
No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Mahmood