Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/18697/2015
IA/18727/2015
IA/18747/2015
IA/18748/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 4th November 2016
On 24th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

(1) Mr Tumain [M]
(2) Mrs Grace [M]
(3) Master [N M]
(4) Miss [N M]
(ANONYMITY DIRECTION not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr I Hussain (LR)
For the Respondent: Mr D Mills (HOPO)

DECISION AND REASONS
1. The Appellants are citizens of Tanzania. They comprise a father and mother (the first and second Appellants) and their two children (the third and fourth Appellants). They were born respectively on 12th October 1976, on 18th December 1982, on 9th January 2013, and on 2nd December 2007. They appealed against the decision of the Respondent Secretary of State dated 7th May 2015 on the basis that their removal from the UK will constitute an unlawful interference with their private and family lives.
2. The Appellants' appeal was heard by First-tier Tribunal Judge Obhi at Birmingham Sheldon Court on 1st March 2016. In paragraph 10, the judge observed how the basis of the original claim was that the Appellant's eldest child, Miss [NM], was aged 7 years and that it would be unreasonable to expect her to return to Tanzania as she had never lived there, and for the other Appellants to be given leave to remain on the basis of family life. During the course of the appeal, however, the judge explained how the situation had changed in that the first Appellant now relied on the fact that he has been in the UK lawfully for ten years and that he should be permitted to remain in the UK on that basis.
3. At the hearing before Judge Obhi, it was accepted that the case had been adjourned on a previous occasion for the Home Office to consider whether the Appellant should benefit from the ten year lawful residence Rule as he had now completed ten years in the UK, but the Home Office had not been able to do that, and the Home Office Presenting Officer submitted that the application was still under consideration, although it was open to Judge Obhi to consider that the Appellant might succeed under that provision (see paragraph 12). The main thrust of the appeal, however, was in relation to Article 10. In this respect, Mr Hussain, who appeared on that occasion also in the Tribunal below, submitted that it would be unreasonable to expect a 7-year-old child to return to Tanzania, and if this was the case, then the parent should be allowed to stay in this country with their 7-year-old child (see paragraph 13).
4. In the judge's consideration of the appeal, she noted that there was "no evidence to suggest that the first Appellant has in any way breached the terms of his permission to remain in the UK" (paragraph 15). She went on to observe that, "the main part of the Appellant's appeal relates to his daughter [Miss NM], where it was claimed that she had been in the UK for a period of seven years and was settled" (paragraph 16). The judge also had before her a social worker's report from Kerry Fidler but this did not provide any additional information to that which the Appellants had provided, namely, that [Miss NM] is settled at school (see paragraph 17).
5. The judge went on to hold that removal would be disruptive to [Miss NM] but that, "she is only 7 years of age and she will need to move schools when she goes to secondary school" and that in any event the child [Miss NM]'s relationship was with her parents (paragraph 18).
6. The judge then went on to say of the Appellants that,
"They came to the UK as students, knowing that they would be here on a temporary basis. They chose to start a family in the UK with that knowledge and knowing that there was no guarantee that they would be able to remain in the UK. The Home Office considered that it is not unreasonable to expect the children to return with their parents to Tanzania" (paragraph 19).
The judge also went on to compare this case with that of EV (Philippines) [2014] EWCA Civ 84 and observed that, "in the present case, as in EV, neither of the Appellants nor any of the children have a right to be in the UK" (paragraph 22).
7. Consideration was thereafter given by the judge to whether the decision to remove was disproportionate and said that,
"I take into account the fact that the first Appellant may have ten years' lawful residence in the UK. On the facts of the case, it is highly likely that he does, and if the Home Office agreed then he is likely to be able to apply for further leave to remain on that basis" (paragraph 26).
However, the judge did not decide this question but did add that the only issue before her was whether this possibility may tip the balance in the Appellants' favour (paragraph 26).
8. In approaching the matter thus, it was then concluded, however, that, "at the time when these applications were made the first Appellant had not completed ten years' lawful residence in the UK", and although "the Home Office agreed to consider his application prior to the adjourned hearing but had not done so" there was nothing to stop the Appellant from making the application to be considered under the Rules (paragraph 27).
9. The appeal was dismissed.
The Hearing
10. At the hearing before me, Mr Hussain, appearing once again for the Appellants in this matter, submitted that one of the children, [Miss NM], had been in the UK now for seven years. He stated that the case of PD (Sri Lanka) [2016] UKUT 00108 now confirms that the Article 8 question has to be determined through the prism of children's rights, rather than through the prism of the parents' situation. He additionally relied upon the cases of MA (Pakistan) and Pereira [2016] EWCA Civ 705. To suggest, as the judge had done, that, as far as the Appellants were concerned, "they came to the UK as students, knowing that they would be here on a temporary basis" (paragraph 19), was incorrect as an approach to the determination of these issues.
11. Second, the judge was also wrong to have suggested that the situation here was similar to that in EV (Philippines) in that "neither the parents nor any of the children have a right to be in the UK" (paragraph 22). This is because the Appellants had at all relevant times always had lawful leave to remain.
12. Third, in MA (Pakistan) [2016] EWCA Civ 705, it was held that the judge below "was wrong to give way to the fact that the children were here on a precarious basis" because this suggested that the judge might have approached the reasonableness test too strictly (see paragraph 116). The same applied in this case.
13. Finally, the judge should have decided the issue of whether the principal Appellant had been in the UK for ten years lawfully, and that it was not enough to simply say that, "on the facts of the case it is highly likely that he does" qualify under the ten year Rule, and not least because this finding directly went to the question of whether the Appellants could succeed under Article 8 of the ECHR. The relevant date for consideration of whether the Appellants succeeded was the date of the hearing and not the date of the application.
14. For his part, Mr Mills submitted that the judge had clearly given consideration to the position of the daughter [Miss NM] (at paragraph 16), referring to the fact that she had been provided with a lot of information about [Miss NM]'s schooling, such that it could not be said that this had been overlooked in any way whatsoever. In fact, from paragraph 16 right the way through to paragraphs 23 to 24, there was proper consideration of the position of the child [Miss NM] in a detailed manner.
15. Eventually, at paragraph 28, the judge concluded that the public interest was in favour of the maintenance of a fair and effective immigration policy, and the judge was entitled to do so. The cases referred to could not assist the Appellant because in MA (Pakistan) the child had severe autism and in EV (Philippines) the parties were already settled here.
16. Finally, the judge was correct not to look at the long residence provisions because these had not yet been considered by the Secretary of State.
17. In reply Mr Hussain submitted that the Court of Appeal case of MA (Pakistan) cannot simply be distinguished on this basis because the court made it clear that it is improper to suggest that people who come on a temporary basis can be expected to leave automatically even when there is a child born to them. It had been observed there that, as far as the children are concerned, "they are not to be blamed for the fact that their parents overstayed illegally" (paragraph 103). In the instant case, however, the parents have not overstayed illegally at all. They had always been lawfully based in the UK. Second, the Secretary of State had been given ample opportunity to determine the issue of the ten year residence in this country. The judge had expressly referred to this. The Secretary of State had chosen, notwithstanding the grant of an adjournment to enable her to do so, to refrain from determining this question. This is clear from what the judge states at length at paragraph 12, where it was accepted by the Home Office Presenting Officer that the adjournment was expressly on this basis, and it is also clear from the fact that the Secretary of State then chose not to decide this issue (see paragraph 26).

Error of Law
18. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law such that I ought to set it aside (see Section 12(1) of TCEA 2007). My reasons are as follows. First, the judge's consideration of the situation of [Miss NM], the child who has been in the UK for seven years, begins at paragraph 16, and moves onto paragraph 17 with the consideration of the social worker's report from Kerry Fidler, following which it is concluded that, "I have no doubt that a move from the UK would disrupt [Miss NM]" (at paragraph 18). Thereafter, however, having established the baseline facts, the judge then goes on to observe how the Appellants came to the UK as students, knowing that they would be here on a temporary basis and that, "they chose to start a family in the UK with that knowledge and knowing that there was no guarantee that they would be able to remain in the UK" (paragraph 19).
19. In MA (Pakistan) [2016] EWCA Civ 705, it was noted that,
"The purpose underlining the seven year Rule is that this kind of reasoning ought not to be adopted in their case. They are not to be blamed for the fact that their parents overstayed illegally, and the starting point is that their status should be legitimised unless there is good reason not to do so" (paragraph 103).
20. Second, the judge also appears to have implied in this case that, just as in the case of EV (Philippines), so here, the position was that "neither of the parents nor any of the children have a right to be in the UK" (paragraph 22).
21. Third, the finding that, "on the facts of the case it is highly likely that" the principal Appellant complies with the ten year lawful residence requirement, "and if the Home Office agree then he is likely to be able to apply for further leave to remain on that basis" (paragraph 26) went substantially in favour of the Appellants being allowed to remain in the UK, given that, as the Court of Appeal observed in MA (Pakistan), "the starting point is that their status should be legitimised unless there is good reason not to do so" (see paragraph 103).
Remaking the Decision
22. I have remade the decision on the basis of the findings of the original judge, the evidence before her, and the submission that I have heard today. I am allowing this appeal for the following reasons. It is well-established that 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 the Immigration Directorate Instructions entitled "Family life (as partner or parent) and private life: 10-year routes". In this, it was expressly stated that once the seven years' residence requirement is satisfied, there need to be 'strong reasons' for refusing leave (see paragraph 11.2.4). In MA (Pakistan) [2016] EWCA Civ 705, the court observed (at paragraph 46) how, after a child has been in the UK for seven years, "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" (paragraph 46).
23. I conclude that there are no "strong reasons" for refusing leave in this case. The Appellants have not been living in the UK unlawfully. The first Appellant has lawfully been in this country for a ten year period. There has been a finding earlier by the judge below that "it is highly likely" that he would be able to comply with the ten years' lawful residence. But most importantly, the factors to which determinative weight have to be given with respect to [Miss NM]'s seven year residence in this country, which have spanned her entire life, are her immersion in all aspects of the life in this country, the critical stage of her personal and educational development which has been reached, and the minimal connections which she has with her country of origin. These matters were deemed significantly relevant in PD (Sri Lanka) [2016] UKUT 00108 at paragraph 40, and I hold them to be equally so determinative in this case.
Notice of Decision
24. The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is allowed.
25. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 23rd November 2016

TO THE RESPONDENT
FEE AWARD
As I have allowed the appeal and because a fee has been paid or is payable, I have made a fee award of the amount that has been paid or is payable.

Signed Date

Deputy Upper Tribunal Judge Juss 23rd November 2016