Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19261/2015
IA/19260/2015
IA/19259/2015
& IA/19258/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 14th March 2017
On 15th March 2017

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

SOODESHNEE LOGANADEN (1)
GOVINDEN LOGANADEN (2)
DENISHTA LOGANADEN (3)
KELVYN LOGANADEN (4)
(ANONYMITY ORDER NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Turner, direct access Counsel
For the Respondent: Mr P Nath, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The appellants are all citizens of Mauritius. The first appellant is married to the second appellant, who is in her husband. The third and fourth appellants are their children. The third appellant was born on 6th September 2003 and the fourth appellant on 24th May 2011. The first appellant came to the UK in 2005 with entry clearance as a student. The second and third appellants arrived in the UK on 2nd December 2006 to join her as her dependents, initially with visit visas. The fourth appellant was born in the UK.
2. The first appellant had leave to remain as a student until 14th November 2012, with the second and third appellants having leave as her dependents, when an application to extend her leave was refused by the respondent. The first appellant appealed this decision but this was unsuccessful and she became appeal rights exhausted on 1st May 2013. She made a number of further student applications but all were unsuccessful. On 25th March 2014 the appellants applied for leave to remain on the basis of their private lives in the UK, this was refused on 3rd June 2014 without a right of appeal but judicial review proceedings meant that the respondent agreed to review the decision and issue an appealable decision if a refusal was maintained. This led to the decision refusing leave dated 11th May 2015. The appellants’ appeal against the decision was dismissed by First-tier Tribunal Judge Moxon in a determination promulgated on the 22nd August 2016.
3. Permission to appeal was granted by Judge of the First-tier Tribunal PJM Hollingworth on 30th December 2016 on the basis that it was arguable that the First-tier judge had erred in law in failing to provide sufficient reasons for the decision relating to the third appellant under s.117B(6) of the Nationality, Immigration and Asylum Act 2002, and thus in failing to properly conduct the proportionality exercise under Article 8 ECHR.
4. The matter came before me to determine whether the First-tier Tribunal had erred in law.
Submissions – Error of Law
5. In the grounds of appeal the appellants contend that the First-tier Tribunal failed to consider the fact that the third appellant was a qualifying child at the date of determination of the appeal as she had been in the UK for more than seven years. There was no reference to the impact of s.117B (6) of the 2002 Act on the outcome of the appeal and this was a serious error of law given what was said in Treebhawon and Others (Section 117B (6)) [2015] UKUT 00674. There was also a failure to give proper consideration to material evidence in the form of the expert report of Dr Halari, a child psychologist, with respect to the best interests of the child and whether it would be reasonable to expect the child to leave the UK. The treatment of the third appellant’s ability to acquire Creole is also perverse at paragraphs 41 to 42: it should have been concluded that the third appellant’s poor command of Creole would make it difficult for her to integrate socially and academically.
6. Mr Nath submitted that there was consideration of the best interests of the child appellants with reference to the relevant case law in the decision. There were reasons given why it was reasonable to expect the child appellants to go back with reference to their schooling and Creole abilities. There was also a reference to their lack of psychological problems if not to the psychological report. Ultimately he submitted that there was a reasoned decision that it was reasonable to expect the child appellants to return to Mauritius.
7. At the end of hearing I informed the parties that I found that the First-tier Tribunal erred in law and would be setting the decision of the First-tier Tribunal. I informed the parties that I would provide my full reasons in writing, and these are set out below. Both parties wished the matter to be remitted to the First-tier Tribunal for remaking, and in light of the extent of remaking which would involve three witnesses and over two hundred pages of documentary evidence I agreed that this course was correct.
Conclusions – Error of Law
8. It is clear that there was evidence before the First-tier Tribunal from a chartered clinical psychologist, Dr R Halari, that it was in the best interests of the third appellant to remain in the UK, see paragraphs 26 to 28 of the decision. There was also evidence from the third appellant’s school, cited at paragraph 24 of the decision, and from her father about her language abilities in Creole at paragraph 30 of the decision.
9. I find that the First-tier Tribunal failed to make findings on what was in the best interests of the third and fourth (child) appellants simply based on their own position as set out at paragraph 35 of EV (Philippines). This should have been the starting point so this primary consideration could be considered in the proportionality assessment, and it should have been informed by the report of Dr Halari or reasons given was to why the report was not to be given weight.
10. I find that the First-tier Tribunal also erred in law in failing to let the fact that the third appellant had been in the UK for ten years inform what are her best interests and in failing to start from a position that “powerful reasons to the contrary” were required to find that it was reasonable to require the third appellant to leave, in accordance with paragraph 49 of MA (Pakistan) & Ors v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705.
11. I also find that the First-tier Tribunal has failed to apply the above to s.117B(6) of the 2002 Act and to consider the proportionality of the appellants’ removal in light of the impact of this provision as set out in MA (Pakistan). Clearly it was an error to state in this case there were no compelling matters requiring consideration outside of the Immigration Rules at paragraph 50 given the presence of a child who had lived in the UK for ten years, and the analysis thereafter is an unlawfully inadequate engagement with s.117B(6) of the 2002 Act.

Decision:

1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

2. I set aside the decision with no findings preserved.

3. I remit the remaking of this appeal to the First-tier Tribunal.

Signed: Fiona Lindsley Date: 14th March 2017
Upper Tribunal Judge Lindsley