Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20094/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 August 2016

On 22 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

TAHERA [J]
(ANONYMITY DIRECTION not made)
Appellant
and

Secretary of State FOR THE Home Department
Respondent

Representation
For the Appellant: Mr R Singer, Counsel instructed by Capital Solicitors
For the Respondent: Mr S Walker, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal against the decision of First-tier Tribunal Judge Seelhoff, promulgated on 9 December 2015, whereby he dismissed the appellant's appeal against the decision of the respondent to refuse to grant her leave to remain in the UK on the basis of her private and family life.

Background and Immigration History
2. The appellant is a citizen of Bangladesh born on 10 March 1984 who entered the UK as a visitor on 18 January 2007 with her son who was born on [ ] 2004.
3. Since entering the UK the appellant has made several applications for leave to remain, all of which have been refused. The most recent application was made on 18 December 2013 on the basis of her private and family life and refused on 9 April 2014. The respondent's reason for refusing the application, as set out in her letter of 9 April 2014, was that the appellant was unable to satisfy the requirements of either Appendix FM or Paragraph 276ADE of the Immigration Rules and there were no exceptional circumstances to warrant a grant of leave outside the Rules. The respondent recognised that the appellant has sole parental responsibility for a child under 18 who has lived continuously in the UK for over 7 years but found that it would be reasonable to expect the child to leave the UK as he is a national of Bangladesh and would be returning with his mother as a family unit.
4. The appellant appealed and the appeal was heard by First-tier Tribunal Judge Pears. In a decision promulgated on 6 January 2015, Judge Pears allowed the appeal. The matter came before Upper Tribunal Judge Farrelly who found that Judge Pears had made an error of law and remitted the appeal to the First-tier Tribunal. The appeal was then heard by First-tier Tribunal Judge Seelhoff who, in a decision promulgated on 9 December 2015, dismissed the appeal.
Decision of First-tier Tribunal Judge Seelhoff
5. Judge Seelhoff found that the appellant had used deception to obtain permission to enter the UK using documents obtained fraudulently and had remained in the UK unlawfully. He also found that she had not been the victim of domestic violence as she had claimed. He used strong language in characterising the conduct of the appellant. At paragraph [42] he stated: "I find that the appellant's actions in terms of UK immigration have been wholly cynical and motivated by a desire to manipulate and get around the systems of immigration control".
6. Having made findings in respect of the appellant's conduct, the judge turned to consider the position of her son. The decision includes a detailed consideration of his circumstances. At paragraph [44] the judge noted the length of time he had lived in the UK (9 years) and that he had been of school age for seven of these years. At paragraph [45] the judge considered how the appellant's son is progressing at school, referring to school reports and his stage in the exam cycle. At paragraph [46] the judge discussed his family situation, and relations with aunts, uncles and cousins. The judge considered the ages of the appellant's cousins and his relations with them (the judge found the appellant is likely to be very close to his cousins). At paragraph [47] the judge considered the appellant's knowledge of the Bengali language and the objective evidence (or lack thereof) before him as to schooling in Bangladesh. At paragraphs [48] - [49] the judge considered the family's financial circumstances and the extent to which the financial support the appellant and her son receive in the UK could continue in Bangladesh.
7. At paragraph [51] the judge found that it is in the best interests of the appellant's son to remain in the UK with his mother and extended family. He then, having regard to the question posed at paragraph 276ADE and EX.1 of Appendix FM, considered whether it would nonetheless be reasonable to expect him to relocate to Bangladesh. At paragraph [53], the judge stated:
"I find that the extent of the abuse of Immigration Control is such that I find that it is reasonable for the appellant's son to be expected to leave the UK bearing in mind that he will be leaving with his mother and going to a country where he is likely to have significant familiarity with the language and where it is likely that the family retains significant ties."
8. The judge then considered Article 8 outwith the Immigration Rules with reference to section 117B of the Nationality, Immigration and Asylum Act 2002 ("the 2002" Act). At paragraph [56], he stated that he was required to attach "virtually no weight to any private life developed in the UK by the appellant" and
"? that the appellant is not related to a qualifying child for the purposes of 117B(6) of the 2002 Act for the reasons I have set out above as it is reasonable for her son to be expected to leave the UK".
Grounds of appeal and permission to appeal
9. The grounds of appeal argue that the judge failed to give proper consideration to, and treat as a primary consideration, the best interests of the appellant's son. They also argue that the judge erred in his interpretation of section 117B of the 2002 Act by finding the appellant's son was not a qualifying child.
10. Permission to appeal was granted by First-tier Tribunal Judge Shimmin. Permission was granted only in respect of the ground of appeal concerning whether the appellant's son was a qualifying child under section 117B of the 2002 Act. In respect of the other grounds of appeal, which relate to the judge's assessment of the best interests of the appellant's son, the judge stated that the arguments "reveal no arguable error of law".
11. Before me, Mr Singer argued that the grant of permission does not exclude the other grounds of appeal. When I put it to him that the grant expressly limited permission to a single ground, Mr Singer argued that this is an appeal involving a child who has been in the UK for a substantial period of time and it was in the interest of justice that all grounds were argued. He also submitted that there was no explicit exclusion of the other grounds. After hearing submissions on this point from Mr Walker - who did not make any objection to Mr Singer advancing arguments in respect of the other grounds of appeal - I advised the parties that notwithstanding the clear and express limitation in the grant of permission, I would consider all grounds of appeal.
Consideration
12. Section 117D(1) defines a qualifying child as follows:
"qualifying child" means a person who is under the age of 18 and who -
(a) is a British citizen, or,
(b) has lived in the United Kingdom for a continuous period of seven years or more
13. The appellant's son has been in the UK continuously since January 2007 and therefore falls squarely within this definition. The judge was therefore in error to state at paragraph [56] that the appellant is not related to a "qualifying child".
14. Section 117B(6) states that:
(6) 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.
15. Section 117B(6) requires a judge to consider the reasonableness of expecting a qualifying child to leave the UK. In his decision, the judge identified, and dealt at length with, the question of whether it would be reasonable to expect the appellant's son to leave the UK. At paragraph [56], where the statement is made that the appellant's son is not a qualifying child, the judge gave as his reason for so finding that it would be reasonable for him to be expected to leave the UK.
16. When the decision, or indeed paragraph [56], is read as a whole, it becomes apparent that the judge has applied the correct test under Section 117B(6) and has approached the appeal on the basis that the appellant's son is a qualifying child such that the relevant question is the reasonableness of his removal from the UK. The reference to the appellant's son not being a qualifying child is no more than sloppy use of language. This error of law (to the extent it can even be characterised as such) is not material.
17. With regard to the other grounds of appeal, Mr Singer argued that the judge failed to give proper consideration to the appellant's son's best interests and wrongly held against him the adverse conduct of the appellant. I do not consider these arguments to have any merit. The judge dealt at length with the circumstances of the appellant's son, considering his age, length of time in the UK, education, linguistic knowledge, family circumstances and the financial position of his family, Having assessed, and made findings, in relation to all of the material evidence before him about the appellant's son, the judge concluded that notwithstanding that his best interests would be to remain in the UK it would not be unreasonable for him to return to Bangladesh with his mother. Having looked afresh at the evidence before the judge concerning the appellant's son, I am satisfied that he reached a conclusion that was open to him.
18. One of the factors considered by the judge, in assessing the reasonableness of the appellant's son leaving the UK, was the conduct and immigration history of the appellant. Mr Singer argued that in so doing the judge was improperly holding against the child adverse conduct of his parents. However, I do not accept this was the case. As the recent Court of Appeal judgment MA Pakistan [2016] EWCA Civ 705 makes clear, it is not blaming the child to say that the conduct of a parent should weigh in the scales when the general public interest in effective immigration control is under consideration.
Decision
19. The decision of the First-tier Tribunal did not involve the making of a material error of law and shall stand.
20. The appeal is dismissed.
21. No anonymity direction is made.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 19 August 2016