Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number IA/20500/2015
IA/20508/2015, IA/20516/2015
IA/20529/2015, IA/20559/2015
IA/20574/2015

THE IMMIGRATION ACTS

Heard at Field House Decision and Reasons Promulgated
On 14th November 2016 On 20th December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE PARKES

Between

A A G
F A B G
A Y G
S-D G
F G
V I O
(ANONYMITY DIRECTION MADE)
Appellants
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr O Osifeso (Legal Representative, Lannex Immigration and Legal Advice Services)
For the Respondent: Ms J Isherwood (Home Office Presenting Officer)

DETERMINATION AND REASONS

1. The Appellants sought leave to remain in the UK as a family. Their immigration history is set out in the papers and summarised in the First-tier Tribunal decision and I do not need to repeat that in detail. Both the adult Appellants have been in the UK illegally for many years as have the children and have poor immigration histories. The Third Appellant in the original proceedings is now a British citizen.

2. The appeal was heard by Judge Rhys-Davies at Hatton Cross on the 19th of April 2016. In a decision promulgated on the 26th of May 2016 the appeals were allowed. The Judge set out the Appellants' history and circumstances and considered the appeals by reference to the case of PD and Others (Article 8 - conjoined family claims) Sri Lanka [2016] UKUT 108 (IAC).

3. The complaint by the Secretary of State is that the Judge failed to consider properly the public interest in the enforcement of immigration control, the adults had worked illegally and had access to services and allowing the appeal appeared to be a reward for misconduct. The submissions of the parties are set out in the Record of Proceedings.

4. Obviously the Appellants sought to maintain the decision on the basis that the decision made was open to the Judge for the reasons given and that there was no error of law. At the end of the hearing I reserved the decision indicating that if I found an error then the appeal would be remitted for re-hearing.

5. The fact that one child now has British citizenship is a weighty factor but is not determinative of the appeal. A clear error in the decision is the failure by the Judge to have any regard to the many binding cases which mandate that the immigration history is directly relevant to the assessment of the overall circumstances of the family. This has been repeated recently in the case of MA (Pakistan) [2016] EWCA Civ 705 and previously EV (Philippines) [2014] EWCA Civ 874.

6. The requirement of reasonableness was added to paragraph 276ADE (iv) sometime after the rule was introduced and its application then backdated to cover all applications. Children are moved around the globe on a daily basis and manage to handle, with parental support, the changes in culture, climate, lifestyle and language that their parents' decisions impose on them. For the requirement of reasonableness to have any effect it must mean that a child has established more than the life that would be expected of a child of that age. If being immersed in the local schools and culture were sufficient then pretty much every child would succeed and the requirement would add nothing. Whilst it might not be necessary to show something compelling, SS (Congo), something more is needed and it is not clear from the decision what it was that the Judge had in mind in this regard.

7. It is not clear why the Judge appears to have attached no significance to the decision of the parents to live illegally in the UK for many years and to obtain services to which they had no right while working unlawfully. It could be added that if the family wished to return to Nigeria voluntarily the children, including the British citizen, would have no mechanism to prevent their parents from making what would be a lawful decision and clearly in their province. As a decision it would hardly raise an question mark.

8. The Judge appears to have regarded the children's position as sufficient to make removal unreasonable and to be determinative of the appeals. The decision does not discuss the adults decidedly poor immigration history in context or the fact that the entire family were in the UK illegally for many years. Given the observations by the Court of Appeal regarding the relevance of the overall immigration history, the need for circumstances that are more demanding than those a family might ordinarily have, the clear public interest in the maintenance of immigration control and the ability of the family, arguably, to relocate successfully to Nigeria, the failure of the Judge to discuss the case in those terms was a material error.

9. In the circumstances I am satisfied that, given the findings that will have to be made, it is appropriate to remit the hearing to the First-tier Tribunal for re-hearing on all matters. As the case will be considered on the facts as they stand at the renewed hearing the Appellants must submit any new evidence not previously before the First-tier Tribunal in accordance with directions previously issued.

10. I note that the Appellants have an address in Kent. Although the appeals were heard at Hatton Cross I note that Taylor House would be a more convenient location for the Appellants and their representatives to attend. In those circumstances the case is remitted to Taylor House for re-hearing.

CONCLUSIONS

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

I set aside the decision.

The appeal is remitted to the First-tier Tribunal for re-hearing, not before Judge Rhys-Davies.

Anonymity

The First-tier Tribunal made make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.)

Fee Award

In remitting the appeal to the First-tier Tribunal for rehearing I make no fee award which remains an issues for the First-tier Tribunal Judge who considers the case afresh.

Signed:

Deputy Judge of the Upper Tribunal (IAC)

Dated: 6th November 2016