Tribunal decisions

The decision

IAC-BFD-MD-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20549/2015,
IA/20560/2015,
IA/20563/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 January 2017
On 9 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE APPLEYARD

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

h k - (first Respondent)
n k - (second Respondent)
k n k - (third respondent)
(anonymity direction MADE)

Respondents
Representation:

For the Appellant: Ms Z Ahmad, Home Office Presenting Officer.
For the Respondents: Ms N Bustini, Counsel.

DECISION AND REASONS
1. The Appellant in this case is the Secretary of State for the Home Department. However, for the sake of clarity, I shall use the titles by which the parties were known before the First-tier Tribunal, with the Secretary of State referred to as "the Respondent" and H K, N K and K N L referred to as the "first, second and third Appellants".
2. The first Appellant and family members are citizens of Mauritius. The first and second Appellant are husband and wife and the third Appellant is their child who was born on 12 August 2007. They appealed against a decision made on 18 May 2015 refusing their applications for leave to remain on the grounds that removal would be a breach of their human rights under contravention of Section 10 of the Immigration and Asylum Act 1999. Notice and grounds of appeal were submitted arguing that paragraph 276ADE and Appendix FM of the Immigration Rules and/or Article 8 of the European Convention on Human Rights applied. The nub of the grounds pursued was that the third Appellant is a "qualifying" child who has lived in the United Kingdom for over seven years and his best interests lie in remaining in the United Kingdom where he is settled and has an established private life.
3. The Appellants appealed the Respondent's decision and following a hearing at Taylor House Judge of the First-tier Tribunal G. A. Black, in a decision promulgated on 2 September 2016, allowed their appeals.
4. The Respondent sought permission to appeal and in a decision dated 22 December 2016 Judge of the First-tier Tribunal Grant-Hutchison allowed that application for the following reasons:-
"The Respondent seeks permission in time to appeal against a decision of the First-tier Tribunal (Judge G.A. Black) promulgated on 2 September, 2016 whereby it allowed the Appellants' appeals against the Secretary of State's decision to refuse the Appellants leave to remain on the basis of their private and family life both inside and outside the Immigration Rules.
It is submitted that the Judge allowed the appeals with reference to paragraph 276ADE (iv) of the Immigration Rules and S117B (6) of Nationality, Immigration and Asylum Act 2002 on the basis that the third Appellant is a 9 year old child who was born in the UK and it would be unreasonable for him to go and live in Mauritius because of his length of residence and disruption of his education. The Judge has followed the authority of Treebhawon and others (Section 117B (6) [2015] UKUT 00674 (IAC) so as to conclude that s177 B (6) is "a freestanding consideration and effectively a trump card" when it is arguable that the Judge has misdirected herself in not properly applying the case of MA (Pakistan) [2016] EWCA Civ 705 which was before her in that the question of reasonableness involves a balancing exercise of all the factors including the first and second Appellants' poor immigration history and any criminal conduct as well as the child's best interests. Although the Judge has made findings she is entitled to make with regard to the first and second Appellants' criminal conduct there is no finding in relation to the first and second Appellants being in the UK without lawful leave since October 2006."
5. Thus the appeal came before me today.
6. Ms Ahmad relied on the grounds for seeking permission to appeal and argued that the Judge had failed to appreciate the ratio or for the authority of MA (Pakistan) [2016] EWCA Civ 705 with particular reference to the adverse immigration history of the first and second Appellant and that the Judge had failed to appreciate in her assessment all the material factors which fell to be considered. The single reference in her decision to MA (Pakistan) is not sufficient. It was incumbent upon the Judge to address all issues in dispute and there is a failure on her behalf to engage with the totality of evidence in this appeal.
7. In response Ms Bustini acknowledged that MA (Pakistan) was a relevant decision for the Judge to consider. She drew my attention to the reasonableness test referred to at paragraph 46 of MA and in particular the final sentence thereof which states:
"?Moreover, in these cases there must be very strong expectation that the child's best interests fall to be 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."
8. She also drew my attention to the authority of EV (Philippines) & Ors v Secretary of State for the Home Department [2014] EWCA Civ 874. She went on to emphasise that the Judge had dealt with all material matters and had correctly applied the reasonableness test.
9. I accept the submissions of Ms Bustini.
10. It is plain from paragraph 8 of her decision that Judge Black considered all factors including those adverse to the first and second Appellants. She records that,
"?Since that date they have been without lawful leave in the UK?"
11. The Judge then goes on to examine the totality of the factors that fell to be considered before reminding herself that the determinative issue is whether there are "powerful reasons to justify the disruption of removal and child's best interests".
12. Contrary to Ms Ahmad's submissions the Judge has applied the relevant authorities including her approach to the immigration status of the third Appellant's parents (the first and second Appellants). It is plain that in her mind there was the guidance within MA including that to be found at paragraphs 49 and 53.
13. This is a concise decision where the Judge has given adequate reasons for coming to the conclusions that she did. It takes proper account of the totality of the evidence and upon which it was open to the Judge to come to the decision that she did. The Respondent's application is no more than a dispute with those findings which, as I say, are adequately reasoned.
14. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

15. I do not set aside the decision.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 8 February 2017

Deputy Upper Tribunal Judge Appleyard