Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21184/2015
IA/21187/2015
IA/21190/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 April 2017
On 20 April 2017

Before
Deputy Upper Tribunal Judge Mailer

Between
Mrs Lakwinder Kaur
Miss Navjit Kaur
Mr Robinderjit Singh
no anonymity directions made
Appellants
and

secretary of state for the home department
Respondent

Representation
For the Appellant: Mr S Shepherd, NC Brothers & Co Solicitors
For the Respondent: Ms A Fijiwala, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellants are nationals of India, born respectively on 6 April 1965, 10 April 1993 and 1 November 1998. The second and third appellants are the first appellant’s children. They appeal with permission against the decision of First-tier Tribunal Judge Moxon who, in a decision promulgated on 12 September 2016, dismissed their appeals against the decision of the respondent refusing their applications on 26 May 2015 for leave to remain in the UK.
2. I shall refer to the first appellant as 'the appellant'.
The decision of the First-tier Tribunal
3. First-tier Tribunal Judge Moxon noted at [7] that it was not disputed that the third appellant has lived continuously in the UK for over seven years. It was contended that he met the requirements under paragraph 276ADE(1)(iv) of the Immigration Rules.
4. The appellant and her daughter relied on paragraph 276ADE(1)(vi). Alternatively, the appellants contended that their removal would breach their Article 8 rights to family and private life outside the Rules - [11].
5. Judge Moxon noted that the appellants entered the UK on 24 November 2006 as visitors with the appellant’s husband, Mr Paramjit Singh. He is the father of the two children. They overstayed upon expiry of that visa on 3 May 2007.
6. The appellant’s husband made various applications for leave to remain with the appellants as his dependants.. The last application, submitted on 13 December 2013, was refused on 14 January 2014. The appellant’s husband was served an IS.151A notice for removal on 19 January 2014 - [17].
7. Judge Moxon noted that appellant then made an application for leave to remain on 25 March 2014 with her children as her dependants, which was refused on 2 June 2014. The respondent had not been told that the relationship had ended or that the appellant had been a victim of domestic violence [18].
8. It had not been argued when submitting written submissions in a judicial review, that the appellant was no longer in a relationship with her husband or that she had been subjected to violence at his hands [18]. In the refusal letter it was asserted that the appellant cannot satisfy the parent route of Appendix FM as she remains in a genuine and subsisting relationship with her husband. Nor did the appellant satisfy the requirements of paragraph 276ADE(1) of the Rules.
9. In the grounds of appeal it was claimed that the appellant’s husband had left the family home and his whereabouts were unknown. There was no reference to domestic violence or of the appellants being scared to return to India on account of fear of their husband and father [20].
10. In her statement dated 22 August 2016, the appellant asserted that her husband had returned to India and had disinherited the appellants. She was pleased about this as he is a violent alcoholic. She had suffered violence for 20 years. He left the family in January 2014 after attempting to force his daughter into a marriage against her will and attacking her. Had they been in India he would have killed her.
11. It was further asserted that the third appellant could not read or write Punjabi or Hindi and would be unable to pursue his studies in India [22].
12. The second appellant stated that she wished to be a research scientist specialising in cancer, and is due to start a placement at Glaxo SmithKline. She is active within her temple. She fears her father if returned to India.
13. The third appellant stated that he is studying a BTec Extended Diploma in Business. The studies are progressing well and he is due to graduate in 2017. (I was informed at the hearing that he is due to complete the course in June or July 2017). He understands Punjabi and Hindi but cannot read in the language. His education would then be put back years if he were returned to India. This would prevent him obtaining work in India. He enjoys friendships and sporting activities in the UK. He also fears his father [25].
14. In a letter before the Tribunal from the Vice-President of the Gurdwara, Southall, it was stated that they have supported the family since April 2015. The appellant and her children undertake voluntary work [26-27].
15. Judge Moxon considered various letters from the second and third appellants' colleges. The third appellant is due to complete his BTec on 30 June 2017. His academic achievements and motivation “are spoken of in high regard” [29].
16. He had regard to the appellants' evidence. Each claimed that the appellant’s husband was violent. There was reference to her receiving a scar to her left upper arm, a scar on her cheek and an incident prior to her husband's leaving the family home in January 2014. He set out in some detail the incidents, the first of which occurred in India 11 years ago when she was attacked with a dagger [33].
17. He referred to the various claims of assault including an incident in January 2014 between her husband and her daughter, the second appellant. The Judge had regard to a letter submitted from Dr Pal which stated that the second appellant had been the victim of violence since January 2014 and not simply on one occasion in January 2014. There was no date indicating when the second appellant disclosed this information. She claimed that she had not read the letter properly when it was given to her. The Judge 'suggested' that it read as though she has only recently told her lecturer about this [43].
18. The third appellant stated that he wishes to be a businessman. He does not believe he can fulfil these ambitions in India as he would have no contacts or finances. Whilst in the UK he has friends with whom he would enter business and potential access to bank loans. He is only half way through a two year Btec - [47].
19. The second appellant has now completed her HNC and is due to commence her HND. She wishes to study at university. She has lived in the UK for ten years, has friends and ambitions and cannot imagine living in India. She can speak, read and write Punjabi - [48].
20. Judge Moxon referred the appellant to the reasons for refusal letter indicating that she was still in a genuine and subsisting relationship with her husband. There was no reference to domestic violence in the grounds for judicial review. When he asked her why this was the case, given that her evidence was that her husband had left her two months prior to her making the substantive application, she replied that she had told her solicitor everything but did not know what they had mentioned. In further questioning she stated that she had been assisted with her application by people from the temple [49].
21. In his findings of fact, the Judge rejected the account provided by the appellants. He did not accept that they had been the victims of domestic violence [50]. There was no assertion in the application form that she and her husband had separated. Although he had not had sight of the application itself submitted in March 2014, he had regard to the refusal letters which had been drafted upon the premise that she and her husband remained in a genuine and subsisting relationship which is expressly stated in the May 2015 refusal - [51].
22. Nor was there any reference to this in the earlier judicial review application despite the earlier refusal letter having referred to the appellant being in a relationship. No international protection claim was made despite their assertion of fear of death upon return to India. When this was put to the appellant herself, she simply stated that she did not know what had been included [51].
23. The May 2015 refusal letter dismissed her application under Appendix FM on the basis that she did not have sole parental responsibility as she was in a genuine and subsisting relationship [53].
24. The Judge found as a fact at [53], that thereafter the appellant had sought to develop a deception that the relationship has ended and that she cannot return to India due to a fear of violence. Support for this contention is derived from the grounds of appeal. There is a reference to her husband’s whereabouts not being known but no reference to any previous violence or fear of harm upon return to India.
25. He took into account 'the significant inconsistencies' within the evidence of the appellants in relation to the three specific attacks that they sought to outline. Whilst there were some consistency, and '...whilst some discrepancy can be the sign of simple mistake and honesty, the inconsistencies between the accounts were significant and could not be dismissed'. He took into account the age of the children. He did not accept that this constituted a sufficient explanation [54].
26. There was no reference in the appellant's statement to her being cut with a dagger or ring or that she suffered scars. That undermined her credibility as to whether these incidents occurred. Whilst she may have scars, he did not accept that they were caused by her husband [55-56].
27. Nor did he accept the affidavit and letter from Dr Pal to be reliable [58]. Such documents are easily fabricated. It is not dated. The letter did not corroborate the appellants’ account. The alleagtions of violence are since January 2014. It appeared that this disclosure had only recently been made. The letter did not add weight to the appellants’ argument [59]. He did not therefore accept that the appellant or her children had been the victims of violence, nor that they feared further violence [60].
28. Judge Moxon specifically directed himself in accordance with s.55 of the Borders, Citizenship and Immigration Act 2009. He reminded himself of the guidance provided in Zoumbras v SSHD [2013] UKSC 74, that a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent. Whilst the appellant’s son has been complicit in an attempt to mislead as to the behaviour of his father, he found that given his young age he was simply following the instructions of others and did not take this into account when considering his best interests [62].
29. He had regard to the decision a decision from the Upper Tribunal in Azimi-Moayed, as well as paragraph [35] of the judgment of Clarke LJ in EV (Philippines) and others v SSHD [2014] EWCA Civ 874. He also considered several decisions relating to the best interests of the child, set out at paragraphs [65] and [66].
30. He did not accept that the appellant’s son does not read or write Punjabi. He has been attending temple. Given that they are supported by the temple and he undertakes volunteer work for them, he found that it was more likely than not that his involvement has been since he was very young and not only for the past two or three years. He found it likely that he had commenced learning to read and write Punjabi before leaving India aged 7 and that since then he has developed the skills at the temple. In any event he noted that he speaks and understands Punjabi.
31. Whilst the third appellant has friends with whom he wishes to start a business, and whilst bank loans may be more available here, he found that he could seek to satisfy his business ambitions in India.
32. He did not accept that he would not have access to support in India. Although he acknowledged that he was only half way through a two year course, the Judge noted that he commenced that course some time after the application for leave and in fact after its refusal, and therefore commenced that course knowing that he may be unable to complete it [68]. In any event, he is not studying a vocational course which would be a prerequisite to undertaking his chosen profession. He would be able to pursue his business ambitions without the qualification. He was not told that there were no other suitable courses he could study in India. [68]
33. Judge Moxon took into account that the third appellant would be parted from friends and returned to India which he has little recollection of. He could maintain contact with his friends. He could pursue his religious, sporting and business ambitions in India. He is familiar with the language and the culture, having been brought up by Indian parents and having lived there for the first seven years of his life [69].
34. He would be returning to India with his mother and sister. He would be reunited with his father who should have returned to India after being served with removal directions some time ago [70]. Having taken into account these factors when considering his best interests, he also gave significant weight to his length of residence in the UK. It would not however be unreasonable for him to be removed from the UK. [72].
35. He found that after being served with removal directions, the appellant’s husband returned to India and would seek to re-join his family if they were to be granted leave. Alternatively he would remain here without leave. He found nevertheless that the intention of the family is to be reunited and the appellant and her husband remain in a genuine and subsisting relationship.
36. He found that if returned to India they would live with their husband and father. They have family members in India and access to support, accommodation and employment, and educational opportunities. He did not find them to be credible witnesses and did not accept their evidence to the contrary – [74].
37. The second appellant is 23 years old. She lived in India until she was a teenager. She applied to commence an HND after the refusal of her application. There is no compelling evidence that she would be unable to continue her education and career ambitions in India - [75]
38. The three appellants would be removed together and would be reunited with their husband and father and other family members [76]. There would therefore not be very significant obstacles to their integration in India. Nor were there compelling circumstances.
39. The Judge had regard to Article 8 “for completeness.” He set out the provisions of s.117B of the 2002 Act. He found that the appellants’ immigration status has at best been precarious throughout their time in the UK and any private life developed can be given little weight. He noted that this is through no fault of the second or third appellants.
40. The interference contemplated was thus proportionate in the circumstances - [87-89].
The appeal
41. In granting permission to appeal, First-tier Tribunal Judge PJM Hollingworth stated that
- it is arguable that Judge Moxon 'has attached insufficient weight to certain facets of the position of the third appellant in assessing his best interests'. He had noted that he was only half way through a two year course which commenced some time after the application for leave to remain. The third appellant was not studying a vocational course which would be “prerequisite to undertaking his chosen profession.”
- it is arguable that the Judge attached insufficient weight to the “mid way point” reached by the third appellant in his course.
- it is also arguable that the Judge attached insufficient weight to the fact that the third appellant would be parted from his friends and returned to a country of which he has little recollection.
- it is arguable that he attached undue weight to the ability of the third appellant to pursue business ambitions in India “in contra distinction to the completion of the course already begun.”
- it is arguable that he attached insufficient weight to the degree of integration achieved by the third appellant across the social and educational spectrum before concluding that it would not be unreasonable for the third appellant to be removed.
42. Mr Shepherd, who did not represent the appellants before the First-tier Tribunal, submitted that the Judge failed to consider properly the adverse effect on the third appellant, including his best interests, following the interruption of his education. He would have to abandon his current course prior to completion. He has been in the UK for almost 11 years. For the last ten years he has been in the education system. His course is the equivalent of three A levels. It is a vocational course.
43. This means he will be left with GCSE qualifications. Abandoning a vocational course would affect his ability to obtain a job in the future. The progress that he made will be lost. That is a pivotal element in his case. He referred to a letter from West Thames College London at page 13 of the appellants' bundle. The programme involved completing practical projects and assignments based on realistic workplace situations, activities and demands. He is on target to achieve an overall distinction.
44. The third appellant is over 18 years and meets the requirements of paragraph 276ADE(1)(v). He receives support from his mother in a practical and financial sense.
45. He referred to the decision of the Court of Appeal in MA (Pakistan) and Others v SSHD [2016] EWCA Civ 705 at [46-48]. The fact that the appellant was 17 at the time is relevant, as he has developed substantial cultural and other links in the UK. The decision in MA was not considered by the Judge.
46. On behalf of the respondent, Ms Fijiwala submitted that there has been no material error. Indeed, she contended that the decision in MA would make the respondent’s case even stronger.
47. The Judge properly considered the best interests of the third appellant from [61]. That is consistent with the approach which applied the reasonableness test in MA at [47]. She referred to [100-101] in MA. That test does not require a focus on the position of the child alone ignoring the considerations of immigration control. The Court can have regard to the wider public interest including the immigration history of the applicant and his parents. Even in a narrow reasonable test where the focus is on the child alone, it would not follow that leave must be granted whenever the child’s best interests are in favour of remaining.
48. The Judge did not accept that he does not read or write Punjabi. He has given reasons at [67] for that finding. He had regard to the fact that the third appellant was half way through a two year course and had friends in the UK. He was not informed that there would be no suitable courses that he could study in India - [68]
49. He also took into account that he would be returned to India with his mother and sister and would be reunited with his father there. He would be able to maintain contact with friends using modern technology.
50. The Judge had proper regard to the public interest considerations in s.117B of the 2002 Act. The appellant would be able to find the equivalent of a BTec vocational degree in India.
51. In reply, Mr Shepherd submitted that the Judge should have indicated strong reasons for refusing him leave to remain. He repeated his submission that the Judge did not properly analyse the effect on the appellant of the disruption to his course. The fact that he commenced a course after the date of refusal of his application does not count against him. Moreover, the appellant is studying a vocational course. He would be unable to complete his course in India.
Assessment
52. Judge Moxon has given a careful and detailed decision and has set out in full the relevant facts that informed the appeal.
53. In essence, he found that the appellant had given a false and deceitful account relating to domestic violence. He found that she and her husband have remained in a genuine and subsisting relationship. There has been no challenge to those findings.
54. Although the Judge did not have regard to the decision in MA he nevertheless reminded himself of the guidance provided in Zoumbas v SSHD [2013]UKSC 74, that a child must not be blamed for matters for which he or she is not responsible, such as the conduct of the parent. Although finding that the third appellant has been complicit in an attempt to mislead regarding the behaviour of his father, given his young age he was simply following the instructions of others. The Judge did not take this into account when considering his best interests [62].
55. The appellants assert in their grounds of appeal, that in considering s.117B of the 2002 Act the Judge failed to consider MA and in particular the decision of Elias LJ at [48]. The fact that the child has been here for seven years must be given sufficient weight when carrying out the proportionality exercise. The respondent published guidance in August 2015 where it is expressly stated that there need to be ”strong reasons” for refusing leave once the seven years’ residence requirement is satisfied.
56. I have had regard to the Judge’s record of proceedings from which it does not appear that his attention was drawn to the decision in MA. The test in relation to the third appellant was stated to be one of “reasonableness”. He had been in the UK since the age of 7. It was contended that it would not be reasonable for him to return to India.
57. Judge Moxon was however referred to paragraph 276ADE (iv). He noted at paragraph [8] that the third appellant contended that he had satisfied the provisions of that paragraph. He set out that paragraph as well as the provisions of Article 8 at [9-13].
58. The question therefore was whether or not it would be reasonable to expect him to leave the UK. He also had express regard to the provisions of s.55 of the 2009 Act at [61]. He recognised that he was required by the 2009 Act to have regard to the best interests of the third appellant. He referred to Azimi-Moyaed [2013] UKUT 197, a decision of the Upper Tribunal and set out the headnote in full. He was aware that lengthy residence in a country other than the state of origin can lead to the development of social, cultural and educational ties, making it inappropriate to disrupt them in the absence of compelling reasons to the contrary [63].
59. Judge Moxon set out and directed himself at [66] in accordance with MK (Best interests of the child) India [2011] UKUT 00475 at [41], which provides that when it comes to the subject of education in the context of Article 8, the child’s educational development and also the issue of any loss of any educational opportunities, must be considered. Proper regard must be paid to his educational progress and how it is likely to be affected in a broad sense and not just in the short term. That entails having regard to the past and present educational setting but also to the educational setting likely to confront him if returned to his country of origin.
60. He dd not accept that the third appellant was unable to speak and write Punjabi. He took into account the fact that he has friends with whom he wished to start a business and bank loans which might be more readily available in the UK. He nevertheless found that he could satisfy those ambitions within India. The Judge was not told that there were no other suitable courses that he could study in India.
61. In MA, supra, the Court of Appeal concluded, albeit reluctantly, that it was inherent in the reasonableness test in s.117B(vi) that the Court should have regard to the wider public interest considerations and in particular the need for effective immigration control. The wider public interest considerations can only come into play via the concept of reasonableness in s.117B(vi) itself. The construction of s.117B (vi) adopted in MA applies likewise to Rule 276ADE – AM (Pakistan) v SSHD [2017] EWCA Civ 180.
62. The Judge also had regard to the judgment in EV (Philippines), supra. The decision as to what is in the best interests of the children depends on a number of factors including the length of time they have been here, how long they have been in education and what stage their education has reached.
63. The Judge noted that the appellant’s son commenced learning to read and write Punjabi before leaving India at 7. He has since developed those skills at the temple. None of those findings were challenged on appeal.
64. There was no evidence produced as to whether the appellant had discussed with his college whether the BTec could be completed from abroad. Nor was there any evidence produced as to whether other suitable courses that he could study in India were available.
65. He noted that although the appellants’ immigration status has been precarious throughout their time in the UK, this was through no fault of the second or third appellants.
66. In all the circumstances the Judge concluded that it would not be unreasonable for the third appellant to be removed together with his family to India. Nor would his removal constitute a disproportionate interference with family and private life. As noted, he expressly reminded himself of the s.55 considerations in considering proportionality – [88].
67. Although the Judge did not take into account the decision in MA (Pakistan), he nevertheless directed himself appropriately. He has given proper reasons for concluding that the third appellant’s removal to India would not in the circumstances constitute an unreasonable interference with his right to respect for private life. He also gave proper reasons under s.117B(vi) that it would not be unreasonable to expect him to leave the UK.
68. The Judge has in substance considered all the relevant matters relating to the third appellant’s appeal. The findings are sustainable on the evidence produced.
69. I would expect the respondent to consider whether in the interests of justice the third appellant should be given some discretionary leave in order to allow him to complete his course by the end of June 2017, which is the scheduled completion date.

Notice of decision
The decision of the First-tier Tribunal did not involve the making of any material error on a point of law. The decision shall accordingly stand.
No anonymity direction is made.

Signed Date 17 April 2017
Deputy Upper Tribunal Judge C R Mailer