Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/21684/2015
IA/21681/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 December 2016
On 3 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

ROSITA [S] (first appellant)
[C P] (second appellant)
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mr Newoucha, a Solicitor
For the Respondent: Ms Z Ahmad, a Home Office Presenting Officer

DECISION AND REASONS

Introduction and background

1. The appellants are Brazilian nationals. Rosita [S] (the first appellant) was born on 28 January 1963. Her daughter, [C P] (the second appellant) was born on 5 February 2004.

2. The appellants have a complicated immigration history. It seems that:

The first appellant entered the UK in 2003 on a visit visa.

Her daughter (the second appellant) was therefore born in the UK the following year.

The first appellant returned to Brazil later that year.

The first appellant returned to the UK with the second appellant in 2006.

On 28 July 2008 the first appellant returned to the UK with the second appellant again, I understand, on a visit visa. That visit visa subsequently expired and the first appellant illegally overstayed the currency of her leave.

3. The application giving rise to these appeal proceedings began on 18 March 2015 when the appellants applied for leave to remain on the basis that they have established a private or family life in the UK. In her response, dated 21st May 2016, the respondent pointed out that the requirements of the Immigration Rules appeared not to be met but accepted the second appellant’s relationship to her mother. However, the respondent pointed out that both appellants would be returning to Brazil as a family unit, a country to which they have a close connection and in the first appellant’s case, had spent the majority of her life. It was not considered unreasonable to expect them to return from the UK to Brazil having regard to the need to uphold the integrity of the Immigration Rules. No evidence of any special education or medical needs had been served and the appellants were believed to have relatives in Brazil. Overall, the respondent did not accept that the decision to refuse further leave to remain was disproportionate. The respondent reminded the appellants of their liability to removal from the UK but they were also advised of their appeal rights.

4. On 8 June 2015 the appellants appealed against the decision of the respondent. The appeal, which was brought under Section 82 of the Nationality, Immigration and Asylum Act 2002, was supported by grounds of appeal. Those grounds state that the decision was incompatible with the appellant’s human rights in that the respondent had failed to take into account the second appellant’s father. He was an Iraqi national who “cannot be removed” whereas the second appellant was Brazilian. As the second appellant would have lived in the UK for seven years by August 2015, according to her grounds, she would then be qualified for consideration for a grant of leave under paragraph 276ADE of the Immigration Rules.

The Appeal Before the First-tier Tribunal (FtT)

5. The appeal to the FtT, which was accompanied by the appropriate fee, resulted in a notice for a hearing in the FtT on 11 June 2016. Judge of the First-tier Tribunal Woolley (the Immigration Judge) reserved his decision, which was promulgated on 15 July 2016. The decision is lengthy. It sets out the material law insofar as Article 8 and its interrelationship with the Immigration Rules were concerned. He concluded that the second appellant had considerable connections with Brazil and, as she was not a British citizen, it was desirable that she be brought up in a “Brazilian milieu” with her mother. She would be able to speak Portuguese every day and would be brought up a Brazilian. Balancing all matters he found it reasonable to expect her to leave the UK. The Immigration Judge was not satisfied that the first appellant fell within the requirements for a grant of leave to remain in the UK under Section 117B(6) of the 2002 Act. As the first appellant was an illegal overstayer, the Immigration Judge took account of her poor immigration history. Taking all things into consideration his conclusion under Article 8 was that the removal was a proportionate one and interference with their protected human rights was necessary.

The Appeal to the Upper Tribunal

6. By a notice of appeal dated 3 August 2016, the appellants sought to appeal to the Upper Tribunal (the UT) on the basis that the judge had misrecorded aspects of the evidence and this may taint his overall conclusions. Judge of the First-tier Tribunal Zucker agreed with this, pointing out that he did not find all the notes “decipherable”. It was at least arguable that his misunderstanding or misrecording of some of the evidence may render his decision wrong.

7. A hearing was set before me on 14 December 2016. Both parties were represented at that hearing. At the outset the respondent accepted that the decision could not be sustained. Initially, the respondent’s representative, Ms Ahmad, considered the case ought to be remitted to the FtT but having heard submissions from Mr Newoucha, the appellants’ solicitor, I concluded that the appropriate course was to hear argument and make fresh findings where necessary. It was essentially common ground between the parties that there were no substantial disputes of fact in this case and whilst the Immigration Judge’s findings had been criticised, it was the correct analysis of those facts that was of key importance. In the circumstances, I acceded to Mr Newoucha’s request that I proceed with the matter, find an error of law by consent and determine the matter afresh having heard appropriate legal argument from the parties.

8. Mr Newoucha submitted that the family was not a single unit because the parents were separated. The second appellant’s father was an Iraqi who had been in the UK for seventeen years. He lived close to the child’s school and although he did not have any right to be in the UK, there did not appear to be any immediate prospect of his removal. The second appellant had been back to Brazil for one and a half years ending in 2008 so she had been in the UK now for approximately eight years. I was referred to paragraph 12 of the FtT’s decision where it points out that the appellant had first come to the UK in 2003. She had of course been born in the UK and but for the period of the break in her residence would have qualified for citizenship. She spoke English all the time at school and had limited Portuguese. It is for the respondent to show that the reasons for her application are justified. There was no justification for expecting a child such as the appellant to relocate. Mr Newoucha pointed out that Section 117B(6) of the 2002 Act provided that the public interest does not require a person’s removal where that person has a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect that child to leave the United Kingdom. A “qualifying child” is defined so as to include a person who is under the age of 18 and who has lived in the UK for a continuous period of seven years or more. It was submitted that the second appellant fell within that category. It was submitted that the Immigration Judge ought to have concluded that the appellant qualified under the Immigration Rules, alternatively, the presence of her father in the UK was sufficient in terms of relationship to require the appellant to remain here.

9. It was submitted by Ms Ahmad that paragraphs 17-18 set out the background including the fact that there was a functioning educational system in Brazil. The reason she had conceded the error of law was that the suggestion appeared to be made by the Immigration Judge that the second appellant had “struggled with English” which was not the case. The second appellant, if anything, struggled with Portuguese. The second appellant, and indeed the first appellant, both spoke fluent English and were integrated into UK society. I was referred to the case of MA (Pakistan) [2016] EWCA Civ 705 and paragraph 45 thereof. It was suggested that “reasonableness” involved considering a number of factors including the immigration history, whether the appellant is financially independent, the linguistic abilities of the person facing removal and the immigration status of any other parties (in this case the father). I was referred to the case of Rajendrah [2016] UKUT 00138, referred to at page 15 of the decision of the FtT. It was suggested that Rajendrah was authority for the proposition that where the mother was here illegally, this was a matter of importance when judging the continuous period of residence. I was also referred to a case called Rhuppiah [2016] EWCA Civ 803 where the court considered the different factors that applied. Linguistic abilities and financial independence were key ones.

10. Mr Newoucha responded to say that the ties between the appellants and the country of Brazil were weak in this case. He reminded me of the history and suggested that the first appellant’s contact with Brazil was limited to her stepmother, although it was accepted there were other relatives.

11. At the end of the hearing I reserved my decision which I will later give after summarising my reasons.

Discussion

12. Having been referred to the recent case of MA (Pakistan), and in particular to paragraph 45 thereof, it is clear that the correct the approach to the question of “reasonableness” should be to look at the conduct of the applicant and any other matters relevant to the public interest. Where the “seven-year Rule” is satisfied under Section 117B (6) it is a factor of some weight leaning in favour of leave to remain being granted and against the public interest in favour of removal. It was of key importance to note whether a relationship had been embarked on with knowledge as to the immigration status of the parties. However, the need for immigration control was not such as to require the respondent to seriously disrupt the life of a young child settled in the UK, unless this was done as part of a proper proportionality assessment. In the case of MA (Pakistan), cited with approval by Lord Justice Christopher Clarke (at paragraph 48 in the case of EV (Philippines)):

“In determining whether or not, in a case such as the present, the need for immigration control outweighs the best interests of the children, it is necessary to determine the relative strength of the factors which make it in their best interests to remain here; and also to take account of any factors that point the other way”.

13. Ms Ahmad identified four factors which are relevant to the disposal of this case:

(1) Immigration History
The first appellant is an illegal over stayer. The second appellant’s father has no right to live in the UK, having apparently advanced an unsuccessful asylum claim. There is no indication that ultimately his application is likely to succeed.

The first appellant seems to have passed freely between Brazil and the UK without any regard to immigration controls. It is notable that she took the second appellant with her on her visit to Brazil in 2004 to 2006.

(2) Financial Independence
Neither of the appellants are financially independent and the second appellant’s father has been working illegally in the UK. Although I do not have detailed financial information, it seems that the first appellant’s work has been transitory in nature, working, for example, for a clothes shop in Brazil. It was of course a requirement of her visit visa that she did not come to the UK for the purposes of employment.

(3) Linguistic Abilities
The first appellant has spent most of her life in Brazil and is obviously a native speaker of Portuguese. Her daughter, although now fluent in English, also speaks Portuguese. There are no significant obstacles to their safe return to Brazil where the first appellant has a number of family members. Although she has been in the UK on and off since 2003 she has maintained close links with that country.

(4) The Father’s Presence in this Country
It seems that the second appellant’s father has been present in the UK for up to seventeen years but has no status here and there is no evidence that he will ultimately be successful in his desire to remain here. As far as their relationship is concerned, it seems that the first appellant makes most of the decisions as to the welfare of the second appellant and although the second appellant has contact with her father, the relationship between the first appellant and her father is not a strong one. The second appellant’s father is described as a person who has worked cash in hand (i.e. illegally) since coming to the UK. I have no reason to suppose that he will maintain any stronger relationship with the second appellant if both appellants were to be granted indefinite leave to remain in the UK since he might ultimately be removed to Iraq. It is speculative to suggest that the family is going to be reunited as one family unit. This is not, so to speak, “on the cards”.

Conclusions

14. Bringing all these strands together I conclude as follows:

(1) A primary consideration is the welfare of the second appellant. She is settled in the English school system, speaks fluent English and has developed a private life here. However, she does not satisfy the requirements of paragraph 276ADE, which sets out the requirements to establish a private life for the purposes of the Immigration Rules. For a child of under the age of 18 that rule requires the second appellant to show that she has continuously lived in the UK for seven years up to the date of the application for indefinite leave to remain. Hence, she does not satisfy the requirements of the Immigration Rules. As far as the wider commitments of the respondent under Article 8 are concerned, the starting position is, of course, the requirements of the Immigration Rules already alluded to. The second appellant is not within one of the categories set out in Section 117B (6) of the 2002 Act, i.e. she does not have relationship with a qualifying partner and her child being a foreign national, who has not lived here for the required period, is not a qualifying child. Removal would therefore be permitted provided it was in accordance with the wider public interest requiem nests identified.

(2) However, it would be proportionate and reasonable to return both appellants to Brazil having regard to the factors outlined above, including the first appellant’s poor immigration history of the first appellant, the lack of any long term security in the relationship between the second appellant and her father and the fact that those relationships were embarked upon or continued in the UK with knowledge of the appellants’ precarious immigration status are factors which support the public interest in removal.

(3) There will be a minor degree of disruption to the second appellant’s schoolwork caused by her removal to Brazil but given she is returning with her mother to a country with which they have a close cultural assimilation, these are not the overriding consideration in this case. The second appellant’s father does not in practice take day-to-day decisions about her education or her future. These are taken by the first appellant. The degree of disruption entailed by their return to Brazil, albeit that the first appellant has lived in the UK on and off since 2003, will be justified by the need to enforce effective immigration controls. The fact that neither of the appellants has independent means is only a neutral factor in the case but it cannot be ignored that one of the aims of modern immigration law, enshrined in Section 117 of the 2002 Act, is to ensure that only those who are financially able to look after themselves should be allowed to settle in the UK.

Notice of Decision

Having carefully reviewed the decision of the FtT, I have concluded that the decision needs to be set aside for containing an error of law. However, I have re-made the decision which is to dismiss the appellants’ appeal against the respondent’s decision to refuse indefinite leave to remain. The appeal is dismissed under both the Immigration Rules and the ECHR.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Hanbury

I have dismissed the appeal and therefore there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Hanbury