Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/22201/2015
IA/22210/2015, IA/22214/2015
IA/22218/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28th November 2016
On 18th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE R C CAMPBELL

Between

V R p (First Appellant)
K J p (Second Appellant)
p p (Third Appellant)
v p (Fourth Appellant)
(ANONYMITY DIRECTION made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms A Jones (Counsel)
For the Respondent: Mr T Whitwell (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. The appellants are citizens of India. The first arrived in the United Kingdom in early January 2001 on a visit visa and overstayed. The second, his wife, arrived here on a visit visa in May 2007 and, similarly, remained unlawfully beyond expiry of her visa. The third and fourth appellants are their children, born in the United Kingdom. Their appeals against decisions to refuse their human rights claims were dismissed by First-tier Tribunal Judge Keith ("the judge") in a decision promulgated on 14th June 2016. The judge found that the facts were almost entirely uncontested and concluded that the appellants could not meet the requirements of the Immigration Rules ("the rules"). He considered whether there were circumstances showing that an assessment under Article 8 of the Human Rights Convention, outside the rules, was required and concluded that there were none. At the end of the decision, he found that it was reasonable to expect the third appellant, present in the United Kingdom since birth on 13th February 2009, to leave the United Kingdom with all her family members and went on to make a similar finding in relation to the fourth appellant, a younger child.

2. In grounds in support of an application for permission to appeal, it was contended that the judge erred in failing to expressly take into account section 117A to D of the 2002 Act. The judge was required to consider the public interest considerations set out even if he concluded that the appellants did not qualify under the rules. The judge was required to make an Article 8 assessment and so the particular considerations contained in section 117B, including those in sub-sections (1) and (6) fell to be applied. In failing to expressly take them into account, the judge erred in law.

3. Permission to appeal was granted in October 2016 and directions were then sent to the parties by the Upper Tribunal on 3 November 2016.

4. In a rule 24 response prepared on 17 November 2016, the Secretary of State opposed the appeal. The judge was entitled to conclude that there were no compelling circumstances which required an assessment of the appellants' cases outside the rules. He directed himself appropriately. Moreover, the judge did refer to section 117 of the 2002 Act in paragraphs 13 and 25 of the decision. So far as sub-section (6) is concerned, the fact that the third appellant had lived in the United Kingdom for seven years had to be taken into account in the context of the reasonableness of expecting her to leave the United Kingdom. The judge took into account all the evidence, including a report from a doctor and gave sound reasons for his conclusion that it was reasonable for her to leave.

Submissions on Error of Law

5. Ms Jones said that the judge set out the law and noted that the facts were almost uncontested. It was perhaps unfortunate that the Secretary of State was not represented before the First-tier Tribunal. The judge concluded that there were no compelling circumstances requiring an Article 8 assessment outside the rules. However, section 117A to D of the 2002 Act was not properly considered and there was no express consideration of sub-section (6), which concerned the reasonableness of expecting the third appellant to leave the United Kingdom. It was clear from MA (Pakistan) [2016] EWCA Civ 705 that these factors had to be considered explicitly. Paragraph 33 of the decision, in which the judge appeared to reach a conclusion that it was reasonable for the child to leave, was not sufficient. Paragraph 32 appeared to be concerned with the best interests assessment in relation to the third appellant, but paragraph 33 was clearly different. In all the circumstances, the failure to expressly apply the public interest considerations amounted to a material error of law. Reliance was placed on the written grounds in support of the application.

6. Mr Whitwell said that the appeal was opposed. Paragraph 31 of the decision contained the judge's findings of fact and it was clear that he made an assessment regarding the requirements of Appendix FM and paragraph 276ADE. He concluded that those requirements were not met and that the rules assessment was sufficient. The grounds in support of the application appeared not to challenge that finding in which case the apparent failure to consider section 117B of the 2002 Act was no failure at all. In any event, for the avoidance of doubt, the judge made a finding that it was reasonable for the third appellant to leave, with her family members.

7. Looking at section 117A to D in entirety, save for the considerations set out in sub-paragraph (6), all the other factors appeared to show the strength of the Secretary of State's case. Important guidance in this context was given by the Court of Appeal in Rhuppiah [2016] EWCA Civ 803. There was a precariousness regarding the family life ties.

8. Nothing relevant was omitted from the judge's analysis and the assessment of the best interests of the third appellant was properly reasoned. There was no material error of law. If the failure to expressly refer to section 117B(6) did amount to an error, it was plainly not material.

9. In a brief reply, Ms Jones said that the legislation set out public interest considerations which were required to be considered in all cases. The judge had not applied the relevant factors.

Conclusion on Error of Law

10. The judge included a careful summary of the evidence in the decision and made a careful note of the closing submissions made on behalf of the appellants. In so doing, he expressly noted in paragraph 24 his acceptance of the submission that the effect of section 117B(6) of the 2002 Act is that if it were not reasonable to expect the third and fourth appellants to leave the United Kingdom then the public interest did not require the removal of their parents. He referred to the Upper Tribunal decision in PD and Others (Article 8: conjoined family claims) Sri Lanka [2016] UKUT 108 (IAC) (17 March 2016). Since then, important guidance has been given in MA (Pakistan) [2016] EWCA Civ 705 and several other cases, including Rhuppiah [2016] EWCA Civ 803. He referred to section 117A of the 2002 Act in the following paragraph and stated that he had considered the considerations set out there.

11. Shortly before that, in paragraph 21, the judge referred to SS (Congo) & Ors [2015] EWCA Civ 387, in directing himself that in a case where a person cannot meet the requirements of the rules, it is necessary to consider whether there are compelling circumstances requiring an assessment of that person's case outside the rules, in relation to private or family life ties.

12. It is clear from paragraphs 31 and 32 of the decision that the judge found that there were no such compelling circumstances and that, in effect, the assessment of the family's circumstances under the rules provided the answer in the appeal. As Edis J held in Sunnassee [2015] EWHC 1604 (Admin) (12 June 2015), where the rules provide an answer in this way, it is sufficient to say so. In the present appeal, however, the judge did not simply stop at the rules assessment. He went on to make an alternative assessment in paragraph 33 of the decision that if an assessment were required outside the rules, the balance to be struck between the competing interests fell in the Secretary of State's favour. The salient finding in this context was his conclusion that it was reasonable for the third appellant, and her younger sibling, to leave the United Kingdom with their parents and for the family to return to India. In reaching this conclusion, it is clear from the decision that the judge also had in mind as a material factor of some weight the very poor immigration histories of the first and second appellants and the absence, in the light of the report from Dr Halari (a psychologist), of special circumstances affecting the children of the family. So far as the third appellant was concerned, there would inevitably be disruption to her education and friendship groups following the family's removal to India, but nothing graver. These findings clearly relate, particularly in paragraph 32, to the assessment the judge made of the best interests of the children.

13. It is apparent, therefore, that the decision contains self-directions in relation to the law, including section 117A to D of the 2002 Act, a best interests assessment of the children, an assessment under the rules and a conclusion, obviously made in relation to section 117B(6) of the 2002 Act, that it was reasonable to expect the children to leave the United Kingdom. I observe that in relation to this last finding, in giving weight to the poor immigration histories of the parents (paragraph 31) the judge has acted entirely consistently with guidance given in MA (Pakistan). In a deportation case, NA (Pakistan), Jackson LJ considered whether the law requires the relevant matters in this complicated field of law to be considered in any particular order. He concluded that the law does not require this, although it will usually be sensible to begin with the rules. Overall, the decision in the present appeal is cogently reasoned and there is nothing to show that the judge left out any relevant matter. As the Upper Tribunal held in Dube [2015] UKUT 90, it is substance rather than form that matters and the decision shows that the judge has, in fact, considered the public interest considerations contained in section 117A to D in substance. He had clearly in mind the extent of the ties established by the appellants in the United Kingdom, in relation to private life and family life and the precariousness of the position of the first and second appellants, who have been overstayers for a considerable period of time. He took into account all the evidence before him regarding the parental relationships and drew on his findings of fact in resolving, at paragraph 33 of the decision, the question arising in the light of section 117B(6)(b) of the 2002 Act.

14. My primary finding is that the absence of any express mention of section 117A to D of the 2002 Act in the concluding paragraphs does not amount to an error of law, in the light of the findings and reasoning earlier in the decision. The substantive conclusions reached were plainly open to the judge, including the conclusion regarding the reasonableness of expecting the third appellant to leave with her sibling and her parents. I do not accept the submission that paragraph 33 of the decision, which contains this conclusion, is insufficient. That paragraph has to be read with the rest of the decision and if it is, the overall reasoning is plainly coherent. Even if more were required, by way of the express reintroduction of the public interest considerations towards the end of the decision, any error would not be material.

15. For these reasons, I conclude that the grounds of appeal have not been made out and the decision of the First-tier Tribunal shall stand.

Decision

The decision of the First-tier Tribunal shall stand.

Signed Date

Deputy Upper Tribunal Judge R C Campbell

ANONYMITY

The First-tier Tribunal Judge made an anonymity direction, having considered the position of the third and fourth appellants as young children. There has been no application to vary or discharge that direction and it shall continue in force until varied or discharged by a Tribunal or court.

Signed Date

Deputy Upper Tribunal Judge R C Campbell