Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22283/2015, IA/22289/2015
IA/22292/2015, IA/22294/2015

THE IMMIGRATION ACTS

Heard in Birmingham
Determination Promulgated
On Tuesday 21 February 2017
On Monday 06 March 2017

Before

UPPER TRIBUNAL JUDGE SMITH

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR B S
MRS P K
MASTER J S T
MASTER M S
Respondents

Representation:
For the Appellant: Mrs Aboni, Senior Home Office Presenting Officer
For the Respondent: Mr Muman, Counsel, instructed by SKB Law solicitors

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was not granted by the First-tier Tribunal. However, two of the Respondents are minor children. It is therefore appropriate to make an order. Unless and until a tribunal or court directs otherwise, the Respondents are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the Appellant and to the Respondents. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION AND REASONS

Background

1. This is an appeal by the Secretary of State. For ease of reference, I refer below to the parties as they were in the First-Tier Tribunal albeit that the Secretary of State is technically the Appellant in this particular appeal. The Secretary of State appeals against the decision of First-tier Tribunal Judge Butler promulgated on 11 August 2016 (“the Decision”) allowing the Appellants’ appeal against the Respondent’s decision dated 26 May 2015 refusing their human rights claims.

2. The Appellants are a family from India consisting of father (First Appellant), mother (Second Appellant) and two minor children (Third and Fourth Appellants). The children were born on 1 February 2012 and 16 December 2006 respectively and are now therefore aged five and ten years respectively. Both were born in the UK. Unsurprisingly, it is their situation which lies at the heart of these appeals.

3. Having had regard to the best interests of the children, the Judge found that it would not be reasonable to expect them to return to India. He therefore held that the Third and Fourth Appellants met paragraph 276ADE(iv) of the Immigration Rules and that, applying section 117B(6) Nationality, Immigration and Asylum Act 2002 (“section 117B”), the decision to remove the family to India was disproportionate. He therefore allowed the appeals under and outside the Immigration Rules.

4. The Respondent challenges the finding that it would be unreasonable to expect the children to return to India on a number of bases. First, she says that the reasoning is insufficient. Second, she says that the Judge has relied on an irrelevant consideration and appears to have assumed that there is a positive requirement for the State (in this case India) to provide accommodation. Third, she says that the finding is made without consideration of the wider evidence in this case. Also in this context, she says that the Judge has failed to have regard to the public interest, particularly in relation to the parents’ unlawful immigration status when concluding that it is unreasonable for the children to return to India.

5. Permission was granted by First-tier Tribunal Judge Martins on 25 November 2016 on the basis that the flaws asserted are evident on the face of the Decision. The appeals come before me to decide whether the Decision contains an error of law and if so to either re-make the decision or remit the appeal to the First-tier Tribunal for redetermination.

Relevant legal provisions

6. The focus of the appeals is the position of the Fourth Appellant and whether he can meet the Rules and/or whether his removal would be disproportionate applying Article 8 outside the Rules.

7. In relation to his private life, paragraph 276ADE(1)(iv) provides as follows:-

“Requirements to be met by an applicant for leave to remain on the grounds of private life
276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
……
Is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK;…

8. In relation to the position of the First and Second Appellants, the provisions of paragraph EX.1. which are required to be satisfied are:-

“(a)(i) the applicant has a genuine and subsisting parental relationship with a child who-
(aa) is under the age of 18 years …
(bb) is in the UK;
(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years preceding the date of application; and
(ii) it would not be reasonable to expect the child to leave the UK….

9. When considering the “public interest question”, section 117B(6) Nationality, Immigration and Asylum Act provides that:-

“In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—
(a)the person has a genuine and subsisting parental relationship with a qualifying child, and
(b)it would not be reasonable to expect the child to leave the United Kingdom.”

10. There is no dispute that the Fourth Appellant is a child who has lived in the UK for more than seven years. He was born here and is now aged ten years. The focus of the Decision allowing the appeals is that it is unreasonable to expect him (and his younger sibling) to return to India with their parents.

Submissions

11. Mrs Aboni relied on the Respondent’s grounds which I have set out at [4] above. The main thrust of her oral submissions was that the Judge erred by failing to take into account the wider public interest when analysing the reasonableness of return and/or failed to provide adequate reasons for finding that return would be unreasonable. She relied on the Court of Appeal’s judgment in MA (Pakistan) [2016] EWCA Civ 705 (“MA (Pakistan)”). Although she accepted that the child’s best interests are a primary consideration, she submitted that they were not the only consideration and that the Judge had fallen into error in treating them as such.

12. Mr Muman recognised that the Appellants’ appeals turn on the position of the Fourth Appellant. He noted that the Respondent was unrepresented before the First-tier Tribunal and submitted that this is a reasons challenge based on submissions which the Respondent might have made at the relevant time had she been represented. He directed my attention to the findings at [25] to [33] of the Decision. In stark contrast to Mrs Aboni’s submissions, Mr Muman submitted that the question of reasonableness, at least in this case, turns on the Fourth Appellant’s best interests. He submitted that ample reasons were given for the finding that it would not be reasonable to expect the Fourth Appellant to return to India. He pointed out that the Judge had taken into account the wider public interest considerations at [37] of the Decision. In any event, the parents’ immigration history should not be held against the child.

13. In reply, I invited Mrs Aboni to deal with paragraph [37] of the Decision and why that was not a sufficient recognition of the wider public interest. She submitted that inadequate reasons were given to explain why the Appellants should succeed taking into account that wider public interest when considering the reasonableness of return. She also submitted that the Judge had failed to give adequate consideration to the position on return when judging reasonableness.

Discussion

14. I deal first with the short point taken in the Respondent’s grounds relating to the finding at [28] of the Decision (set out below) which, it is said, is impermissible because it appears to require a State to provide accommodation and for return to be unreasonable unless that is so. That is not my reading of the Judge’s reasoning. The point made at [28] is that the Appellants have no family support network in India. The First and Second Appellants have not lived in India since 2000 and 2005 respectively. The Second Appellants (elderly) parents live in the UK. The First Appellant’s parents are deceased. Accordingly, the question for the Judge is what circumstances the Appellants would face in establishing themselves back in India. Indeed, Mrs Aboni submitted that this was relevant but that the Judge had failed to consider that position adequately. The Judge was there considering the situation which the Appellants would face where they have no home to return to and where they might not have support in finding somewhere to live due to the lack of a family support network. That was clearly a relevant consideration.

15. Turning then to the grounds relating to the reasonableness of return of, in particular, the Fourth Appellant, more generally, the Judge’s starting point was, quite properly, the best interests of the children. His findings in that regard are as follows:-

“[25] It is established law that the interests of the children in immigration appeals is a paramount, but not the only, consideration. Further, it is established law that children cannot be held responsible for the immigration conduct of their parents.
[26] I consider the Secretary of State’s approach to Section 55 to be woefully inadequate in this appeal. Her conclusion is that the children can continue their education in India and this would be a satisfactory outcome since they would have the support of their parents. There is no reference to the relevant guidance and no indication that the wishes of the fourth Appellant have been considered.
[27] Further, there has been no consideration of the facts that the fourth Appellant has never set foot outside the UK and has a limited grasp of Punjabi. He is well-established at school where, although he is not a high achiever, there is clear evidence in his reports that he works very hard and is a popular member of the school.
[28] I further note that there has been no reference to the fact that there is no home for the children to go back to India and no reference to how they could be supported, if at all, by the authorities in finding accommodation.
[29] I also bear in mind the fact that the third Appellant suffers from asthma although I attach little weight to this as it is not a serious condition. The first Appellant’s reference to it becoming worse when it is hot and dusty seems to me rather self-serving given that the climate in the UK is not hot and dusty but in India it is.
[30] I bear in mind that the fourth Appellant has established strong ties in the UK through his education. He would undoubtedly suffer significant disruption to his education if removed to India with his parents. This would constitute a significant obstacle to his integration into India, its culture and education system. Whilst the children may be said to be adaptable, the fourth Appellant is approaching the stage in his education where he will transfer to secondary school. Removing him to India would not be in his best interests and would amount to more than a minor disruption to his life.
[31] The third Appellant is younger than his brother but he too would suffer a significant disruption to his life such that it would be difficult for him to integrate into Indian society and culture. He has commenced his education in the UK and speaks little Punjabi.”

16. Although the Judge does not state expressly what he considers the children’s best interests require, it is evident from the above that he assesses that those favour remaining in the UK. That is based on the degree of, in particular the Fourth Appellant’s, integration in the UK, the stage of his education, the fact that the children speak little Punjabi and the fact that the family has no support network in India to which the parents can turn when seeking to support their children to integrate there. As the Judge observes at [25], those best interests are a primary consideration but not the only consideration.

17. The Judge moves directly from his consideration of what the children’s best interests require to the finding at [32] of the Decision that it would be unreasonable for the children to be removed. The point made by the Respondent is that this indicates that the Judge failed to take into account the factors weighing against the Appellants and in favour of the public interest. I do not accept that submission. That paragraph begins with the words “Having considered all the circumstances in the round…”. The Judge had noted at [2] of the Decision, the parents’ adverse immigration history. He had also noted that history at [25] of the Decision. It is fair to note that the Judge there referred to it in the context that the children could not be held responsible for their parents’ immigration conduct, which might suggest that he had then left that out of account when considering the reasonableness of the children’s return. If that is what he did, then it would amount to a legal error as inconsistent with MA (Pakistan) (see in particular [54] of that judgment). The resolution of what is in the children’s best interests is not determinative of whether it is reasonable to expect them to return and that latter question should also import a consideration of the wider public interest. However, on balance, I am satisfied that the Judge only left that out of account when dealing with the best interests and that does not reflect the exercise which he was carrying out at [32] of the Decision.

18. Even if I am wrong about that, the error is not material. That is because of the consideration of the appeals outside the Rules which involves a very similar exercise. The Judge’s findings in that regard are as follows:-

“[35] If I am wrong in this conclusion, I would not find it proportionate to remove the Appellants. Bearing in mind the public interest considerations at Section 117B of the Nationality, Immigration and Asylum Act 2002, I bear in mind that Section 117B(6) does not require a person’s removal where he has a genuine and subsisting parental relationship with the qualifying child and it would not be reasonable to expect the child to leave the UK. The qualifying child means a person under the age of 18 who is either a British citizen or has lived in the UK for a continuous period of seven years or more. Following my reasoning above, I do not consider it would be reasonable to expect the older child in this appeal to leave the UK.
[36] I also bear in mind the guidance of the Upper Tribunal in Azimi-Moayed where, inter alia, the most important formative years of a child were those between the ages of 4 and 11 and it should be generally accepted that seven years’ residence in the UK for a child would render it disproportionate to remove him.
[37] Outside the Rules, therefore, whilst the public interest considerations in Section 117B would stand against the Appellants, these would be outweighed by the best interests of the children and the Fourth Appellant in particular.”

19. If the Judge’s assessment outside the Rules were confined to [35] of the Decision, that might constitute an error of law if the Respondent’s interpretation of [32] of the Decision were correct and the Judge failed to take into account there the wider public interest. However, the Judge did not stop there. He went on to note the significance of seven years’ residence for a child and particularly one of the age of the Fourth Appellant. He noted that generally that period of residence would render it disproportionate to remove. That resonates with what is said at [49] of the judgment in MA (Pakistan):-

“… the fact that the child has been in the UK for seven years would need to be given significant weight in the proportionality exercise for two related reasons: first, because of its relevance to determining the nature and strength of the child’s best interests; and second, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary.”

20. Having therefore established the appropriate benchmark in favour of the Fourth Appellant, the Judge went on at [37] of the Decision to apply the remainder of section 117B. Although that paragraph is short and does not spell out in terms what the public interest requires, it is abundantly clear from the Judge’s reference to those considerations weighing against the Appellants that he is there referring to the parents’ adverse immigration history, a history which is recounted at [2] and [3] of the Decision. The Judge was also aware that the First Appellant did not speak much English as he refers to his evidence being given via an interpreter ([12]). Furthermore, as is indicated in MA (Pakistan), strong reasons are required to outweigh the child’s interests. That is the basis on which the Judge found for the Appellants at [37].

21. For the above reasons, I am satisfied that there is no material error of law in the Decision in relation to the approach applied. The conclusion which the Judge reaches might not be that which I would have reached, particularly since there was not a great deal of evidence about the position of the children. However, I am satisfied that the finding that it would not be reasonable for, in particular, the Fourth Appellant to return to India was open to the Judge on the evidence. Although the Judge’s reasoning in relation to what the public interest requires is short, I am satisfied for the reasons given above that the reasoning adequately discloses that the Judge took the relevant factors into account.

22. For those reasons, I am satisfied that the Decision does not involve a material error of law.

DECISION

The First-tier Tribunal Decision did not involve the making of an error on a point of law. I therefore maintain the Decision of First-tier Tribunal Judge Butler promulgated on 11 August 2016.

Signed Dated: 3 March 2017

Upper Tribunal Judge Smith