Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/22334/2015
IA/22335/2015
IA/22336/2015
IA/22337/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 December 2016
On 12 January 2017

Before

LORD MATTHEWS, SITTING AS AN UPPER TRIBUNAL JUDGE
DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr Sydney [M]
[M M M]
Mrs [S]
[M B M]
(ANONYMITY oRDER NOT MADE)
Respondents

Representation:
For the Appellant: Mr N Bramble, Home Office Presenting Officer
For the Respondents: Mr S A Canter, Counsel, instructed by 1215 Chambers

DECISION AND REASONS

1. This is an appeal by the Secretary of State, whom we will continue to refer to as the respondent, against a decision of the First-tier Tribunal promulgated on 29 June 2016 allowing appeals against a decision of the respondent made on 29 May 2015 to refuse the applications of the four appellants for leave to remain in the United Kingdom on the basis of their family and/or private life.

2. The first and third appellants are the father and mother of the children, who are twins born on 24 December 2007 and who have lived all their lives in the United Kingdom. In particular they had lived here for at least seven years by the date of decision.

3. The reasons for the refusal were set out in a letter dated 29 May 2015. The judge in the First-tier Tribunal, at which the Secretary of State was not represented, found that the appeals of the first and third appellants succeeded outside of the Immigration Rules but he allowed the appeals of the second and fourth appellants under paragraph 276ADE(1)(iv) of the Rules. In effect the appeals of the first and third appellants piggybacked the success of the appeals of the children.

4. Before us it was argued by Mr Bramble, the Home Office Presenting Officer, that there was an error of law in the determination. The test of reasonableness, it was said, was applied narrowly. There should have been taken into account the children's nationality, their young ages, the cultural awareness relating from their parents and their heritage, their health and their parents' immigration history. It is said that the Tribunal had considered none of these points and in failing to do so had erred in law. The Article 8 finding on the parents' cases rested entirely on the decision in the children's cases and so their appeal should have been refused also.

5. In reply Mr Canter, putting matters in a nutshell, submitted that the various factors set out in the grounds of appeal were in fact considered by the judge and if they were not considered then they were irrelevant. Nationality was implicit, the judge being well aware of it. The children's ages were set out. Their cultural awareness was dealt with at paragraph 63. The judge heard oral evidence about the languages spoken. It was explained to us that in evidence the parents said they spoke English at home because each of them spoke a different Zambian language.

6. The judge noted that the children had paid no visits to Zambia. Mr Chileshe, a relative, had been to Zambia with his child, who was the same age as the twins, and described the difficulties which the children would meet there. They would stick out. Health was not a factor. As far as their parents' immigration history was concerned, that was something the judge was aware of and he dealt with it in particular at paragraphs 58, 66 and 67 of the determination.

7. It was said by Mr Bramble that the judge did not follow the case of PD and Others (Article 8-conjoined family claims) Sri Lanka [2016] UKUT 00108 (IAC). Mr Canter submitted that he did in fact follow PD, which was cited to him and which the judge in fact refers to at paragraph 45 of the submission. Each case had to be be considered on its own facts, and in relation to the issues which were up for determination it was not suggested that the parents themselves could succeed. The only way in which they could succeed would be, as it were, to piggyback, as I have said, the appeals of the children. That is why there was a concentration on the latter.

Discussion

8. The immigration history of the parents was well-known and is referred to by the judge and the only issue therefore was one which had to be addressed through the prism of the children. Once that was done the whole family situation could be considered. The judge, it seemed to us, considered the best interests of the children, he said what he perceived those to be and he set out at paragraph 66 what the Secretary of State's position was, namely that the objective information available demonstrated that Zambia had a functioning education system that most children would be able to enter. Removal of the children would involve a degree of disruption to private life which was considered by the Secretary of State to be proportionate to the legitimate aim of maintaining effective immigration control and was in accordance with the Section 55 duties of the respondent.

9. The judge assessed these matters for himself and indicated in paragraph 67 particularly that he had considered the documentary evidence, the oral evidence and endeavoured to make an overall assessment of the particular circumstances of the children. That is because it was the issue of the children which was at the forefront of matters. He kept in mind, he said, the best interests of the children as a primary consideration but in addition to that he kept in mind throughout the legitimate aim of the Secretary of State in maintaining effective immigration control.

10. This determination could have been better expressed but when it is read as a whole we are satisfied that the Tribunal dealt with the live issues which were before it. It was not necessary to go any further and while another judge might have made a different decision the decision which the First-tier Tribunal reached was one which was open to it and we refuse the Secretary of State's appeal.

11. No anonymity order is sought or made.

LORD MATTHEWS
Sitting as an Upper Tribunal Judge
(Immigration and Asylum Chamber)

Date: 11 January 2017