Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/22490/2015
IA/22494/2015
IA/22497/2015
IA/22502/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision Promulgated
On 9th August 2016
On 15th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

Mmerc
First Appellant
na
Second Appellant
rnc
Third Appellant
rc
Fourth Appellant
(ANONYMITY DIRECTION MADE)

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr T Shah, Solicitor of Taj Solicitors
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND DIRECTIONS

1. Before the Upper Tribunal the Secretary of State becomes the appellant. However, for the avoidance of confusion and to be consistent, I shall continue to refer to the parties as they were before the First-tier Tribunal.
Background
2. On 23rd May 2016 Judge of the First-tier Tribunal Shimmin gave permission to the respondent to appeal against the decision of Judge of the First-tier Tribunal Ennals in which he allowed the appeal on human rights grounds against the decisions of the respondent to refuse leave to remain applying the provisions of Appendix FM and paragraph 276ADE of the Immigration Rules.
3. Permission was granted on the basis that it was arguable that the judge failed to give proper consideration to the appeal under the Immigration Rules and that the first and second appellants had been overstayers for several years so little weight had to be given to their private life claim. It was also considered arguable that the judge's approach to the oldest child's medical needs as a sufferer from autism did not properly consider the cost of her care and treatment in UK and the public interest.
Submissions
4. Mr Bates confirmed that the respondent relied upon the grounds. These contend that the judge made no specific findings in relation to paragraph 276ADE of the Immigration Rules although the appeal appeared to have been allowed on the basis of private life. In that respect the judge had failed to consider that the children were not British citizens and had not been living in the UK for seven years, the parents being significant overstayers. It was also alleged that the judge had failed to give reasons for concluding that the best interests of the oldest child displaced the public interest. This was in circumstances where the judge had noted that there was care for autistic children in Bangladesh, even if not to the same standard as in the United Kingdom. The judge also failed to take into consideration the cost to the public of the child's care as part of the balancing exercise on the basis set out in AE (Algeria) [2014] EWCA Civ 653.
5. Mr Bates emphasised that the judge should have considered that the failure of the appellants to meet the Rules was relevant also bearing in mind the judge's conclusion in paragraph 11 that the first appellant could not seriously have thought that he had been granted leave at any point in time.
6. Mr Bates also sought to identify inconsistencies between the conclusions of the judge and the public interest criteria set out in Section 117B of the 2002 Act. In particular, the judge had found that there were no very significant obstacles to the first and second appellants' integration into Bangladesh (paragraph 17) and that the family would not be without the means to support themselves in that country and there would be no significant interference with family life (paragraphs 18 and 19). He also found that, apart from the third appellant's autism, there would be no circumstances that would lead to a grant of leave outside the Rules. These matters all suggested that the judge should have dismissed the appeal.
7. Mr Bates also contended that the judge was wrong to find that the first appellant's ability to speak English was more than a neutral factor as was made clear by the Court of Appeal in Rhuppiah [2016] EWCA Civ 803.
8. Mr Shah accepted that the decision did not show that the judge had made any reference to relevant case law but argued that the judge's findings were adequately reasoned showing full consideration of the public interest bearing in mind the poor immigration history of the first and second appellants. He further conceded that neither child was in the seven year category which might have brought into operation Section 117B(6) of the 2002 Act on the basis referred to by the Court of Appeal in MA (Pakistan) [2016] EWCA Civ 705. However, he thought that paragraph 23 of the decision showed that the judge had properly considered the third appellant's best interests.
Error on a Point of Law
9. I now give my reasons for concluding that the decision of the judge shows errors on points of law such that it should be set aside and re-made before the First-tier Tribunal.
10. The decision shows that, apart from his consideration of the best interests of the third appellant, the judge reached adverse conclusions about family and private life issues both under the Immigration Rules and outside them. Paragraph 23 of the decision summarises his thinking on the best interest issue where he states:
"I have no doubt that her best interests are to remain in the UK with access to the therapeutic and educational services that she is currently receiving. It is doubtful that this level of services would be available in Bangladesh, even if they could be afforded. I have no evidence to suggest that the appellants would actually be in a position to pay for those services that are available. I also take into account the disruption to her life of moving to Bangladesh and change from an English speaking environment outside the home, to one based on Bengali, as well as the potential difficulties she and her family would face due to social attitudes to autism."
11. Some of the above reasoning might have been relevant to the situation for a child who had been in the United Kingdom for seven years and to whom Section 117B(6) of the 2002 Act might apply. That was the situation considered by the Court of Appeal in MA (Pakistan) for a child with autism. However, The Court of Appeal concluded that the position for that child might have been different without the seven year residence qualification which could be "a significant factor pointing the other way".
12. In the same paragraph the judge also shows that he believed it was relevant that the level of therapeutic and educational services available in Bangladesh would be at a lower level and that the appellants would not, in his conclusion, be in a position to pay for those services. The test is not, in that situation, whether or not the services available reach those in the United Kingdom or that they are affordable. Further, the judge did not consider the economic effect on public finance of letting the child remain as required by the Court of Appeal in AE (Algeria) [2014] EWCA Civ 653. Further, the judge was in error in considering that the English speaking ability of the first appellant would count in favour of the appellants in the balancing exercise when Rhuppiah makes it clear that it is no more than a neutral factor.
13. Having regard to the need for human rights issues to be considered again with evidence to the date of hearing, I conclude that it is appropriate for the matter to be remitted to the First-tier Tribunal for hearing afresh. This is in line with the Practice Statement by the Senior President of Tribunals of 25th September 2012 at paragraph 7.2(b).
DIRECTIONS
14. The appeal is remitted to the First-tier Tribunal for hearing afresh.
15. The hearing will take place at the Manchester Hearing Centre on a date to be specified by the Resident Judge.
16. A Bengali interpreter will be required for the hearing.
17. The appellants' representatives should submit a consolidated bundle of documents and evidence to be presented at least seven days before the remitted hearing date.
18. The time estimate for the hearing is two hours.

Anonymity

As this appeal involves the interests of young children I make the following anonymity direction:

DIRECTION REGARDING ANONYMITY - RULE 14 OF THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge Garratt 15th September 2016