Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22568/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 26th July 2016
On 4th August 2016

Before

upper tribunal DEPUTY judge ROBERTS

Between

Mr G N M
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Dr Mynott, Legal Representative
For the Respondent: Mr M Diwncyz, Senior Home Office Presenting Officer

Anonymity Direction

Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity direction was made by the First-tier Tribunal. It is appropriate to continue that direction.

DECISION AND REASONS

1. The Appellant is a citizen of Cameroon (born 31st May 1970). He has been granted permission to appeal upon a renewed application to the Upper Tribunal, against the decision of First-tier Tribunal Judge Kelly, to dismiss his appeal against the Respondent's refusal to grant him leave to remain in the United Kingdom on account of his Article 8 ECHR private/family life. The Respondent's refusal decision is dated 3rd June 2015.
Background
2. By way of background, the following summary of facts is set out below.
3. The Appellant arrived in the United Kingdom on 24th August 2004, with leave to remain (as a student) until 31st October 2006.
4. The Appellant's future wife, M B A, also a citizen of Cameroon entered the United Kingdom on 16th December 2005; initially as a visitor, and thereafter as a student.
5. The Appellant was granted further leave to remain between 21st December 2006 and 30th November 2007. Another, period of leave to remain was then granted between 13th November 2007 and 30th October 2013.
6. The Appellant and M B A were married, at the Barking and Dagenham District Registry, on 21st July 2007. They have three children, D (born on 8th April 2008), A (born on 4th September 2009), and M (born on 31st December 2013). The children were all born in the UK but are all nationals of Cameroon. The two eldest children are settled and doing well at local schools. Social Services are involved with the family due to the fact M suffered an accidental burn when she was but a few months old. There are however no family court orders or extant child-care proceedings. The family are active members of their local Pentecostal Church.
7. On 15th November 2013, the Appellant and his now wife made a joint application for leave to remain on private and family life grounds. This was refused on 10th December 2013 and their appeal against that decision was dismissed by the Tribunal (Judge Duff) on 24th March 2014. They had exhausted all their avenues of appeal against this decision by 15th April 2014.
8. On 5th March 2015 the Appellant made yet a further application for leave to remain. It was on a two-fold basis. First he said that he qualified for leave to remain on what is described as the 10years' continuous lawful residence rule (paragraph276B of the Immigration Rules) and secondly his removal would be incompatible with his article 8 ECHR rights as it would be contrary to the best interests of his children. I pause here to record that Judge Kelly found that the Appellant had not satisfied paragraph 276B by 10 years lawful residence in the UK and no challenge has been raised on that finding.
FtT Hearing
9. The Appellant's appeal came before the First-tier Tribunal on 6th November 2015. That Tribunal set out fully, in a structured way, the evidence before it. It referenced the documentary evidence at [15] and [16] and outlined that oral testimony was taken from the Appellant and his wife [17].
10. Full findings of fact, with reasons, were given, stretching over several paragraphs. The First-tier Tribunal then analysed its conclusion applying the facts found to the relevant legal principles. The First-tier Tribunal firstly looked at the position of the Appellant and his family under paragraph 276ADE as it was required to do; directed itself that it must look at the "best interests" of the Appellant's children as a primary consideration and reminded itself that the Appellant's appeal turned on the question of reasonableness posed by paragraph 276ADE and Section 117B(6) of the 2002 Act.
11. In the course of analysing the evidence before him, Judge Kelly referred to his primary findings in relation to the best interests of the Appellant's children [29] and reminded himself that the Appellant's three children had been born in the United Kingdom and that the eldest child, born on 8th April 2008 had by the date of the hearing before him been in the United Kingdom for over seven years.
12. Bringing all those factors together, the judge found however, that the Appellant had not made out his case.
Onward appeal
13. The Appellant appealed the First-tier Tribunal Judge's decision, originally to that Tribunal. Permission was refused. In refusing permission DJ Manuell said the following:
"2. The Appellant's onwards grounds dated 9 December 20145 were in time. The discursive grounds in summary asset that the judge failed (a) to have regard to relevant evidence; (b) misconstrued EV (Philippines) [2014] EWCA Civ 874; (c) failed to apply the Home Office's own guidance and (d) failed to consider whether the Secretary of State's duties had been complied with.
3. The grounds have no substance at all and fail to identify any arguable error of law. The experienced judge gave detailed consideration to the evidence and reached secure and sustainable conclusions, referring specifically and addressing the evidence concerning the child and indeed also whether the Secretary of State had complied with her duties. Home Office guidance is not law. There is no basis for interfering with a full and careful decision which fully reflects current law."
14. The Appellant renewed his application to the Upper Tribunal and Judge McWilliam granted permission in the following terms:
"The Appellant seeks permission to appeal against the JFtT Kelly to dismiss his appeal against the decision of the Secretary of State to refuse his application for leave.
The Appellant has been here since 2004 and his wife came here in 2005. They have three children born here on 8.4.08, 4.9.09 and 31.12.13.
The Appellant relies on the grounds to the FtT. The eldest child was aged seven at the date of the hearing. The judge recognised the significance of seven years and considered 'reasonableness', but it is arguable that his assessment of reasonableness was tainted by consideration of factors which are arguably less relevant when a child has been here for seven years and when there is reliance on section 117(B)(6). It is arguable that the judge erred in assessing the evidence of the social worker in the context of the fact that it was premised on the assumption that the child's parents would be able to stay here."
15. Thus the matter comes before me, to decide initially, whether Judge Kelly's decision discloses an error of law, such that the decision must be set aside and remade.
Error of Law Hearing
16. Before me the Appellant was represented by Dr Mynott and the Respondent by Mr Diwnycz. At the start of the hearing, Dr Mynott informed me that the Appellant was not present. He had suffered chest pain and was admitted to hospital on 14th July but discharged on 21st July. He was readmitted to hospital on 23rd July and remains there, being kept in for observation. It was agreed that this being an error of law hearing and the Appellant being represented, it was not necessary to adjourn the hearing. The Appellant's wife and children were in attendance. It was agreed that if I reached a stage where I found an error of law which required further evidence to be heard, then the hearing would be adjourned for a continuation hearing to take place on a further date.
17. Dr Mynott's submissions went along the lines contained in the original grounds seeking permission. He said firstly the FtT had erred in its approach to the question of "reasonableness". The judge had failed to properly take into account the evidence of the social worker and the evidence from the children's school. That evidence reflected the children's views and those views must be given proper weight. He submitted that a fair reading of those reports, should have led the judge to the conclusion that the private lives of the children would be seriously interfered with by their parents' removal and that serious interference would be sufficient to make it unreasonable that the children accompany their parents to Cameroon.
18. The FtT erred further when considering its assessment of the reasonableness and best interests of the children, by placing reliance on EV (Philippines) and treating the instant appeal as on all fours with that case. He said the judge had failed to have appreciation that the case before him involved a child who had been in the UK for more than seven years, whereas this was not the case in EV (Philippines). This he submitted tainted the judge's approach. Dr Mynott relied on the Tribunal decision in PD (and others) [2016] UKUT 00108 (IAC) BOLD
19. The final submission by Dr Mynott amounted to this. The judge had failed to properly consider whether the Respondent had discharged her duty under Section 55 Borders, Citizenship and Immigration Act 2009, because he had not properly taken into account the views of the children as outlined in ZH (Tanzania)[2011] UKSC 4 and in any event the Respondent had failed to have regard to her own IDI policy regarding the best interests of children.
20. The Court of Appeal decision in MA and Others [2016] EWCA Civ 705 was referred to with reference to the points above being made. Seven years' residence is a factor which must weigh heavily in an appeal. The judge had not, he submitted given the appropriate weight to that factor.
21. Mr Diwnycz on behalf of the Respondent submitted a Rule 24 response. Through that response he set out that the FtT was unimpeachable and the grounds put forward on behalf of the Appellant amounted to no more than a sustained disagreement with the findings made by Judge Kelly.
22. In reliance upon that, Mr Diwnycz countered Dr Mynott's submissions by saying that the decision showed that the FtT took into account the children's views as expressed and set out in [22] to [23] inclusive. Contrary to what is claimed, the ages of all three children were considered together with their length of stay in the United Kingdom in great detail. Further the judge was perfectly entitled to rely on EV (Philippines) - it is clear from a reading of the decision, the judge is simply following the principles set out in that case that the best interests of a child are in remaining with its parents.
23. So far as ZH (Tanzania) is concerned, whilst the Respondent would accept the principles of that case that the best interests of the children must be a primary consideration, the facts surrounding this appeal showed that that is precisely the course the Secretary of State followed. Equally the judge has referred to Section 55 [24] and followed the principles set out therein. This in turn means that regard has been had to the IDI policy.
Consideration and Findings
24. I find, first that the FtT was wholly cognisant with the requirements which it had to take into account, when considering the reasonableness test in respect of the Appellant's children, with particular reference to D, the eldest child, who has now been in the United Kingdom over seven years.
25. In particular at [27] the judge specifically mentions that he turns to consider the position of the Appellant and his family under paragraph 276ADE of the Rules and then again at [30] specifically considers the question of reasonableness that is posed by paragraph 276ADE of the Rules and Section 117B(6) of the 2002 Act. He directs himself that the question posed must be answered within the context of whether it is reasonable to expect a child to follow his or her parents to their country of origin. I find nothing wrong with that direction.
26. The judge reminded himself at [29] that his findings on the "best interests" of the children could be found in [20] to [23] of his decision. He expressly found that any claim by the Appellant that his daughters would be subject to FGM was unfounded. He placed reliance on this as he was entitled to do by reference to the decision of Judge Duff dated 25th March 2014 dismissing the Appellant's appeal when that particular point was raised and argued before him.
27. Judge Kelly accepted that the children are settled and happy at school. Further he noted the concern made by the social worker that removing the children from their current settled environment would be disruptive, but in his assessment he found that the social worker's report did no more than state the obvious. Criticism has been made of the judge for his approach to both the social worker's report and the school report. I find that criticism unjustified. I find that the judge has focused as he was tasked to do on what amounted to the best interests of the child and came to conclusions that were open to him that even though it could be said that there would be disruption to the children's lives, nevertheless it was reasonable to expect the children to remain with their parents as part of their parents' family unit and to relocate with their parents to Cameroon. The judge kept in mind that although the eldest child has been in the United Kingdom over seven years, nevertheless for the first four years of that child's life its primary focus would be its parents and family. That is a finding and conclusion that the judge was entitled to take into account when assessing what weight should be placed on the amount of time the child has resided in the UK.
28. I find that little turns on the complaint that the judge has in some way fallen short of make proper enquiry concerning the views of the children. He has dealt with that point at [24]. Equally in that paragraph the judge notes that in the Respondent's explanatory letter, the decision maker in this case gives fairly detailed consideration to the need to promote the welfare of the children.
29. Accordingly for the foregoing reasons, I find that the judge has given full and careful consideration to the evidence before him and has fully considered the question of whether it is reasonable to expect the Appellant's children, including the eldest, to accompany their parents on return to Cameroon. The decision of the First-tier Tribunal contains no error of law requiring it to be set aside. The decision therefore stands.

Notice of Decision

This appeal is dismissed. The decision of the First-tier Tribunal promulgated 27th November 2015 stands.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is 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 Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed C E Roberts Date 03 August 2016

Upper Tribunal Deputy Judge Roberts