Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/22764/2015, IA/22766/2015
IA/22769/2015, IA/22770/2015
IA/22771/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 February 2017
On 28 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

(1) A C O G
(2) M T P
(3) C M O T
(4) S M O T
(5) M O T
(ANONYMITY DIRECTION MADE)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr M Harris, counsel
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS
1. This matter comes before me for consideration as to whether or not there is a material error of law in the determination of First-tier Tribunal Judge Traynor (“the FTTJ”) promulgated on 7 September 2016, in which he dismissed the appellants’ appeals against the refusal of their applications for leave to remain in the United Kingdom on human rights grounds.
2. No anonymity direction was made in the First-tier Tribunal but, given the fifth appellant is a minor, the appellants are entitled to anonymity in these proceedings. I make a direction accordingly.
Background
3. The appellants are Bolivian citizens. The first and second appellants are the parents of the remaining three appellants. The first and second appellants were granted leave to enter the UK as visitors for six months in April 2004. The second appellant was then granted leave to remain as a student and the first appellant as her dependent, both until 31 December 2005. The third and fourth appellants entered the UK as dependents of the second appellant with leave to expire on the same date as their parents. On 10 March 2006 the second appellant was granted further leave to remain as a student until 31 January 2007, with the first, third and fourth appellants as her dependents. That leave was later extended to 31 March 2009. In the meantime, the fifth appellant was born on 2 September 2008. The second appellant was granted further leave to remain as a student with all remaining dependents granted leave as her dependents. That leave was extended to 19 January 2011. On 23 January 2014 the appellants applied for leave to remain outside the Immigration rules. That application was refused without a right of appeal. A second application by the appellants was refused on 5 June 2015 and the appeal against that refusal was dismissed by the FTTJ.
4. The appellants sought permission to appeal on various grounds. This was granted in the following brief terms:
“… It is arguable that the judge has erred in law in the assessment of the position of the child appellants in respect of the Immigration Rules, Article 8 and their best interests.
3. I grant permission to appeal.”
5. Hence the matter comes before me.
Submissions
6. Mr Harris, for the appellants, relied on the grounds of appeal and I summarise these as follows:
a. The FTTJ had failed to examine the children’s circumstances in the UK;
b. He had failed to consider the best interests as a stand-alone consideration.
c. The FTTJ had failed to have proper or adequate regard to the impact on the children of removal (contrary to PD (Article 8 – conjoined family claims) Sri Lanka [2016] UKUT 00108 (IAC)). The children were fully integrated into British life.
d. He had failed to consider properly the public interest factors in s117A-s117B.
e. The FTTJ had held against the children their parents’ poor immigration history, contrary to MA (Pakistan) [2016] EWCA Civ 705.
f. It had been an error of law to make adverse credibility findings against the appellants without consideration of the fourth and fifth appellants’ circumstances.
7. Mr Harris expanded upon these grounds by referring me to the fourth appellant’s evidence of her circumstances in the UK, the impact of removal on her and her ties in the UK. He submitted the FTTJ had not engaged with her unchallenged evidence about her connections with the UK and her plans for her future here. The essence of the case was, he submitted, that the fourth appellant, at the date of application was still a child and could succeed under paragraph 276ADE(1)(ii) and (iv). The fifth appellant was aged 8 at the date of hearing and capable of engaging s117B(6) as regards the impact of removal on himself and his parents. The third appellant had been an adult throughout but she was part of the family, unusually more dependent on her family than the norm. These were, he submitted, the building blocks on which he had sought to persuade the FTTJ with regard to the fourth and fifth appellants.
8. Mr Harris submitted that the family’s circumstances on return, while relevant, were not determinative. The FTTJ had referred to paragraph 49 of MA (Pakistan) but this dealt with s117B(6); more relevant was paragraph 46. He submitted that the FTTJ fell into material error of law at paragraph 62 in referring to s117B(6) inappropriately: he had failed to identify the best interests of the children and should have done so before applying s117B(6). Prior to paragraph 65, there was no clear finding as to the best interests of the fourth appellant. It was acknowledged that, in considering Article 8 outside the Rules, at paragraph 67, the FTTJ had referred to the fourth appellant’s best interests but there was no fact finding to support that reference. The FTTJ had not treated as his starting point the requirement for strong reasons to be shown to justify the child leaving the UK.
9. As regards the findings outside the Rules, Mr Harris submitted it had been an error of law for the FTTJ to fail to make any findings about the best interests of the fifth appellant. This was contrary to the guidance in MA (Pakistan) to the effect that weight should be given to a private life established over seven years in the UK. There were also repeated references to there being no adverse consequences for the fifth appellant going to Bolivia but that was not the test, albeit a factor to be taken into account. He submitted that this was not a case where the appeal of the fourth appellant could not possibly have succeeded; thus the error of law with regard to the failure to identify her best interests was a material one.
10. Mr Bramble, for the respondent, submitted that this was a mere disagreement with the decision. There was no error of law. The focus had been on the fourth appellant yet there was little evidence of his private life save to say he was at primary school here. There was little detail about the fifth appellant’s private life and future plans. The FTTJ had dealt with all the relevant factors and evidence. It was said the FTTJ had not made findings with regard to the best interests of the children. However, the FTTJ had addressed the reasonableness of leaving the UK in paragraph 65 and made clear findings which were sustainable on the evidence. The FTTJ had had the guidance in MA (Pakistan) in mind when making those findings. Paragraph 45 of MA (Pakistan) was a reminder that the public interest had to be taken into account when looking at s117B(6). The FTTJ had been entitled to make adverse credibility findings about the ability of the fifth appellant to speak Spanish. There was, he submitted, no requirement as to the order in which matters should be considered, so long as the FTTJ did not make up his mind before considering all aspects. He was entitled to take into account that the parents had had no intention, from the outset, of leaving the UK.
Discussion
11. It was accepted by the appellants at the hearing before the FTTJ that only the fourth appellant fulfilled the criteria in the Appendix FM and/or paragraph 276ADE(1) of the Immigration Rules (paragraph 14 of the decision refers). The FTTJ was invited to find that the fourth appellant, who had spent seven years in the UK by the date of application, qualified under paragraph 276ADE(1)(iv). It was also submitted that the fifth appellant, who was aged seven by the date of hearing, was a qualifying child pursuant to s117B(6). This was relevant to consideration of the appeals outside the Rules pursuant to the Article 8 jurisdiction. The FTTJ noted Mr Harris’ concession for the appellants that “without the presence of the minor Appellants, the First, Second and Third Appellants, they would not have a very strong case”. Thus, in essence the crux of the appeals was whether it was reasonable to expect the fourth and fifth appellants to leave the UK. It is relevant to note that, at the date of application the fourth appellant was aged 16 and the fifth appellant aged 6; by the date of hearing the fourth appellant was aged 18 and the fifth appellant aged 7.
12. Paragraph 64 of the decision appears to contain an error in that it refers to the “Third Appellant” but addresses the issue of whether it is reasonable to expect her to leave the United Kingdom which is not an issue to be decided in respect of that appellant, only the fourth and fifth appellants. I find therefore that this is a typographical error and that the FTTJ is referring to the fourth appellant to whom he refers in the last line of that paragraph and in the following paragraph. His findings of fact are relevant to her also. I also find that the reference to paragraph 276ADE(1)(vi) in that paragraph and the following paragraph is a typographical error. Sub-paragraph (vi) relates to those who are over the age of 18 and whether there are very significant obstacles to integration on return. It is clear from the start of [64] that the FTTJ was considering the issue of reasonableness which is relevant to consideration of sub-paragraph (iv). This is the sub-paragraph under which the respondent refused the fourth appellant’s application for leave to remain and was therefore the issue to be addressed by the FTTJ.
13. In considering the circumstances of the fourth appellant, the FTTJ noted his “obligation to consider the best interests of the child as a primary consideration” at [58]. He also noted at [67] “that within the context of Section 55 her best interests are served by her remaining with her family, whether that be in the United Kingdom or in Bolivia”. There is no further analysis or finding about the best interests of this appellant. He has merely made findings as to whether it would be reasonable to expect her to leave the UK “taking into account the public interest” [65]. The best interests of the children should be considered in isolation from other factors, such as the parents’ misconduct (Kaur (children’s best interests / public interest interface) [2017] UKUT 00014 (IAC)). The FTTJ has failed to undertake a separate consideration. He has failed to follow the seven principles in Zoumbas v SSHD [2013] UKSC 74, affirmed in Kaur at [13]. As is stated in Kaur: “the assessment of a child's best interests must focus on the child, while simultaneously evaluating the reality of the child's life situation and circumstances”.
14. The failure of the FTTJ to conduct an assessment and make findings on the best interests of the fourth appellant is a fundamental error of law. The FTTJ also failed, in his Article 8 assessment outside the Rules, to identify the best interests of the fifth appellant. This too was an error of law.
15. I am unable to accept the submission for the appellants that the FTTJ failed to consider properly the public interest factors in s117A-s117B of the 2002 Act: he took into account the appellants’ immigration history at [62], their English language skills and financial circumstances at [73]. He bore in mind the public interest factor at s117B(6) at [62].
16. The FTTJ was entitled to weigh in the balance the parents’ poor immigration history when considering the issue of reasonableness of expecting the fourth and fifth appellants leaving the UK. In MA (Pakistan) Elias LJ indicated (at [13]) that the question of reasonableness had to be approached in the same way whether it arose pursuant to subparagraph 276ADE(iv) of the rules or pursuant to section 117B, although in the former the seven years’ residence (of the child) was assessed as at the date of application whereas under section 117B it was the date of the court’s determination. At paragraph 45 Elias LJ confirmed that “it is not blaming the child to say that the conduct of the parents should weigh in the scales when the general public interest in effective immigration control is under consideration”. He concluded at [45] that, in the light of MM (Uganda), wider matters did have to be considered than merely the best interests of the child. I am unable to find that the FTTJ held against the children the poor immigration history of the parents.
17. The ground of appeal that the FTTJ had made an error of law in making an adverse credibility finding as regards the children’s ability to speak Spanish must also fail. His finding is grounded in the evidence and is sustainable on that evidence. The FTTJ’s reasons are adequately explained. Such a finding is relevant to his assessment of the issue of reasonableness of expecting the fifth appellant to leave the UK and return to Bolivia. It is a relevant and sustainable finding.
18. It was submitted by Mr Harris that, if I were to find an error of law, this was not a case where there was no possibility of the fourth appellant’s appeal being successful. He submitted that the error was therefore material. I address that issue now.
19. The evidence of the fourth appellant is that she is settled in the UK with “good and subsisting friends”. She had, at the date of hearing, finished her first year of a BTec Level 1 Creative Arts and Media course. She had become depressed as a result of the uncertainty of her immigration status. She was unable to get a job; her academic work had suffered and she had missed a year of college. By the date of the hearing she had been in the UK for 11 years and 9 months. She stated that in the UK she could “go after [her] passion of the arts and build a successful future” for her and her family. This appellant came to the UK at the age of six. Thus she has spent her formative years in the UK; most of her schooling has been undertaken here. While she says in her witness statement she does not speak Spanish, under cross-examination she said he spoke “basic Spanish but had never studied that language in the UK”. She said her parents spoke Spanish in the home albeit not to her. Given the length of time she has spent in the UK, that she has formed social relationships here outside the home, has embarked on her chosen (albeit interrupted) education path for a career in the arts, it is in her best interests to remain here and complete her course of study with a view to a career in the arts.
20. If the fourth appellant were to return to Bolivia she would do so with her family; to that extent her family life would continue as presently: she would remain within the family unit. Insofar as her private life is concerned, Section 117B(5) provides that “Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious”. That is the case here. I bear in mind she cannot be blamed for the poor immigration history of her parents. The "little weight" provisions in Part 5A of the 2002 Act do not entail an absolute, rigid measurement or concept; "little weight" involves a spectrum which, within its self-contained boundaries, will result in the measurement of the quantum of weight considered appropriate in the fact sensitive context of every case (Kaur). In the present case there is no medical evidence to suggest that this appellant is vulnerable or that her circumstances are compelling. She lives within the family unit. Her studies have been interrupted as a result of the impact of her uncertain future in the UK and her lack of immigration status. She is unable to work in the UK for the same reason. Thus she is not currently engaged in study. She is financially dependent on her parents. She has not identified any particular chosen career for which she is aiming in the UK. Her evidence on her future in the arts is vague and lacking in detail. There is no evidence she has a particular objective in mind. While she says her anxiety and depression would worsen if she were to return to Bolivia, there is no medical evidence to support this claim. There is no independent evidence that she would not be able to study or work in the arts in Bolivia. She speaks basic Spanish and could improve her language skills on return. She speaks English but is not financially independent. The maintenance of effective immigration control is in the public interest (s117B(1)). Weighing these issues in the balance, there was no possibility of the FTTJ finding that it was unreasonable to expect the fourth appellant to leave the UK, particularly as she would do so with her parents and siblings (Paragraph 276ADE(1)(iv)). There is no basis upon which the FTTJ could have concluded that this appellant’s interests would be so much better served by allowing her to remain in the UK that they outweighed all other considerations.
21. I turn to the materiality of the error of law in relation to the fifth appellant. He did not fulfil the criteria in the Immigration Rules for the grant of leave to remain at the date of decision. His appeal was therefore considered outside the Rules. It was submitted, correctly, that he fell within the criteria in s117B(6). Again, the FTTJ failed to identify the best interests of this child. However, it is clear from the evidence that these can be identified as his remaining within the family unit and at his current primary school in the UK. Here he has access to free healthcare should he need it. As is stated in his school’s letter of 27 March 2015 “it is important to maintain the continuity of [his] education by him remaining at Rye Oak and for the family to continue to receive support from the school community”. The evidence is that this child is integrated at school albeit, according to his school, he “receives extra help with writing and maths due to English being his second language”. He has made close friendships with his peers.
22. In accordance with s117B(5) little weight must be given to the fifth appellant’s private life, it having been established when his immigration status was precarious. In any event the fifth appellant’s private life is limited, due to his age, to social relationships with pupils and staff in school and amongst his family’s friendship groups. The maintenance of effective immigration control is in the public interest (s117B(1)) and this appellant does not qualify for leave to remain under the Rules. This child is dependent on his parents. He is aged 8. He is not at a critical stage of his education. His primary language is Spanish and he can continue his schooling in Bolivia. He would be returned to Bolivia within the family unit and would have the support of his parents and siblings in adapting to life there. He is familiar with Bolivian culture in that he has grown up within a Bolivian family speaking Spanish, albeit he has never lived there. While it would be in his best interests to remain in the UK with access to a better education and healthcare, he can continue his education in Bolivia and there is healthcare available to him there. Given this child appellant’s circumstances there was no basis for a finding that his interests outweighed the public interest. The error of law in failing to identify his best interests was not therefore material to the outcome.
23. For these reasons, I am unable to find that the FTTJ’s errors of law are material to the outcome. His decision must stand. I do not set it aside.

Decision
24. The making of the decision of the First-tier Tribunal did not involve a material error of law and the decision is not set aside.
25. This appeal is dismissed.

A M Black

Signed Date 27 February 2017
Deputy Upper Tribunal Judge A M Black

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellants 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 appellants and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

A M Black

Signed Date 27 February 2017
Deputy Upper Tribunal Judge A M Black