Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23212/2015
IA/25413/2015
IA/25420/2015
IA/25425/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 27 February 2017
On 06 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Miss IRENE KENSAH

Mr KWADWO SARFO

Master LEROY KWADWO OPPONG

Miss ABIGAIL MEGAN AFUA SARFOWAA
(Anonymity direction not made)
Respondents

Representation:
For the Appellant: Mr S Kota, Senior Home Office Presenting Officer
For the Respondent: Ms J Victor-Mazeli (counsel) instructed by Norton Folgate, solicitors
DECISION AND REASONS

1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of the Appellants. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.

2. The Secretary of State for the Home Department brings this appeal but in order to avoid confusion the parties are referred to as they were in the First-tier Tribunal. This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge McGinty, promulgated on 14 September 2016 which allowed the Appellants’ appeals on article 8 ECHR grounds

Background

3. The appellants are all Ghanaian nationals. The first appellant was born on 25th December 1981. The second appellant is the first appellant’s partner. He was born on 20 April 1970. The third and fourth appellants are the children of the first and second appellants. Third appellant was born on 28 January 2008. The fourth appellant was born on 19 November 2010.

4. On 11 June 2015 the respondent refused the appellants’ applications for leave to remain in the UK on article 8 E.CHR grounds.

The Judge’s Decision

5. The Appellants appealed to the First-tier Tribunal. First-tier Tribunal Judge McGinty (“the Judge”) allowed their appeals against the Respondent’s decision on article 8 ECHR grounds. Grounds of appeal were lodged and on 18 January 2017 Judge Page gave permission to appeal stating inter alia

The respondent has identified arguable grounds of appeal that merit full consideration. Although they run into three pages they amount, in essence, to a complaint that the Judge has taken the best interests of the children as determinative of the reasonableness question and failed to take into account the wider public interest considerations, misapplying the Court of Appeal judgement in MA (Pakistan) EWCA Civ 705 [2016]. The respondent’s application has identified arguable grounds of appeal so permission to appeal is granted.

The Hearing

6. (a) Mr Kotas, for the respondent, moved the grounds of appeal. He reminded me that the first and second appellants are the parents of the third and fourth appellants. He told me that the Judge reached unsustainable findings in relation to the third and fourth appellants. He took me to [46], where the Judge found that the fourth appellant, a five-year-old girl, has a significant private life. He told me that at [37] the Judge took direction from the case of Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 197. He told me that if the Judge had followed his self-direction he would not have been able to find that a five-year-old has a significant private life.

(b) Mr Kotas told me that [35] of the decision contains a material mis-direction in law. The fourth appellant is not a qualifying child. The test to be considered for the fourth appellant is one of proportionality, yet at [35] the Judge considers whether or not it is reasonable for the fourth appellant to leave the UK.

(c) At [28] & [29] of the decision, the Judge finds that there are no obstacles to the integration of the first and second appellants into Ghanaian society. Mr Kotas took me to [46], where the Judge makes findings that the appellants could not afford the care that the fourth appellant needs if they are removed from the UK. He told me that the findings in relation to the employability contradict the findings at [28] & [29].

(d) Mr Kotas considered the third appellant. He was critical of the Judge for finding, at [38] and [45], that the third appellant, who is now nine years old, has developed a significant private life. He reminded me of the Judge’s self-direction at [37], and told me that it is perverse to find children aged five years and eight years (at the date of hearing) have a private life which is significant, because their focus will be on their family unit. He told me that at [38] the Judge defines the component parts of the third appellant’s private life in one sentence. He told me that that sentence describes the ordinary interests of an eight or nine-year-old boy and does not amount to a significant private life.

(e) Mr Kotas told me that in making findings of reasonableness, which is the correct test for the third appellant, the Judge focused solely on the benefits of remaining in the UK, and did not balance the public interest or the circumstances the third appellant is likely to face on return to Ghana. He told me that English is the official language in Ghana, and that at [14] the Judge found that there are schools available to the appellants in Ghana. He told me that there was inadequate consideration of whether either of the child appellants are at a critical stage in their education. He referred me to R (on the application of MA (Pakistan) and Others) v Upper Tribunal (Immigration and Asylum Chamber) and Another [2016] EWCA Civ 705 and told me that the Judge’s consideration of the reasonableness test is fundamentally flawed.

(f) Mr Kotas urged me to set the decision aside. He told me that there is no specific criticism of the Judge’s fact-finding, and so asked me to substitute my own decision dismissing the appeals.

7. (a) Ms Victor-Mazeli, for the appellants, told me that the decision does not contain errors of law, material or otherwise. She told me that the Judge correctly and carefully directed himself in law before setting out his findings of fact, and then embarks on a balancing exercise to assess proportionality. She told me that the correct legal tests have been applied and that the conclusion reached was well within the range of reasonable conclusions available to the Judge.

(b) Ms Victor-Mazeli told me that the Judge carefully considered the evidence and took full account of all relevant factors before determining the reasonableness of return for the third appellant, and the proportionality of the respondent’s decision in relation to all four appellants. She told me that the needs of the fourth appellant were a relevant consideration in the overall assessment of proportionality, and that the Judge had considered all relevant factors before reaching a decision which is both well within the range of reasonable decisions and supported by case law.

(c) Ms Victor-Mazeli urged me to dismiss the appeal and allow the Judge’s decision to stand.

Analysis

8. The respondent argues that an incorrect test was applied for the fourth appellant, a five-year-old girl who is not a qualifying child. That argument is based on what is said by the Judge in the penultimate sentence of [35]. It is true that the Judge uses the word “unreasonable” in that sentence. But when the entire sentence is read and when that entire sentence is put into context, it is clear that the Judge is not applying the test of reasonableness in relation to any of the appellants other than the third appellant.

9. The penultimate sentence of [35] is

However, I do bear in mind in that regard that as she is not a British citizen she is not entitled to free schooling in the UK, and the fact that schooling may have to be paid for in Ghana, it does not necessarily mean that it is unreasonable for her to leave the UK, and this is a factor which I have clearly borne in mind in considering proportionality for the purposes of article 8.

10. It is clear from a fair reading of that lengthy sentence that the Judge is applying a test of proportionality. He does not say that he is considering reasonableness. He says that educational factors do not necessarily mean that it is unreasonable for the fourth appellant to leave the UK. That is far from finding that it is unreasonable for the fourth appellant to leave the UK. The use of the word “unreasonable” in the context in which it is used in [35] of the decision is not a declaration of the legal test which the Judge is applying. It is in the final part of that penultimate sentence that the Judge declares correctly the legal test that he has applied.

11. There is no contradiction between the Judge’s findings at [28] and [29], and his findings at [46]. At [28] the Judge finds that there are no significant obstacles to the first appellant’s reintegration back into life in Ghana. At [29] he finds that the second appellant can find employment in Ghana and that there are no significant obstacles to his reintegration into Ghanaian society. At the end of [46] the Judge finds that the first and second appellants have a limited previous employment background and have in the past undertaken relatively low paid jobs. He does not find that employment is not available to the appellants in Ghana. The findings at [46] are consistent with the findings at [28] and [29].

12. The Judge repeatedly finds that private life exists for the third and fourth appellants. For each of them he described the private life as “significant”. Whether he is right or wrong to describe the private life of young children as “significant “is, in this case, irrelevant. In order to move on to the tests of reasonableness for the third appellant and proportionality for all appellants, all the Judge has to do is find that private life exists. He makes that finding, and then moves on to consider the proportionality of the decision in relation to the third and fourth appellant’s, asking whether it is reasonable for the third appellant to be expected to leave the UK. That is the correct test to apply.

13. In Treebhawon and others (section 117B(6)) [2015] UKUT 674 (IAC) it was held that (i) Section 117B (6) is a reflection of the distinction which Parliament has chosen to make between persons who are, and who are not, liable to deportation. In any case where the conditions enshrined in section 117B(6) of the Nationality, Immigration and Asylum Act 2002 are satisfied, the section 117B(6) public interest prevails over the public interests identified in section 117B (1)-(3): (ii) Section 117B (4) and (5) are not parliamentary prescriptions of the public interest. Rather, they operate as instructions to courts and tribunals to be applied in cases where the balancing exercise is being conducted in order to determine proportionality under Article 8 ECHR, in cases where either of the factors which they identify arises.

14. In R (on the application of MA (Pakistan) and Others) v Upper Tribunal (Immigrationand Asylum Chamber) and Another [2016] EWCA Civ 705 it was held that when considering whether it was reasonable to remove a child from the UK under rule 276ADE(1)(iv) of the Immigration Rules and section 117B(6) of the Nationality, Immigration and Asylum Act 2002, a court or tribunal should not simply focus on the child but should have regard to the wider public interest considerations, including the conduct and immigration history of the parents.

15. The real thrust of the respondent’s argument is that the ratio of MA has been incorrectly applied, and that the Judge took a blinkered approach, failing to adequately balance the public interest considerations, and the facts and circumstances of the first second and fourth appellant, against the question of reasonableness of return of the third appellant.

16. At [37] of the decision the Judge takes guidance from Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 197. He is correct to do so. At [39] he correctly looks to R (on the application of MA (Pakistan) and Others) v Upper Tribunal (Immigration and Asylum Chamber) and Another [2016] EWCA Civ 705 and ZH(Tanzania) v SSHD [2011] UKSC 4.

17. Between [26] and [40] the Judge makes findings of fact in relation to each of the four appellants. He does not go straight to the third appellant and find that he is a qualifying child, then take that finding as determinative of all for appeals. Instead, he takes a holistic approach to the facts and circumstances of each individual appellant. He then balances those facts and circumstances (including the finding that the third and fourth appellant’s have established private life, that they are children, and the third appellant is a qualifying child) against the public interest.

18. It is true that there is no detailed consideration of future prospects for the third appellant in Ghana, but it is clear from the Judge’s findings that the third appellant understands his parents native tongue, and his findings that the health and support that the fourth appellant benefits from may not be available to her in Ghana, that he has considered as part of the overall balancing exercise the impact of removal to Ghana on each of the appellants.

19. Having taken correct guidance in law and made findings of fact which the respondent does not challenge, the Judge reached his conclusion. It is not a conclusion that the respondent likes but it is a conclusion which was reasonably open to the Judge on the facts as he found them to be.
20. In Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC) the Tribunal held that (i) Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge; (ii) Although a decision may contain an error of law where the requirements to give adequate reasons are not met, the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant Country Guidance has been taken into account, unless the conclusions the judge draws from the primary data were not reasonably open to him or her.

21 There is nothing wrong with the Judge’s fact finding exercise. In reality the appellant’s appeal amounts to little more than a disagreement with the way the Judge has applied the facts as he found them to be. The appellant might not like the conclusion that the Judge has come to, but that conclusion is the result of the correctly applied legal equation. There is nothing wrong with the Judge’s fact finding exercise. The correct test in law has been applied. The decision does not contain a material error of law.
22. The Judge’s decision, when read as a whole, sets out findings that are sustainable and sufficiently detailed and based on cogent reasoning.
23. No errors of law have been established. The Judge’s decision stands.

DECISION
24. The appeal is dismissed. The decision of the First-tier Tribunal stands.

Signed Date

Deputy Upper Tribunal Judge Doyle