Tribunal decisions

The decision

IAC-FH-nl-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/23316/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 February 2017
On 8 March 2017

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

mr shahbaz hussain
(aNONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr P Richardson of Counsel, instructed by Pioneer Solicitors
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appealed with permission against the decision of First-tier Tribunal Judge Cary promulgated on 14 July 2016 to dismiss his appeal against the refusal of the Secretary of State dated 12 June 2015 to grant his application for leave to remain on the grounds of family and private life under Article 8.
2. The appellant is a citizen of Pakistan, born on 3 April 1972 and now aged 44. He married his wife, Ms Mubashara Noor, in Pakistan on 22 December 2004 and according to the appellant and his wife, they came to the UK as visitors in June 2005 with the benefit of entry clearance valid from 20 May 2005 to 20 November 2005. His wife remained in the United Kingdom although the appellant returned and he then returned with a visit visa on 26 January 2006. The appellant and Mrs Noor have three daughters born in the UK on 14 March 2006, 9 May 2007 and 4 November 2008 and as at the date of the hearing before First-tier Tribunal Judge Cary were aged 10, 9 and 7.
3. The appellant remained in the United Kingdom, unlawfully, after the expiry of his visit visa in 2006 and in 2008 he separated from his wife. His wife and children were subsequently granted discretionary leave to remain in 2012 until 8 August 2015 following a failed application for asylum. The appellant claims he subsequently reconciled with his wife in 2013 and then applied for further leave to remain on the basis of his family and private life on 3 September 2013 and that application was rejected on 6 September 2013. The appellant made further applications for leave to remain which were rejected. He submitted judicial review proceedings and those proceedings were compromised in March 2015 whereby the respondent agreed to reconsider the application. The Secretary of State maintained her decision and further decided he was liable for removal under Section 10 of the Immigration and Asylum Act. The appellant appealed.
4. At the First-tier Tribunal the judge recorded at paragraph 5 that paragraph 276ADE was not being pursued and only the “parent route” was identified as a route for success.
5. The grounds for challenge to Judge Cary’s decision are as follows:
Ground (i)
At the date of the hearing the children were aged 10, 9 and 7 years old and therefore all three were qualifying children for the purpose of Section 117D(1)(b) of the Nationality, Immigration and Asylum Act 2002. The judge had erred in his decision [31] of the decision, in only considering two of the three children who had been continuously resident in the UK for more than seven years. When this paragraph was read in conjunction with paragraph 18 of the decision it would appear that the judge was approaching the length of residence as that accrued at the date of application. Section 117 did not confine consideration of the length of residence to the date of application. It was accepted that by reason of E-LTRPT2.3 the appellant could not succeed under the parent route but for the purposes of Article 8 assessment outside the Rules the relevant period of residence for each child was that accrued by the date of the hearing.
6. At no point did the judge identify that he was dealing with three qualifying children and this was an error of law.
Ground (ii)
7. It was submitted that the judge erred by failing to assess the best interests of the appellant’s children.
8. In paragraph 31 the judge carefully set out all the information which he felt had been omitted from the evidence but there was a stark failure to assess the children’s best interests.
Ground (iii)
9. From paragraph 26 it can be seen that the judge was informed of the fact that the appellant’s eldest daughter had qualified for British citizenship and consequently made an application for registration and that “it is now known that this application was successful. On 6 July 2016 a certificate of registration was issued”. The judge erred in attaching no weight whatsoever to the acquired British nationality of this child. This was a factor which was potentially determinative of the appeal as a British citizen child cannot reasonably be required to relocate outside the European Union. This follows Sanade and Others (British children – Zambrano - Dereci) [2012] UKUT 48 and AQ (Nigeria) and Others [2015] EWCA Civ 250 and the concession which continue to be reflected in the respondent’s own guidance.
Ground (iv)
10. The judge erred in his approach at paragraphs 30 and 31 to the grant of discretionary leave to remain to the appellant’s wife and children. On any sensible view this grant reflected the fact the respondent had assessed their claims and determined that it was unreasonable for them to return to Pakistan.
11. It was submitted that if there was any doubt about the reasons for grant of leave to these family members the judge should have resolved that right by requiring the respondent to explain the grant.
Ground (v)
12. It was submitted that the judge’s approach to the impact on the proportionality assessment of children residing in the UK for more than seven years was inconsistent with MA (Pakistan) [2016] EWCA 705:
“46. Even on the approach of the Secretary of State, the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise. Indeed, the Secretary of State published guidance in August 2015 in the form of Immigration Directorate Instructions entitled ‘Family Life (as a partner or parent) and Private Life: 10 Year Routes’ in which it is expressly stated that once the seven years' residence requirement is satisfied, there need to be ‘strong reasons’ for refusing leave (para. 11.2.4). These instructions were not in force when the cases now subject to appeal were determined, but in my view they merely confirm what is implicit in adopting a policy of this nature. After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK. That may be less so when the children are very young because the focus of their lives will be on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child's best interests will be to remain in the UK with his parents as part of a family unit, and that must rank as a primary consideration in the proportionality assessment.
13. At the hearing before me Mr Richardson expanded on his grounds. He submitted that even though the matter of the two as opposed to three qualifying children was a minor point Judge Cary had indicated that there was a check box balance sheet and all factors favouring grant of leave should be taken into account. The matter should have been looked at, by way of Article 8 outside the Rules and the heart of the assessment was the best interests of the child which the judge had failed to identify. The fact that there was minimal evidence did not absolve the judge of further findings and he could have sought further information should he require. That said, the school report and certificates of achievement had been submitted.
14. Mr Richardson submitted there was no information on why he was given discretionary leave and letters did not give information. Regard should have been made to that fact. Of crucial important was the fact that the eldest daughter had lived in the UK for ten years and had now registered as a British citizen. It had been accepted where British citizen children should not be required to relocate outside the UK under Section 117(6) confirmed that a person with a genuine parental relationship with a child and where it was not reasonable to expect that child to relocate outside the UK was a factor to be taken into account. MA (Pakistan) was handed down on 7 July and prior to the promulgation of this determination significant weight should have been given to the fact that there was a child or children with seven years’ residence in this country and the judge had failed to consider this.
15. Mr Tufan pointed out that the appellant and spouse were there at the hearing and failed to give evidence. The judge emphasised that there were no school letters. There was insufficient evidence to make a best interest assessment and it was clear that the best interests were for the children to be with their parents. The judge had concentrated on EX.1. rather than considering circumstances outside the Rules but there was no evidence as to what awaited the family and the outcome of the appellant’s daughter’s British citizenship application was not known at the time. Mr Tufan submitted there was no material error of law.
Conclusions
16. In conclusion, I take each ground as they are set out. In relation to ground (i) the judge was fully aware that the children were all over the age of 7 and although he was led to believe that he should be considering the matter under the parent route, nonetheless proceeded to assess the appellant’s appeal outside the Rules on Article 8 grounds. The judge at paragraph 2 set out the ages of the children and clearly set out at paragraph 20, when applying the five stage test in Razgar v SSHD [2004] UKHL 27, Section 117 of the Nationality Immigration and Asylum Act 2002, and that a qualifying child included a person under the age of 18 who has lived in the United Kingdom for a continuous period of seven years or more as at the date of the hearing. The judge was aware of the ages of the children and albeit that he made reference to two of the children rather than three, I am not persuaded since the judge found at paragraph 31 in relation to the two older children that they had been continuously resident in the UK for more than seven years, there would be any reason to suppose that the judge would have taken a different approach to assessing three of the children. That he has not made specific mention of the third child in this light is not a material error. The judge is clearly aware that there are three children and at paragraph 31 where he states:
“The fact that two of his three children have been continuously resident in the UK for more than seven years was never a guarantee that the appellant would be entitled to succeed under Section 117B(6). All it meant was that he was entitled to argue that it would be unreasonable to expect the children to leave the United Kingdom.”
17. In relation to ground (ii), it is asserted that the best interests of these children were not made but at paragraph 22 the judge clearly sets out the best interests of the children and sets out the following:
“It must be in the children’s best interests for them to have continued contact with their father as it is conceded that he has a genuine and subsisting parental relationship with them. That is a primary consideration. It also follows that if the conditions enshrined in Section 117B(6) of the 2002 Act are satisfied that must be determinative of the ‘public interest question’, namely the issue of proportionality under Article 8(2) ECHR following what is said in Treehhawon and Others (section 117B(6)) [2015] UKUT 00674.”
18. In ground (iii), throughout the determination that the judge criticised the extent of the information laid before him but the judge did note that an application had been made to obtain British citizenship for the eldest child and there is no reason in the determination to conclude and deduce that he failed to factor this in. In short however the evidence of the success of otherwise of the application was not before the judge. It was not the case that as at the time the judge made his decision there was firm evidence before the judge that the eldest child had been granted British citizenship. She had not. The evidence that was put before the judge was the response from the Secretary of State requesting original documents to show that the child had been in the UK for ten years. There was no firm guarantee that this child would be able to obtain British citizenship and despite the attempt to place that evidence before the Tribunal in the Upper Tribunal it was not before the First-tier Tribunal.
19. Thus it was open to the judge to place only limited weight on the assessment of the British citizenship of the eldest child. The judge cannot be criticised for failing to follow Sanade and the Home Office policy when there was no firm evidence before him that the child had obtained British citizenship.
20. Turning to ground (iv) it was submitted that the judge erred at paragraphs 30 and 31 to his approach to the grant of discretionary leave to the appellant’s wife and children and a failure to take this into account. This was not a fact that the judge omitted from his consideration and indeed the judge pointed out, at paragraph 30:
“However, the fact that they may have discretionary leave to remain in the United Kingdom does not mean that it automatically becomes unreasonable to expect them to move to Pakistan.”
21. The judge proceeded on the basis that even in relation to a British citizen child, let alone one with discretionary leave, “there was nothing in the 2014 Immigration Act to suggest the acquisition of citizenship automatically meant that it would not be reasonable to expect that child to leave the United Kingdom.” Even if that is disputed, the fact is it remains that there was no firm evidence before the judge that the eldest child had obtained British citizenship. On an overall reading it is clear that the judge did take into account the fact of discretionary leave in the assessment.
22. As the judge pointed out at paragraph 31 the appellant’s statement that after he left his wife and children his wife applied for asylum and her application was unsuccessful that she and the children were granted discretionary leave for a limited period. The judge pointed out that he did not know the basis for such a grant but that there was nothing in the appellant’s wife’s statement dealing with any of this. It would appear the appellant’s wife did not give oral evidence at court.
23. The judge proceeded to be criticised by Mr Richardson for his failure to seek an adjournment and seek more information but that criticism was not part of grounds clearly made out in the written grounds. The judge stated at paragraph 31 the following:
“31. It would appear from the Appellant’s statement that after he left his wife and children in 2008 his wife applied for asylum. Her application was unsuccessful but the children and herself were granted discretionary leave to remain on 8 August 2012 until 8 August 2015. I do not know the basis for such grant. In particular, I do not know if leave was granted because of any particular difficulties the children might face in Pakistan. There is nothing in Mrs Noor’s statement dealing with any of this. I do not know the extent to which the children are integrated into United Kingdom society. I accept their ties with Pakistan are minimal as none of them have ever lived there. I do not know anything about their language capabilities or how they would manage in Pakistan. I do not know what impact the children’s departure for Pakistan would have on their education or for that matter any friendships, relationships or activities they may have established in the United Kingdom. The statements of both Mrs Noor and her husband are remarkably silent and lacking in details on any of these issues and as previously explained the Appellant elected not to give oral evidence. The fact that two of his three children have been continuously resident in the United Kingdom for more than 7 years was never a guarantee that the Appellant would be entitled to succeed under s117B(6). All it meant was that he was entitled argued that it would be unreasonable to expect the children to leave the United Kingdom. There is no evidence before me to suggest that Yashfeen and Aliza will not be able to adapt to life in Pakistan. There is nothing from their schools or even from the Appellant and Mrs Noor to suggest that they might have any difficulties in transferring to the educational system in Pakistan. I have not been provided with any information about the education system in Pakistan. In any event, the children have not yet reached the age of secondary education. There is nothing to suggest that any of the children are not in good health. I have no evidence to suggest they will not receive safe and effective care in Pakistan. There is no reference to the current lack of any family support in Pakistan in the statements of either the Appellant or Mrs Noor. They do not suggest that the children will not be housed or adequately maintained. It simply appears to be their personal preference that they wish to remain in the United Kingdom.
32. Ms Price did not rely on any other grounds at the hearing. The evidence before me does not suggest there would be any significant obstacles to the Appellant’s integration in to Pakistan so he cannot meet the requirements of paragraph 276ADE(1)(vi). He has spent the bulk of his adult life in Pakistan. Similarly, he cannot rely on Article 8 as it falls to be interpreted outside the Immigration Rules as it is clear that little weight should be given to his private life in the United Kingdom as his immigration status has either been precarious or he has been here unlawfully. There is no evidence of exceptional or compelling circumstances.”
24. The judge clearly found on the overall evidence before him during the hearing that it was not unreasonable to expect the children to relocate to Pakistan, should they choose to relocate with the father, and the judge took into account the further factors in relation to the appellant’s immigration status whereby he has either remained in the United Kingdom on precarious leave or had been here unlawfully.
25. This case was presented on the basis that the appellant could meet the Immigration Rules under the parent route and under which it could not succeed; it was not argued on the basis of exceptional circumstances. Nonetheless the judge did address the relevant factors and consider the matter outside the rules including the interests of the children even on the limited evidence that was put before him. The judge factored into his consideration all of the evidence provided in relation to the children and I am not persuaded that there is an error of law in the circumstances.
26. In relation to ground (v) MA (Pakistan) confirms that the fact that a child who has been here for seven years must be given significant weight when carrying out the proportionality exercise and that there would be a strong expectation that a child’s best interests would be to remain in the UK with his parents as part of the family unit and that must rank as a primary consideration in the proportionality assessment. The decision does not reveal that the judge did not treat the seven year period of residence as a significant factor. Nonetheless, MA (Pakistan) deferred to the very recent decision of the Court of Appeal in MM (Uganda) [2016] EWCA Civ 450 and a critical point is that wider public interest considerations must be taken into account and that is the approach that the judge in fact took at paragraph 32 such that there would be no significant obstacles to the appellant’s integration in Pakistan, not least that his children could, if they wished, accompany him. The judge also records the very limited statements given and it was recorded that both the appellant and his wife were at the hearing but did not give evidence. The appellants were represented by both solicitors and counsel at the hearing and there appears to have been no application for any adjournment. The decision specifically records that the husband and wife were in attendance but the hearing proceeded by way of submissions only [8]. On the evidence which was presented to the judge, and as I have recited above, I am not persuaded, in the circumstances, that the judge could have done more.
Notice of Decision
27. There is no error of law in the decision of First-tier Tribunal Judge Cary and the decision will stand.
No anonymity direction is made.

Signed Helen Rimington Date 6th March 2017

Upper Tribunal Judge Rimington