Tribunal decisions

The decision

IAC-AH-VP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/24053/2015
IA/24054/2015
IA/24055/2015
IA/24056/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 October 2016
On 15 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS

Between

NARAHARI [R] (FIRST APPELLANT)
NISHA [R] (SECOND APPELLANT)
[N R] (THIRD APPELLANT)
[S R] (FOURTH APPELLANT)
(anonymity direction NOT MADE)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms S Akinbolu, Counsel
For the Respondent: Mr K Norton, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal against the decision of First-tier Tribunal Judge Rose promulgated on 1 February 2016 dismissing the linked appeals of Mr Narahari [R] (date of birth 28 November 1964), Mrs Nisha [R], his wife, (date of birth 13 November 1971), and their two children [NR] (date of birth 24 June 2004) and [SR] (date of birth 29 January 2010).
2. The Appellants' immigration histories are set out in the Respondent's 'reasons for refusal' letter ('RFRL') dated 17 June 2015 and I do not propose to repeat those histories in detail. Suffice to say that the First Appellant entered the United Kingdom in May 2001 as a Tier 4 Student. The Second Appellant entered the United Kingdom in July 2007 accompanied by the Third Appellant, who at that stage would have been a little over 3 years old, with visas as dependants of a Tier 4 Student. The Fourth Appellant was born in the United Kingdom in 2010. The First Appellant applied for successive grants of leave as a student up until 31 October 2007. However, in 2006 on 23 November he was served with an IS151A document on the basis that he was considered to be working in breach of his conditions of leave to enter as a student.
3. It follows that at the time that the Second Appellant and Third Appellant entered the United Kingdom premise of their visas - that the principal family member was a person with valid leave - no longer pertained. Indeed it transpires that when an attempt was made to serve removal papers on the First Appellant and he informed the Immigration Officer of the circumstances of his wife and son's arrival in the United Kingdom, some surprise was expressed by the relevant case worker and removal of the First Appellant did not take place.
4. The Second and Third Appellants did not seek to extend their visas after expiry, and it was not then until 2015 that applications were made by the family to remain in the United Kingdom - essentially on the basis of family and private life established over the period of time that they had been in the UK.
5. The application was refused by way of a RFRL dated 17 June 2015. The Appellants appealed to the Immigration and Asylum Chamber. The essence of the Appellants' case before the First-tier Tribunal is summarised at paragraphs 20 and 21 of the decision of First-tier Tribunal Judge Rose. Reliance was placed on Article 8 of the European Convention on Human Rights and the Judge observed this at paragraph 21:
"As noted above the Appellants did not maintain that they met the requirements of Appendix FM. They relied on paragraph 276ADE(1)(iv) and (vi), on the basis that it would not be reasonable to expect the third Appellant to leave the UK and there would be very significant obstacles to the integration by the first and second Appellants into Nepal.".
6. Before this Tribunal it is only the first of those arguments that is now pursued - that is to say in respect of the reasonableness of expecting the Third Appellant to leave the UK, and there is no live argument or issue before me in respect of 'significant obstacles' for the First and Second Appellant in terms of reintegration to the country of their nationality.
7. The First-tier Tribunal Judge dismissed the Appellants' appeals for reasons set out his Decision and Reasons. The Appellants sought permission to appeal to the Upper Tribunal which was initially refused by First-tier Tribunal Judge Woodcraft on 12 July 2016 but subsequently granted by Upper Tribunal Judge McWilliam on 8 September 2016.
8. The focus of challenge relates to the Third Appellant and is expressed in this way in the grant of permission to appeal by Judge McWilliam "It is arguable that the judge did not adequately reason the decision that it would be reasonable (Section 117B(6)) for the eldest child to return to Nepal with his parents". In fact as I have already indicated the particular focus before the First-tier Tribunal was not such much on Section 117B(6) but on paragraph 276ADE(1)(iv), but as is acknowledged by both representatives before me, and was identified by Judge Rose with reference to the case of AM (Section 117B) Malawi [2015] UKUT 260 (IAC), both Section 117B(6) and 276ADE(1)(iv) raise the same question which need only be answered once, (see paragraph 32 of the decision of the First-tier Tribunal).
9. The evidence before the First-tier Tribunal that related to the circumstances of the Third Appellant consisted of a number of documents in relation to his educational progress which were substantially similar or the same as the documents that had been submitted with the application, together with some amplification of his circumstances provided in the witness statement of the First Appellant (signed on 19 January 2016). The circumstances of the Third Appellant are in particular referenced at paragraphs 11, 12 and 16 of that witness statement. In essence, emphasis was placed on the length of time that the Third Appellant had been in the United Kingdom and the progress that he had made in the education system here wherein he had also built up friendships. The remainder of the witness statement sought to address the circumstances of the other family members and also sought to address matters raised in the Respondent's RFRL in respect of the issue of integration in Nepal which, as I have said, is no longer a live issue before me.
10. The First-tier Tribunal Judge, in my judgment, adequately set out the background to the case and the evidence in his Decision and Reasons, and also, in my judgment, traversed such evidence in his findings - not just in respect of the Appellants generally but specifically in respect of both children, and necessarily therefore the Third Appellant. In this context it is appropriate that I say a little bit more about the structure of the decision because some aspects of the challenge that is now pursued seek to impugn elements of that structure.
11. As I have noted the Judge identified the key issues at paragraphs 20 and 21. At paragraph 22 he then identified the length of time that the First Appellant had been living in the United Kingdom and also the slightly shorter length of time that the Second Appellant had been present in the United Kingdom. Over the following paragraphs he focused primarily - although given the inevitable interlinking of the family unit not exclusively - upon the circumstances of the First and Second Appellants. At paragraph 23, having considered what had been said on their behalf, the Judge concluded that he had no reason to find it probable that the First Appellant would be unable to find employment in Nepal, and similarly with regard to the Second Appellant there was no need to believe that she would be unable to work in Nepal as a teacher as she had done previously. At paragraph 24 the Judge identified that there were still close family members of each of the First and Second Appellants living in Nepal. At paragraphs 25 and 26 the Judge considered the particular circumstances of a relative by marriage of the Second Appellant who had been responsible for accommodating and providing a degree of support to the Second Appellant prior to her coming to the United Kingdom when the First Appellant had already been in the United Kingdom. That relative had indicated in support of the Second Appellant's earlier appeal in respect of entry clearance, a willingness to continue to support the Second Appellant upon her return to Nepal - it being said at that time that she was only coming to the United Kingdom for a limited period of time pending the First Appellant's recovery from what appears to have been minor surgery on his ear. The Judge concluded that there was no reason to believe that the financial position or the relationship had deteriorated, or that the relative would not continue to be prepared to provide support to the Second Appellant and her family if they were now to return to Nepal.
12. At paragraphs 27 and 28 the Judge considered the question of a recent earthquake in Nepal and concluded that this in itself did not provide any obstacle to return, or to seeking assistance in establishing themselves through relatives whose properties had not been destroyed in the earthquake.
13. Having considered all of these matters - which as I have indicated are in effect a traverse of the matters raised by the Appellants as potential obstacles to return and reintegration - the Judge concluded that he was not satisfied that there were significant obstacles to the integration into Nepal of the First and Second Appellants.
14. The Judge then says this at paragraph 30 "Accordingly I consider the requirements of paragraph 276ADE(1)(iv) of the Rules in relation to the Third Appellant on that basis". It seems to me absolutely clear that what the Judge means by 'on that basis' is that the Third Appellant's parents would be able to reintegrate into Nepal. It seems to me that that was a perfectly legitimate approach to take.
15. The Judge then indeed went on to consider the circumstances of the Third Appellant. At paragraph 31 he identified the age that the Appellant had been when he arrived in the United Kingdom, the length of time that he had been living in the United Kingdom; at paragraph 32 the Judge considered some relevant case law, as indeed he did at paragraphs 33 and 34 observing the observations in AM (Malawi) in respect of interruption to education being at times no more significant than that faced by any child forced to move from one country to another by virtue of the careers of their parents. At paragraph 35 the Judge had regard to the Supreme Court case of Zoumbas and then at paragraph 36 he considered what the First Appellant had said about the Third Appellant's Nepalese language skills. The Judge did not accept all that had been said by the First Appellant in this regard, and concluded that it was probable that the Third Appellant has some knowledge of both Nepalese language and Nepalese culture, and with the help of his parents would be able to build on that knowledge so as to be able to integrate and participate fully in his schooling in Nepal. It was noted that the Third Appellant's school report did not indicate any particular educational difficulties or requirements.
16. The Judge took this analysis forward to paragraph 37 and observed that it was to be expected that the Third Appellant if required to leave the United Kingdom would return to Nepal with his parents and younger brother and said this "There will inevitably be some disruption to his education, since he will have to adjust to different education system in a different country and a different language. However, he will be able to continue to live with his parents and, as I have found, they can reasonably be expected to be able to work in Nepal and, if necessary, to be able to obtain some financial support from family members. He may also have the opportunity to develop relationships with his grandparents and uncles and aunts living in Nepal. No health issues have been raised".
17. The Judge at paragraph 38 considered the question of the Third Appellant's own views. A complaint had been made by the Appellants' representative that the Respondent did not canvas these or otherwise take them into account. The Judge observed comments made by the First Appellant as to the Third Appellant's observations in this regard following a visit from Immigration Officer, and explicitly stated that he took into account that the Third Appellant would prefer to continue living in the UK.
18. The Judge reached his conclusion in respect of the Third Appellant under the Immigration Rules at paragraph 39 in these terms "I am satisfied that the third Appellant can be removed to Nepal in the care of his parents without serious detriment to his wellbeing. In the light of the matters to which I have referred I find that it would be reasonable to expect him to leave the UK".
19. Thereafter the Judge went on to consider the cases of the Appellants under Article 8 - from paragraph 40 onwards. At paragraph 44 in respect of Section 117B(6) the Judge reminded himself of the finding he made in respect of the Third Appellant under 276ADE(1)(iv), and, no doubt mindful of his earlier direction in respect of AM (Malawi), found it was unnecessary to go into that question a second time but observed again that it would be reasonable to expect the Third Appellant to leave the UK.
20. At paragraph 49 the Judge concluded that he did not consider there were any compelling circumstances to warrant a grant of leave to remain outside the requirements of the Rules and found that the decision to refuse the Appellants' applications did not constitute a disproportionate interference with the exercise of their rights under Article 8.
21. The Appellants raised two grounds of challenge in the application for permission to appeal submitted to the Upper Tribunal and considered by Judge McWilliam in granting permission to appeal. There is an introductory paragraph to the grounds of challenge which is in these terms:
"First-tier Tribunal Judge Rose dismissed the appeal of the First Appellant, his wife and his two children by first deciding that the parents did not qualify under paragraph 276ADE and 'on that basis' )para 30) that it would be reasonable for the [Third Appellant] to go to Nepal 'in the care of his parents without serious detriment to his welling' (para 39)".
22. I pause to note that in my judgment it is not appropriate to make a direct connection between the findings in respect of the parents and the suggestion that the third Appellant lost his appeal "on that basis". There is an ambiguity about that paragraph which might be taken to suggest that the drafter was of the view that the Third Appellant had lost his case simply because his parents had lost their cases. If that was the intention of the drafter - as I say it is ambiguous rather than clear that was the intention of the drafter - it seems to me that that was inappropriate and not justified by the careful analysis of the decision in the round. Be that as it may it is clear that the introductory paragraph is raising some issue in respect of the order in which the Judge approached the consideration of the appeal; this then finds its force in the way in which the first ground of challenge has been drafted. Indeed the first ground of challenge is drafted under the heading "Failure to determine the best interest first (per NA (Pakistan))". The grounds go on in these terms "The best interest of children must be considered first, and without reference to the immigration status of either parent: (EV Philippines v Secretary of State for the Home Department [2014 EWCA Civ 874 at para 33 per Christopher Clark LJ (with whom Jackson LJ agreed); ZH Tanzania v Secretary of State for the Home Department [2011] 2 AC 185 per Hale B. at 33; best interest of a child primary consideration, and "must be considered first"." The grounds continue "The argument that 'reasonableness' includes consideration of the conduct and immigration history of the parent was rejected most recently in MA Pakistan v SSHD [2016] EWCA Civ 705 at 36 per Elias LJ"; then "By not considering the best interest of the children first it is respectfully submitted that it is arguable that the First-tier Tribunal Judge erred in law".
23. Looking at those paragraphs, the following preliminary observations may be made. The first paragraph, citing EV (Philippines) and ZH (Tanzania) is no more than an assertion of principle. The second paragraph referring to MA (Pakistan) does not, as Ms Akinbolu very properly acknowledges, represent a correct statement of the law given that the observations of Lord Justice Elias were premised by his observation that they were being made in a vacuum, as it were, "free from authority" (see paragraph 36 of MA (Pakistan)), and that he acknowledged in due course that he was not free from authority and did not think it appropriate to depart from what was said in MM (Uganda). In any event in this context it seems to me that the ground as drafted suffers from a lack of focus on the distinction between 'best interests' and the 'reasonableness' test under 276ADE(1)(iv) or section 117B(6). 'Best interests' may inform, and must be taken into account in, the evaluation of 'reasonableness', but they are not the same thing and they are not determinative one way or the other of 'reasonableness'.
24. The final part of the Ground referring to the supposed failure in not considering the best interests of the children first, in my judgment, is a reference to the order in which the First-tier Tribunal Judge addressed the issues in the appeal. What the ground does not in terms do is to submit that the First-tier Tribunal Judge failed to have regard to the best interests of the children: although Ms Akinbolu has sought to make such a contention, or develop such a point, during the course of submissions it clearly is not rooted in the Ground as drafted, or, therefore, the Grounds upon which permission to appeal was given.
25. Insofar as 'best interests' are concerned it seems to be absolutely clear that the First-tier Tribunal Judge had in mind the best interests of both children, and necessarily therefore the Third Appellant. Most of the case that was advanced before the First-tier Tribunal Judge, and to which he refers specifically, was based on case law that had very detailed consideration to the concept of best interests. It is plain that the Judge had regard to all such matters as were being advanced on behalf of the child Appellants with regard to their circumstances in the UK and the potential detriment to them if they were required to leave the United Kingdom. The idea that the circumstances of the children were anything other than at the forefront of the consideration of those paragraphs in the Decision where the Judge considered the children seems to me to be unfounded. This indeed throws the focus back on whether there was anything wrong with the order in which the First-tier Tribunal Judge approached the issues.
26. In this regard the suggestion in the grounds seems to be that essentially that it was incumbent upon the First-tier Tribunal Judge to reach a conclusion in respect of the children before considering the adults. I do not find that to be the case. It seems to me that the parents' position is inextricably linked to those of the children and inextricably linked to the children's welfare and best interests. In particular in the context of considering the circumstances upon return to Nepal, whilst I entirely accept that an evaluation of the best interests of a child is exactly that - i.e. an evaluation of the best interest of the child - when then considering the wider question of reasonableness in immigration terms it is entirely artificial to consider only the circumstances of the child as it were as a sole independent unit and not to have regard to the absolute reality that the child would be returning in the company of a parent or parents. Indeed this seems to be the very issue that was the subject of consideration at the end of the case of Zoumbas. At paragraph 25 of that case the Supreme Court observed as follows:
"Finally we see no substance in the criticism that the assessment of the children's best interest was flawed because it assumed that their parents would be removed to the Republic of Congo. It must be recalled that the decision maker began by stating the conclusion and then set out the reasoning. It was legitimate for the decision maker to ask herself first whether it would have been proportionate to remove the parents if they had no children and then in considering the best interest of the children in the proportionality exercise ask whether their wellbeing altered that provisional balance. ? The assessment of the children's best interest must be made in the context of the decision as a whole".
27. In the light of that in my judgment it was entirely appropriate for the First-tier Tribunal Judge to consider whether the parents could establish a basis to remain in the United Kingdom first. After all, if the parents could establish such a basis then it would likely lead to all of the Appellants succeeding without a need to go into any great analysis in respect of the particular circumstances of the Third Appellant. However, having found on the facts of this case that the First and Second Appellants could not establish a basis to remain in their own right, it seems to me that when looking at the 'reasonableness' question in respect of the Third Appellant it was entirely appropriate to look at it on the premise that in the event of removal the Third Appellant would be in the c company of his parents.
28. I am of course aware of the dichotomy between the cases MA (Pakistan) and MM (Uganda), but this really relates to the appropriateness or otherwise of offsetting the poor immigration history against the private life of a child. In essence in considering Section 117B(6) the case of MM considers that it is appropriate that an 'in the round' consideration be given not only to the particular circumstances of the child but also any countervailing factors including the adverse immigration history of the parents; whereas in MA Lord Justice Elias was of the view that the wording of Section 117B(6) was such that it excluded a consideration of any adverse immigration history on the part of the parents and that the focus should only be on the reasonableness of the child, with there being no validity in looking at extraneous factors in relation to family members in the overall balancing exercise. That is a dichotomy that may in due course be resolved, but it seems to me that it does not have any particular impact on the circumstances of this case because it is not the circumstance here that First-tier Tribunal Judge Rose sought to offset the private life of the Third Appellant against the adverse immigration history of the parents. Whilst the Judge took into account that the parents were not entitled to remain in the United Kingdom, he did not in evaluating 'reasonableness' in respect of the Third Appellant treat it, or indeed make any reference to the factor of overstaying for a considerable period, as an adverse factor that weighed heavily in the balance. Accordingly the 'territory' to which the MA / MM dichotomy relates is not one material to the outcome of this particular appeal.
29. In all those circumstances it seems to me that best interests were taken into account. There is no express challenge to suggest that best interests were not factored into the overall balance, and insofar as the grounds focus upon the order of the assessment I find them to be essentially misconceived. I reject the first basis of challenge.
30. The second ground of challenge is that the First-tier Tribunal Judge applied an "elevated threshold". This ground is essentially premised upon the use of the words "without serious detriment" which appear at paragraph 39 (which I have already quoted above). These words find their way into the decision of Judge Rose via the case of Zoumbas: see paragraph 35 of the Decision of Judge Rose citing paragraph 24 of Zoumbas.
31. It seems to me that all the First-tier Tribunal Judge has done is to borrow from the speeches of their Lordships in the Supreme Court in Zoumbas to inform his evaluation on the facts of this particular case. When one looks at paragraph 39 carefully it seems to me that the Judge is not proceeding on the basis that 'serious detriment' is the test'. The Judge goes on almost immediately to say in terms at paragraph 39 "In light of the matters to which I have referred, I find that it would be reasonable to expect [the Third Appellant] to leave the United Kingdom". The reference to 'the matters to which the judge had referred', in my judgment is not a simple reference only to the issue of 'serious detriment', but is a reference back to all those matters in the preceding paragraphs wherein he is considering the matters advanced on behalf of the Third Appellant in the context of paragraph 276ADE(1)(iv) and setting out his analysis by traversing, it seems to me, each and every point raised on behalf of the Appellants. I do not read into paragraph 39 an elevation of the test, and am reassured by the fact that the Judge echoes the exact wording of the proper test both when directing himself at paragraph 21 at the beginning of his considerations and in the conclusion at paragraph 39.
32. In such circumstances I find that there is no substance in the second ground of challenge.
33. For these reasons I reject the challenge to the decision of the First-tier Tribunal Judge and uphold the decision. There is no error of law and the decision stands.

Notice of Decision
34. The decision of the First-tier Tribunal contained no errors of law and stands.
35. The Appellants' appeals remain dismissed.
36. No anonymity direction is sought or made.

The above represents a corrected transcript of ex tempore reasons given at the conclusion of the hearing.

Signed Date: 14 November 2016
Deputy Upper Tribunal Judge I A Lewis