Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/24514/2015
IA/24517/2015
IA/24519/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 December 2016
On 27 January 2017

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Harjit Singh
First Respondent

Baljit Kaur
Second Respondent

Jasmin Kaur Bhangu
Third Respondent
(ANONYMITY DIRECTION not made)

Representation:
For the Appellant: Mr S Kotas, Senior Home Office Presenting Officer
For the Respondents: Mr J Plowright, Counsel, instructed by HSBS Law Solicitors
DECISION AND REASONS
1. Although this appeal touches on the welfare of a child no concerns for the safety of the respondents. I see no need for, and do not make, an order restricting publication about this case.
2. The appellant, hereinafter "the Secretary of State", appeals with permission given by the Upper Tribunal against a decision of the First-tier Tribunal allowing the appeal of the respondents, hereinafter "the claimants", against a decision of the Secretary of State refusing them leave to remain on human rights grounds on 16 June 2015. The claimants are all citizens of India. The first claimant was born in December 1976 and the second claimant in June 1977. They are married to each other. The third claimant is their daughter, who was born on 16 August 2006 in the United Kingdom.
3. The first claimant says that he entered the United Kingdom in 2001 by train from France. He applied to remain on human rights grounds in April 2011. That application was refused in July 2011 and the decision maintained in September 2011. His appeal to the First-tier Tribunal was dismissed in November 2011 but following various representations including an application for judicial review the Secretary of State agreed to reconsider the circumstances of the claimants.
4. The second claimant arrived in the United Kingdom from the Republic of Ireland in December 2004 with a valid visit visa and appears to have remained without permission. The third claimant was born in the United Kingdom.
5. The judge was not particularly concerned about the earlier decision to dismiss appeals on ostensibly similar facts. Since that hearing more persuasive evidence has been produced to show that the first and second claimants have been living in the United Kingdom at least since 2005 and, at the risk of being trite, the third claimant is significantly older than she was in 2011.
6. The judge considered the Rules and directed himself, correctly, that in order to decide if the appeal should be allowed under the Rules he had to decide if it was "reasonable" for the third claimant to leave the United Kingdom. The judge identified the correct legal test and reminded himself, appropriately, of the decisions in Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 00197 (IAC) and EV (Philippines) & Ors v SSHD [2014] EWCA Civ 874.
7. The judge also had regard to a medical report from a Dr S Ratra dated 18 August 2014 reporting some of the difficulties faced by the third claimant and expressing the view that it would "be a disaster" for the child to be uprooted and removed. The judge said that he gave "appropriate weight to the expert report" but also found it would be "overwhelmingly in the best interests of the third [claimant] to remain in the UK with her parents".
8. He went on to conclude that it was not reasonable to expect the third claimant to leave the United Kingdom and in the circumstances allowed the appeals of all the claimants.
9. The criticism of the judge is not that he failed to direct himself correctly but to his alleged failure to follow those directions. In fairness to the judge, I have an advantage that he did not have. I have been able to read the decision of the Court of Appeal in MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705 promulgated on 7 July 2016 and also The Secretary of State for the Home Department v AJ (Zimbabwe) [2016] EWCA Civ 1012.
10. These decisions make clear that it is too simple to say that a child who has lived in the United Kingdom for seven years should be allowed to remain, and, more significantly, the proper enforcement of immigration control is a weighty matter in an Article 8 or Rules based balancing exercise. There are aggravating features here that were not considered adequately or at all by the First-tier Tribunal. In particular, there is the long period in which both parents have lived in the United Kingdom without permission, which shows a disregard for immigration control and that is something which should not easily overlooked, even for the sake of the child.
11. The First-tier Tribunal Judge was somewhat critical in his findings about Dr Ratra's evidence, which, I have no hesitation in saying, did not justify the conclusions given. It would be surprising if a child who has lived all its life in the United Kingdom would not be unsettled by removal to India but she is a national of that country and has the advantage of loving, educated parents. There was no medical justification offered in the report for the conclusion that it would be "a disaster" for the child to be removed. Medical evidence can justify a range of decisions that would not otherwise be permissible but it does not justify this decision.
12. I have no hesitation in saying that the First-tier Tribunal went beyond the range of permissible possibilities. It did not show in its decision proper regard for important factors in favour of removal and I therefore set aside its decision.
13. Mr Plowright asked to serve additional evidence. He had clearly discussed this before the hearing with Mr Kotas, who was not in any way taken by surprise but, properly, neither of them had indicated that to me before the error of law arguments had been presented. Mr Plowright accepted readily that there had only been one significant change of circumstance since May 2016 but it was, he submitted, an extremely significant change of circumstance, although one suggested in the Decision and Reasons of the First-tier Tribunal. The third claimant is now a British citizen. She became a British citizen on 12 December 2016. This has an immediate impact on the appeal. Clearly the appeal in her case has to be allowed when it is remade. She cannot lawfully be required to leave the United Kingdom and the question of what is reasonable has to be revisited.
14. Mr Kotas referred me to a passage in MA supporting the contention that a child with more than seven years' residence in the United Kingdom should be treated in many ways like a United Kingdom national. He argued that this was an endorsement of the view that a United Kingdom national can be removed. I reject that interpretation of MA. The Court of Appeal was acknowledging the that the rules elevating the rights of a non-British citizen child with seven years' residence to something close to the rights of a British citizen child. It was not diminishing the rights of a British citizen and suggesting that a British citizen could be expected to leave.
15. I am quite satisfied that as a matter of European law a British citizen cannot be required to leave the Union and I understand, although the necessary documents were not produced before me, that there is a policy in force and published by the Secretary of State showing that she would not expect a British citizen to leave the United Kingdom. It follows therefore that the third claimant cannot be removed or expected to leave and, in my judgment, it must follow that the appeals of the first and second claimants are allowed. This is not because of any great merit on their cases. Indeed, if the child was not a consideration then I consider their cases to be hopeless even though they have, no doubt, established themselves in the United Kingdom during the long unlawful residence.
16. However the rights of the child are more than a relevant consideration. They are a primary consideration. Even if I am wrong and I have missed the point in MA, I have to give considerable weight to the rights of a child who is not only entitled to remain in the United Kingdom but who has lived there for all of her life that is now for more than 10 years.
17. Further, it would clearly be unduly harsh to require her to leave the United Kingdom, even if that was lawful, and it would be unduly harsh to expect her to remain without her parents. She cannot be expected to lose daily contact with her parents for the sake of immigration control and although overstaying is to be criticised it is the extent of the parents' misbehaviour. There are no other significant aggravating features.
18. It follows that for the sake of the child the appeals should be allowed.
Notice of Decision
It follows therefore that although I allow the Secretary of State's appeal I substitute the decision allowing the claimants' appeal against the decision of the Secretary of State.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 27 January 2017