Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/25032/2015
IA/25034/2015
IA/25039/2015
IA/25041/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30 November 2016
On 24 January 2017

Before

LORD MATTHEWS, SITTING AS AN UPPER TRIBUNAL JUDGE
DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

THE SECRETARY OF STATE FOR the HOME DEPARTMENT
Appellant
and

RAM SINGH GILL (1st appellant)
BALJEET KAUR KAUR (2nd appellant)
GURWINDER KAUR KAUR (3rd appellant)
JASKARAN SINGH (4th appellant)
(ANONYMITY DIRECTION NOT MADE)
Respondents

Representation:
For the Appellant: Ms A Fijiwala, Home Office Presenting Officer
For the Respondents: Mr D Balroop, Malik Law Chambers Solicitors (Southall)

DECISION AND REASONS

1. This is an appeal by the Secretary of State (hereinafter referred to as the respondent) against a determination of First-tier Tribunal Judge Whitcombe, promulgated on 29 June 2016, allowing an appeal against a decision of 26 June 2015 refusing the appellants (who are the respondents in the Upper Tribunal) leave to remain in the United Kingdom based on their private and family lives. The first appellant, born on 4 April 1960, entered the UK illegally and clandestinely on 25 February 2003 and was served with a form IS 151A that day. The second appellant was born on 10 February 1966. She is the wife of the first appellant and they are the parents of the third and fourth appellants, born on 23 August 1998 and 30 March 1993, respectively. They were all born in India and are citizens of that country. The second, third and fourth appellants entered the UK as visitors on 24 March 2007 and have overstayed. Cutting a long story short, the First-tier Tribunal found that the third appellant satisfied the residence requirements of paragraph 276ADE (1)(iv) in that she was under 18, that she had lived in the UK for at least 7 years and that it would not be reasonable to expect her to leave the UK. Under reference to Sections 117B(6) and 117D(1)(b) of the Nationality, Immigration and Asylum Act 2002, the Judge found that the public interest did not require the removal of the first and second appellants. Their appeal was allowed on human rights grounds as was that of the fourth appellant.

2. The main thrust of the respondent's arguments before us was that the Judge had wrongly considered the best interests of the third appellant in isolation in considering the question of reasonableness. No consideration was given to the family as a whole or to their immigration history. The submissions in reply came to be that when the determination was looked at as a whole there was no error. A further argument on behalf of the respondent was that since the third named appellant had not been in the UK for 7 years as at the date of the application (7 September 2012) , the Judge should not have allowed her appeal under the rules. This was not a matter raised earlier and it does not figure in the grant of permission to appeal. We propose to say no more about it hereafter.

3. Having considered the principal submissions, we are satisfied that there is an error of law. The First-tier Tribunal appears to have been conflated the best interests of the appellant with reasonableness and did not in fact conduct an appropriate balancing exercise. Reference is made throughout the determination to the immigration history but it is not entirely clear that that was something which weighed with the Immigration Judge when deciding the question of reasonableness, as it ought to have been. See MA Pakistan [2016] EWCA Civ 705.

4. That being so the determination will require to be set aside since we take the view that the error was a material one.

5. In view of the fact that the third appellant, in respect of whom the whole appeal appears to hinge, on one view of it at least, is now over age 18, it appears to us that the family dynamic may have changed considerably and further evidence about that will be required so that the whole family situation can be considered anew.

6. In these circumstances we consider that the best course will be to remit to the First-tier Tribunal in order that the matter can be revisited and the application reheard. Having said that, the basic findings of fact as to the past do not appear to be in issue and they will be maintained.

Notice of Decision

7. The decision of the First-tier Tribunal contained an error of law such that it must be set aside and remade. So the respondent's appeal is allowed. The appeal is remitted to the First-tier Tribunal at the centre where the appeal was previously heard (Judge Whitcombe not compatible). The basic findings of fact as to the past made by Judge Whitcombe are not controversial and will be preserved.

8. No anonymity direction is made.

LORD MATTHEWS
Sitting as an Upper Tribunal Judge
(Immigration and Asylum Chamber)

Date: 24 January 2017