Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/25392/2015
ia/25396/2015
IA/25625/2015
ia/25633/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20th March 2017
On 12th April 2017

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

mr parmjit singh
mrs meena rani
mr dilpreet singh
miss pushpinder kaur
(aNONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R K Rai, Counsel instructed by H S Law Solicitors
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS

1. The appellants are nationals of India born on 5th November 1963, 14th September 1970, 7th July 1996 and 27th July 1998 respectively. The first two appellants are the parents and the third and fourth appellants are their children. Their appeal is against a decision of the respondent dated 30th June 2015 refusing their applications for leave to remain in the UK on the basis of family and private life. On the same date a separate decision was made in the case of the third appellant, who was under the age of 18 years at the date of application but over the age of 18 years at the date of decision. There was a separate reasons decision relating to him also dated 30th June. Those decisions were appealed together.
2. In the reasons for refusal letter the respondent did not accept that there will be very significant obstacles to the first appellant’s integration into India and that he would be removed with his partner and children as a family unit to India. The respondent noted that the fourth appellant was not British but had lived in the UK for seven consecutive years and as with regards the third and fourth appellant it was not considered unreasonable to expect the children to leave the UK as they would be with their parents and continue a family unit and continue their private life in India.
3. In the refusal letter for the third appellant, appellant Dilpreet the Secretary of State considered there were no very significant obstacles to his reintegration into India and he would be returning there with his parents and sister.
4. First-tier Tribunal Judge Mailer dismissed the appeal. The appeal was presented by Mr Rai at the First-tier Tribunal stage and he accepted that there were difficulties with the family life route under Appendix FM (this is recorded at paragraph 64 of Judge Mailer’s determination). Mr Rai submitted that the focus of the appeal was in fact on the children.
5. The chronology produced contended that the first appellant entered in the UK on 15th August 2002 and the wife and two children appellants entered the UK on 28th May 2007 with leave as visitors; they remained as overstayers. The submission was that both children had been in the UK for over seven years and both were under 18 at the date of the application. There was also a submission with respect to the third appellant Dilpreet that there was no reference to paragraph 276ADE(1)(iv) which should have applied as when the application was made Dilpreet the third appellant had been here for seven years.
6. As indicated Judge Mailer dismissed the appeal. The application for permission to appeal set out the following context noting that at the time of the application for leave to remain the third appellant was 17 years and the fourth appellant was 15 years but at the time the decision was made, the appellants were 18 years and 16 years respectively and they had now been in the UK for nine years. The third appellant had gone through the schooling system in the UK and the fourth appellant was still in the schooling system. The judge found that the first and second appellant were in fact married and in a genuine and subsisting marriage (which was disputed by the Secretary of State) and that all of the appellants lived in a family unit.
7. The grounds for permission to appeal set out the following:
Ground (i) the First-tier Tribunal Judge materially erred as a matter of law by failing to undertake a proper balancing exercise between the best interest considerations of the children and the public interest considerations. Following MA (Pakistan) v SSSHD [2016] EWCA Civ 705 once seven years in the UK by a child is established then strong reasons must be given to why leave is refused and [the considerations} must be given significant weight in the proportionality assessment. The judge failed to identify what weight if any was put on the seven years the children had been in the UK and the level entrenchment they may have in the UK in the balancing exercise. The judge simply trumped the significant considerations by the actions of the parents.
Ground (ii) the judge failed to properly carry out the best interests consideration exercised on the children. He concludes that the best interests of the children was to be with their parents whether it is in the UK or in India but failed to explain why.
Both children were respectively 18 and 16 but it was not the case that they were dependent on their parents but young adults whose best interests may not necessarily lie with their parents.
Ground (iii) the judge materially erred as a matter of law by applying the reasonableness test as including public interest considerations bearing upon the parents. It was contended that the reasonableness test should not include the public consideration.
8. Permission to appeal was refused initially by First-tier Tribunal Judge Colyer who stated
“I have considered the decision and reasons. In a very detailed determination the Tribunal Judge gave appropriate and adequate reasons for the findings. A clear analysis was made by the Tribunal Judge in respect of the evidence before the Tribunal. The judge had appropriately explained why the appellants do not satisfy the Immigration Rules. It is clear that the judge was aware of the appellants’ circumstances”.
9. Upper Tribunal Judge Lindsley, however, considered that it was arguable that the First-tier Tribunal Judge should have considered whether it was reasonable to expect the third and fourth appellants to leave the UK in the alternative by considering given their current ages they remain without their parents. This approach would arguably have led to the arguments of public interest attributing to the overstay of their parents not weighing against them and the seven years plus residence that a child at the time of the application being given significant weight leading to a conclusion that arguably they were entitled to succeed under paragraph 276ADE(1)(iv) of the Immigration Rules.
10. At the hearing before me Mr Rai produced a skeleton argument and the case of PD and Others (Article 8 conjoined family claims) Sri Lanka [2016] UKUT 00108 (IAC). In particular he relied on the reference at paragraph 26(3) which states that
“Another possible scenario is that the appeals of the first two appellants are dismissed and that of the third appellant allowed with the parents returning to Sri Lanka and the third appellant continuing to live and study in the United Kingdom”.
11. Mr Rai argued that it should have been obvious to the judge that this should have applied and he relied on his written grounds of appeal and his skeleton argument. It was always the case that (a) the focus of the appeal rested on the appellants 3 and 4 and it was in their best interests for them to remain in the UK; and (b) that the first two appellants have a genuine and subsisting relationship with their parents did not suggest that the family unity ought to be maintained if it was decided that the third and fourth appellants should be granted leave and, further, at the time of the application the children were older and it was contended that the older child becomes the less the impact of their parents overstaying and considering reasonableness in relation to paragraph 276ADE. Further Section 117B(6) the focus was on the public interest in the context of someone who was being removed and who has a subsisting parental relationship with a child and not reasonable to remove the child.
12. Mr Bramble resisted this application on the basis that it had never been contended that the family relationship should in any way be severed and that the judge had recorded this at paragraph 119 of his decision. The judge had given adequate and appropriate reasons for his dismissal and had explained adequately why the appellants did not meet the requirements of the Rules.
Conclusions
13. In response to ground (i) the judge clearly undertook a careful balancing exercise setting out his findings throughout the decision and in paragraphs [88] to [125] and particularly in relation to the third and fourth appellant. The judge considered all of the relevant facts and directed himself appropriately. He did not simply trump the children’s interests with the misconduct of the parents as can be seen from reading the decision as a whole. He applied Section 117 (6) of the Nationality Immigration and Asylum Act 2002 and at [103] specifically recorded
‘In applying the reasonableness test, the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise. Lord Justice Elias referred to published guidance in August 2015 and the IDIs titled “Family Life (As a Partner or Parent) and Private Life: Ten Year Routes” in which it was expressly stated that once the seven years’ residence requirement is satisfied, there needs to be “strong reasons” for refusing leave.”
14. Specifically at paragraph 114 the judge notes the third and fourth appellants are not to be blamed of the conduct of their parents. They had remained unlawfully for a very considerable period but nonetheless at paragraph 117 the judge correctly considered the question of whether it was reasonable to expect the child to leave the UK and adopted the approach in line with that of Lord Justice Elias in MA (Pakistan). The judge had regard to their age, the length of time they had been in the UK and how long they had been educated in both countries.
15. The judge took into account at [118] of
‘the ages, the length of time they have been in the UK, how long they have been educated in both countries, their relationship to India and how renewable their connections with India may be. I have also considered any linguistic, medical and other difficulties, including cultural difficulties affecting their re-adapting to life in India’
and further at [120] he identified that the parents had overstayed since 2007 and found at [122]
‘however, there is no contention that on their return to India as a family, they would not be offered support and assistance for the period that it takes them to re-integrate into the community. Nor is there any evidence that the first and second appellants would not be able to obtain employment. Nor is there any evidence that the third and fourth appellants would be unable to be admitted into a school or college consistent with their current educational achievements and need’.
16. The judge ultimately concluded, and in line with Huang v SSHD [2007] UKHL 11 that the decision of the respondent did not constitute a disproportionate decision finding
‘that having considered the circumstances as a whole including the children’s best interests as well as the other public interest considerations that it is not unreasonable to expect the third and fourth appellants to accompany their parents to India’
17. Contrary to ground (ii) the judge clearly set out the best interests of the children. He reviewed all of the evidence carefully and identified at [113]
‘When assessing the best interests of the third and fourth appellants as a primary consideration, it is evident from their point of view alone, that it would be in their best interests to remain in the UK with their parents. They will be adversely affected for a period on return when they seek to re-adapt to a culture and way of life different to that which they have become accustomed’.
18. First-tier Tribunal Judge Mailer then concluded at [119] after further assessment
“it is in the best interests of the third and fourth appellants to remain with their parents whether in the UK or abroad. It has not been contended that the family relationship should in any way be severed”.
19. But what appears to being argued is that the judge was not required to do so in relation to the third appellant because he was no longer a child. I am rather surprised by the contention at ground (ii), that it was not the case that the children were dependent on their parents but were young adults and should be treated separately. That runs specifically counter to the grounds as submitted to the First-tier Tribunal. It was not put that their best interests would be to be served to be severed from their parents.
20. Ground (ii) appears to contain some contradiction in that one the one hand it is argued that the First-tier Tribunal Judge ‘fails to carry out a best interest consideration’ (sic) but on the other hand ‘it is not the case that they are children dependent upon their parents’ (sic).
21. At the hearing before me, I referred Mr Rai to the grounds of appeal to the First-tier Tribunal as they were settled in relation to the first, second and fourth appellant and also the third appellant. The grounds submitted to the First-tier Tribunal were submitted on the basis that the first two appellants’ children were
“living with their parents in the United Kingdom as a family unit. Both of these children are studying in this country and have made friends in the schools they attend. The grounds in respect of the first two appellants and the third appellant were that they had established family, social and cultural ties in the UK and lost those ties in India”.
22. The grounds of appeal in relation to Dilpreet Singh state
“the Secretary of State has erred in penalising the appellants’ children who are not capable in making any decisions”
and further
“they have been living in the UK continuously with their parents for more than seven years and the Secretary of State had not applied reasonableness in order to reach the conclusion’.
23. To emphasise the point that the appeal was made on the basis of the children being dependent on the parents, and that they should be treated as a family unit, at paragraph 11 of the first appellant’s statement read
“Moreover I have sole responsibility of my son Dilpreet Singh and my daughter Miss Pushpinder Kaur. I am responsible for making all decisions of their wellbeing and I am not only supporting them financially but also morally and emotionally. Thus I am taking and continue to take an active role in my son Dilpreet and daughter Pushpinder’s upbringing”
and further
“I disagree with the SSHD’s decision that the children’s best interests are to be removed with their parents and remain a family unit. My two children Dilpreet Singh ... and daughter Miss Pushpinder Kaur ... are living with me and my ................. in the United Kingdom as a single family unit”.
24. Dilpreet Singh’s (the third appellants’) statement at paragraph 8 stated
“sending me back to India will be an arbitrary interference with my established private life and arguably my family life and this interference is sufficiency serious to engage Article 8 right of the ECHR” …’I strongly believe that the SSHD has not taken into account me and my sister Pushpinder Kaur’s best interests’.
25. In other words it was submitted that the family was one unit and that they should not be separated and thus the parents should not be removed.
26. In my view the appeal was predicated on the basis that the family unit was to be considered as a sine qua non and the children’s best interests were at the forefront. It cannot be argued at a later stage that the judge should have considered the decision alternatively because that is specifically not how the appeal was put. To argue subsequently that the children were in fact young adults whose best interests may not necessarily lie with their parents was the diametric opposite of what was argued before the First-tier Tribunal Judge as can be seen from the statements above. Indeed, because of the way the appeal was presented, it is arguable that the judge would have been criticised had he done that. Indeed as the judge states at [83[
“I find on the basis of the evidence presented including the documentary evidence that the appellants including the parents have all been living together as a family since the end of May 2007”.
27. In respect of the fourth appellant she was indeed not even 18 by the date of the decision promulgated by Judge Mailer.
28. Further the judge recorded at paragraph 28 that in his oral evidence the first appellant confirmed that he had a
“parental relationship” with his children. They were under the age of 18 at the date of application. They have been living in the UK continuously for over seven years preceding the date of the application. He claims to have “sole responsibility for the children”.
29. In relation to the objection in the light of PD, the judge specifically looked at the appeal of Dilpreet Singh in the context of paragraph 276ADE(1)(iv) and specifically as to whether it would be reasonable to expect him to leave the UK. The judge also considered whether it would be reasonable to expect the sister to leave. Clearly the crux was whether it was reasonable to expect the third and fourth appellants to leave the United Kingdom. The judge made various findings (reminding himself of the evidence regarding Dilpreet at [89] to [92]) and noting at [96] that the appellants had lived in the UK and in particular the third appellant lived in the UK for a continuous period of seven years or more and carefully recorded that their progress and achievements in schools. The judge clearly made separate and joint findings in respect of the third and fourth appellants throughout the determination. He identified that they had spent more than half their lives in India and that there were no linguistic barriers [112] –[113] to their return. He also reminded himself that they were not to be blamed for the conduct of the parents [114].
30. In the light of my reasoning above I find that ground (ii) is not made out.
31. In relation to ground (iii) there can be no contention that the judge materially erred as a matter of law by applying the reasonableness test as including wider considerations. That is exactly what is required by MA (Pakistan). There is no uncertainty as to whether reasonableness should include the public interest criteria and the fact that this may be subject to further Supreme Court scrutiny does not undermine the law as at the date this decision was made.
32. As stated by Elias LJ at [45] in MA (Pakistan)
‘However, the approach I favour is inconsistent with the very recent decision of the Court of Appeal in MM (Uganda) where the court came down firmly in favour of the approach urged upon us by Ms Giovannetti, and I do not think that we ought to depart from it. In my judgment, if the court should have regard to the conduct of the applicant and any other matters relevant to the public interest when applying the "unduly harsh" concept under section 117C(5), so should it when considering the question of reasonableness under section 117B(6)’.
33. As I have indicated above the appeal was predicated on the basis that the children were to be considered with their parents. It is also the case that Section 117 and the various considerations thereunder apply to all the appellants including the children.
34. First-tier Tribunal Judge Mailer wrote a careful, detailed and reasoned determination on the facts and appeal grounds as presented to him in the First-tier Tribunal.
35. There is no error of law and the decision shall stand.

Signed Date 7th April 2017

Upper Tribunal Judge Rimington

Judge Rimington