Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/26079/2015
IA/26078/2015, IA/26075/2015
IA/26077/2015, IA/26076/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reason Promulgated
On 9 January 2018
On 19 January 2018

Before

Deputy Upper Tribunal Judge Pickup

Between

MS
NMS
NS
MS2
AS
[Anonymity direction made]
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellants: Mr S Karim, instructed by Cranbrook Solicitors
For the respondent: Mr P Nath, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is the appellants' appeal against the decision of First-tier Tribunal Judge Young promulgated 18.11.16, dismissing their linked appeals against the decisions of the Secretary of State, dated 8.7.15, to refuse their applications for LTR on Human Rights grounds.
2. The Judge heard the appeal on 25.10.16.
3. Permission to appeal was refused by First-tier Tribunal Judge Baker on 25.5.17. However, when the application was renewed to the Upper Tribunal, Upper Tribunal Judge Blum granted permission on 31.10.17.
4. Thus the matter came before me on 9.1.18 as an appeal in the Upper Tribunal.
Error of Law
5. In the first instance I have to determine whether or not there was an error of law in the making of the decision of the First-tier Tribunal such that the decision of Judge Young should be set aside.
6. In granted permission to appeal, Judge Blum noted that nowhere in the decision does the First-tier Tribunal Judge specifically address the best interests of the two child appellants. Whilst the factors considered in the proportionality assessment are also relevant to assessing the best interests of the children, the requirement under Section 55 of the Borders, Citizenship and Immigration Act 2009 is for an assessment distinct to the proportionality balancing exercise. Judge Blum considered it arguable that this failure rendered the proportionality assessment unsafe.
7. Judge Blum also found it arguable that in attaching little weight to the private lives of the two children, the judge failed to consider that as children they had little control over their precarious immigration status and should not be blamed for the conduct of their parents, following Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 and Kaur (children's best interests/public interest interface) [2017] UKUT 00014 (IAC).
8. The Rule 24 reply, dated 27.11.17, submitted that the First-tier Tribunal directed itself appropriately and that at [130] and [131] the judge considered the position of each of the children and that the best interests were considered, and that adequate findings were given for concluding that the child appellants' return was reasonable, notwithstanding the weight accorded at [128] to residence.
9. The difficulty arises from the failure of the First-tier Tribunal Judge to refer to Section 55 of the Borders, Citizenship and Immigration Act 2009 and to specifically address the best interests of the children in that context. For the Secretary of State, Mr Nath points to the very detailed consideration of the circumstances of the child appellants and submits that there was, in effect, an adequate assessment of best interests of the children. Mr Karim submitted that Section 55 of the Borders, Citizenship and Immigration Act 2009 requires a free-standing assessment of best interests and that this cannot be divined from the decision.
10. In ZH (Tanzania) [2011] UKSC 4, the Supreme Court held that the best interests of a child must be a primary consideration and that this means they must be considered first. However, those best interests can be outweighed by the cumulative effect of other factors. This included the public interest and the mother's appalling immigration history. The children are not to be blamed for the sins of the parents and thus it would be wrong to devalue what is in their best interests by something for which they could in no way be held to be responsible. The best interests must rank higher than other considerations and is not merely one consideration that is to be weighed in the balance alongside other competing factors.
11. In Kaur the President held, inter alia, that in the proportionality balancing exercise, the best interests of a child must be assessed in isolation from other factors, such as parental misconduct, and that the 'best interests' assessment should normally be carried out at the beginning of the balancing exercise. Factors such as parental immigration misconduct must not intrude at the stage of assessing best interests, which "have a free-standing character. Avoidance of error is likely to be promoted if the best interests assessment is carried out first." Factors such as immigration status may legitimately enter the equation at a later stage of the overall proportionality balancing exercise, at which stage a child's best interests can potentially be outweighed by the public interest and the immigration history and status of the parents.
12. In Kaur, the President went on to consider the effect of s117B of the 2002 Act on the 'best interests' principles. As drafted the provisions appear to have the effect that whilst a child's best interests have the status of a primary consideration, the private lives of both parents and children developed during periods of precarious or unlawful residence in the UK are automatically and compulsorily given little weight. There is no distinction in the statute between a child or an adult. However, relying on Rhuppiah v Secretary of State [2016] EWCA Civ 803, the President concluded that the 'sins of the parents' principle survives s117B, on the basis that the wording of s117A allows other considerations which are capable of counterbalancing the 'little weight' provisions, and that the 'little weight' requirement may be overridden in an exceptional case by particularly strong features of the private life in question, so that it is not appropriate to attach only little weight to private life in the article 8 proportionality balancing exercise. The President suggested that there is therefore some flexibility in the 'little weight' legislative instructions of s117B.
13. Of note is that the President cited the judgement of Lord Thomas LCJ in Hesham Ali (Iraq) v SSHD [2016] UKSC 60 Ali, which emphasised the importance of making clear findings on material issues of fact. The next requirement on judges is to "set out in clear and succinct terms their reasoning," Lord Thomas advocating the 'balance sheet' approach, so that First-tier Tribunal Judges set out reasoned conclusions as to whether the countervailing factors outweigh the importance attached to the public interest.
14. The President concluded, relying on EV (Philippines) v SSHD [2014] EWCA Civ 874 and MA (Pakistan) [2016] EWCA Civ 705, "The best interests of any affected child constitute a free standing factor and should properly be assessed before the proportionality balancing exercise is carried out. This exercise will be vulnerable to challenge if the child's best interests have not, first and foremost, been adequately and correctly assessed. Any issues of unlawful or precarious immigration status or parental misconduct have no role to play in this assessment. Such issues do, however, arise at the stage of completing the "balance sheet" advocated by Lord Thomas (supra). Issues of this kind are plainly relevant and they belong to the public interest side of the balancing equation. It is at this later point in the exercise that they enter the stage." Where, at that stage, in any given case, the evaluation of parental immigration misconduct in the balancing exercise contributes to a conclusion that will involve the entire family unit departing the UK, this does not amount to blaming the children. "Critically -absent some other vitiating factor - the assessment of the best interests of the children, always most aptly carried out at the beginning of the overall exercise, will be unassailable in law provided that the factor of parental misconduct has not intruded at that stage."
15. In the light of the above analysis, I do not accept the submission that the decision of the First-tier Tribunal applying s117B penalises the children for their parents' conduct. However, the failure of the First-tier Tribunal to make a clearly identifiable assessment of the best interests of the children and to do so at the outset and independent of their immigration status or history, falls foul of the guidance and jurisprudence summarised above. Whilst the decision discloses a careful assessment of the circumstances of each of the appellants, including the children, the decision jumbles effective consideration of best interests with the proportionality assessment, so that it is not possible to establish what the conclusion was on best interests, independent of other countervailing factors.
16. In the circumstances, the decision cannot stand and must be set aside to be remade in the First-tier Tribunal.
Remittal
17. When a decision of the First-tier Tribunal has been set aside, section 12(2) of the Tribunals, Courts and Enforcement Act 2007 requires either that the case is remitted to the First-tier Tribunal with directions, or it must be remade by the Upper Tribunal. The scheme of the Tribunals Court and Enforcement Act 2007 does not assign the function of primary fact finding to the Upper Tribunal. Where the findings are unclear on a crucial issue at the heart of an appeal, as they are in this case, effectively there has not been a valid determination of those issues.
18. In all the circumstances, I relist this appeal for a fresh hearing in the First-tier Tribunal, on the basis that this is a case which falls squarely within the Senior President's Practice Statement at paragraph 7.2. The effect of the error has been to deprive the appellant of a fair hearing and that the nature or extent of any judicial fact finding which is necessary for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2 to deal with cases fairly and justly, including with the avoidance of delay, I find that it is appropriate to remit this appeal to the First-tier Tribunal to determine the appeal afresh.
Decision
19. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law such that the decision should be set aside.
I set aside the decision.
I remit the appeal to be decided afresh in the First-tier Tribunal in accordance with the attached directions.

Signed

Deputy Upper Tribunal Judge Pickup

Dated

Consequential Directions
20. The appeal is remitted to the First-tier Tribunal sitting at Hatton Cross;
21. The appeal is to be decided afresh with no findings of fact preserved;
22. The ELH is 3 hours;
23. The appeal may be listed before any First-tier Tribunal Judge, with the exception of Young and Judge Baker;
24. The appellant is to ensure that all evidence to be relied on is contained within a single consolidated, indexed and paginated bundle of all objective and subjective material, together with any skeleton argument and copies of all case authorities to be relied on. The Tribunal will not accept materials submitted on the day of the forthcoming appeal hearing;
25. The First-tier Tribunal may give such further or alternative directions as are deemed appropriate.
Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order pursuant to rule 13(1) of the Tribunal Procedure Rules 2014. However, the case involves children so that an anonymity direction is appropriate.
Direction Regarding Anonymity - Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014
Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent.
Fee Award Note: this is not part of the determination.
I make no fee award.
Reasons: The outcome of the appeal remains to be decided.

Signed

Deputy Upper Tribunal Judge Pickup

Dated