Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26276/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated

on 16 February 2017
on 23 February 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

SAGAR ALI

Respondent

For the Appellant: Mr M Matthews, Senior Home Office Presenting Officer
For the Respondent: Mr J Bryce, Advocate, instructed by Maguire Solicitors (Scotland) Ltd

DETERMINATION
1. The SSHD appeals against a decision by First-tier Tribunal Judge Wylie, promulgated on 11 August 2016, allowing on human rights grounds Mr Sagar Ali's appeal against refusal of leave to remain in the UK. Parties are further referred to as they were in the FtT.
2. The appellant is a citizen of India, born on 7 July 2015. He came to the UK on a student visa on 24 September 2010. On 20 October 2013 the respondent curtailed his leave, against which he had no right of appeal. On 27 October 2014 he applied for leave based on his family and private life in the UK, which was refused on 7 November 2014. On 25 November 2014 he made a further application, asking for his case to be considered under article 8 of the ECHR.
3. The appellant married Mrs Samantha Ali on 17 October 2012. They have one child, Alfie Graham Ali, born on 19 December 2014. His wife and child are UK citizens.
The respondent's decision dated 7 July 2015.
4. The application was considered with reference to article 8 and to the respondent's duty under section 55 of the 2009 Act to safeguard and promote the welfare of children (paragraphs 1 and 3).
5. Educational Testing Service (ETS) had confirmed that the appellant's scores from tests taken on 19 and 22 March 2013 had been cancelled. The appellant had sought leave to remain "by deception? an anomaly with your speaking test indicated the presence of a proxy test taker". He therefore did not meet the requirements of appendix FM of the immigration rules as a partner or parent or on grounds of private life (paragraphs 7 and 8).
6. "For the sake of completeness" the rest of the claim was considered. The appellant and his spouse were in a genuine and subsisting relationship and had a child. Requirements under the partner route of appendix FM would therefore have been met (paragraphs 10 to 13).
7. The family lived as a unit, and the appellant did not have sole responsibility for his son, and so failed to meet the requirements of the rules as a parent (paragraphs 14 to 22).
8. In terms of paragraphs EX1 and 2 of the rules, it would not be unreasonable to expect the child to leave the UK, and there would be no insurmountable obstacles to the appellant's family life with his partner and child continuing in India (paragraphs 23 to 27).
9. The application failed in terms of private life (paragraphs 28 to 37)
10. It was undesirable for the appellant to remain in UK due to his deception. There were no insurmountable obstacles to family life abroad. "You can apply for entry clearance from abroad and request leave to enter the UK as a partner of a British citizen. It has therefore been decided that there are no exceptional circumstances in your case", such as to warrant a grant of leave outside the rules.
The decision of the FtT.
11. The appellant accepted that he could not succeed within the rules either as a partner or as a parent. He argued in terms of section 117B (6) of the 2002 Act that "it would not be reasonable to expect the child to leave the UK". He relied particularly on the child's extended maternal family in the UK, his particularly close relationship with his grandmother, and the benefits to which he was entitled of growing up in the country of his nationality, under reference to ZH (Tanzania) v SSHD [2011] UKSC 4.
12. The respondent argued that use of deception was relevant to the assessment of proportionality, while the appellant disagreed, under reference to Treebhawon and Others [2015] UKUT 00674. The judge did not accept that submission, on the authority of MA (Pakistan) [2016] EWCA CAV 705, and considered that the public interest considerations were to be taken into account, including the assertion of deception. (paragraph 22).
13. The appellant challenged the respondent's evidence of deception in the ETS test, but the judge found it sufficient, and was not satisfied by the explanation offered by the appellant to disprove it (paragraphs 23 to 32).
14. The judge said that the interests of the child formed the primary but not paramount consideration, took account of the immigration history, and noted that the maintenance of effective immigration controls was in the public interest. She found that it was not reasonable for the child to be removed from the UK and lose the benefits of being brought up in the country of his birth; that if the appellant was removed to India, his wife and child would not accompany him; that the best interests of the child would be safeguarded and promoted by living in family with both parents; and that it would be disproportionate to remove the appellant (paragraphs 34 to 40).
The grounds of appeal to the UT.
15. The material parts of the grounds are as follows.
5. The judge ? failed to take into account ? that the appellant is not financially independent, neither is his spouse. The appellant's presence in the UK would be a continued burden on the state and the public interest has not been properly weighed. The whole of section 117 has not been applied.
6. The judge found it not reasonable for the child to accompany the appellant to India but that enquiry was entirely child focused rather than an holistic assessment of all the public interest factors; see MA (Pakistan).
7. ? the article 8 [consideration] is extremely brief and the reasoning difficult to demarcate in the determination, at best begins from paragraph 35 and consists of 9 short sentences. The reasoning is wholly inadequate.
8. ? the judge fails to factor into the proportionality assessment the fact that the appellant went to ground to evade immigration control (finding at paragraph 33) and more importantly fails completely to factor in [her] finding that the appellant committed deception in obtaining leave to remain by fraud by use of TOEIC certificate (paragraph 32).
9. Had the judge not misdirected [herself] in law as per section 117B; MA Pakistan; and failure to factor material matters in to the proportionality assessment there is a real possibility [she] may have come to a different conclusion.
Proceedings in the UT.
16. At a hearing on 17 January 2017, the appellant accepted that the grounds disclosed at least an apparent error to the extent that although the tribunal said earlier in its decision that it would follow MA, it might not have taken account in its final assessment of factors which would have been relevant in that light.
17. The appellant sought to renew the argument that MA is wrongly decided and ought not to be followed, particularly by a tribunal sitting in Scotland.
18. The appellant also sought, if the stage of remaking the decision was reached, to re-open the issue of deceit in the ETS test. The appellant had prepared an application for permission to appeal out of time in that respect, contending that the judge failed to resolve submissions on the inadequacy of the evidence to prove deception by the appellant. No formal application was made on the basis of that application.
19. The respondent was not prepared to accept that the appellant was entitled to re-open the issue.
20. Both parties sought further time to consider. They filed written notes and made further oral submissions on 16 February 2017. These raised some interesting and intricate issues, as outlined below, which have all been taken into account, but in view of the eventual conclusion I have reached they need not be fully rehearsed or resolved in every respect.
Case for SSHD.
21. The appellant conceded that if MA were followed the decision of the FtT could not stand. As the UT has UK wide jurisdiction, where it sat was of lesser importance. Although a decision of the Court of Appeal was not binding and of persuasive weight only, there was obvious desirability in the law governing tribunal decisions not varying with the location in the UK where they sat. There was no conflicting authority from another UK appellate Court. The most authoritative judgement should be followed. In any event, the construction of section 117B (6) sought by the appellant i.e. "that reasonableness should be entirely child focused" was not the only possible interpretation. The best course of course for the UT was to follow the decision of the Court of Appeal.
22. The appellant was entitled to raise the issue of deception, without seeking permission to appeal, because it was brought by note under rule 24 in response to the grant of permission.
23. The appellant's grounds in respect of deception were of no substance. The FtT took into account the relevant evidence at paragraph 24, and held consistently with authority that the initial burden had been discharged and it was for the appellant to provide an innocent explanation. The judge gave clear reasons for rejecting the explanation he offered. There was no evidence to support the argument that it was the College which was responsible for the deception and not the appellant. In remaking the decision in terms of proportionality, that finding should carry over.
24. The appellant could succeed only if there were exceptional circumstances such that the rules did not produce a proportionate outcome. It was not disproportionate to expect the appellant to carry on his family life with his wife in India. Even if she did not go, that was not a disproportionate outcome.
25. The couple did not appear to be financially independent.
26. The fact that the appellant had been found to engage in deceit was a matter to be given "considerable weight when determining the balance should be struck. The public interest in removing someone who has committed such an act is powerful" (paragraph 21 of the note).
27. Although the child is British, there would require to be exceptional circumstances such that removal would be unjustifiably harsh.
28. It was plainly in the child's best interests to have contact with both parents. That could be achieved if the family lived together in India.
29. The child would not be forced to leave the EU, as he could alternatively live with his mother in the UK. There was no suggestion that she would not be an adequate carer.
30. The appellant had been "part of an abusive immigration control on an unprecedented level. As such, notwithstanding the fact that the best interests of the child might be to live with his parents, those best interests are outweighed by the public interest in maintaining the integrity of the immigration system. In the same sense that deportation can have the effect of breaking up families because of the bad criminal behaviour of a parent, the act of deception as found by the FTT here can similarly have that effect. In that sense the 117B (6) question does not even arise as the child is not necessarily expected to leave the UK" (paragraph 23).
31. The child is young and his life almost entirely focused on his parents. Living in India might change his interactions with extended family here, arguably to his detriment, but interactions with extended family in India would also change, no doubt for the better. There was nothing to make it unreasonable for him to live in India. Moreover, following MA the assessment of reasonableness was not entirely child focused and there was the powerful public interest factor that the child's father had used deception. "It would be outrageous to allow the appellant to stay in those circumstances" (paragraph 25).
32. The SSHD's appeal should be allowed, and the decision should be remade by dismissing the appeal [as originally brought by the appellant to the FTT].
Case for appellant.
33. Although the judge rejected the submission for the appellant with reference to section 117B (6) and MA, she did not appear to have had regard to that finding when considering the wider public interest considerations.
34. That was of no moment if the appellant was correct that wider public considerations were irrelevant, but if the appellant was wrong about that, it was "likely the UT will find the FTT decision to contain error of law".
35. The appellant had firstly to persuade the UT that MA was not to be followed.
36. The court in MA at paragraphs 36 to 44 explained why, free from authority, it would have favoured the argument that the focus of paragraph 117B (6) is solely on the child and there is no justification for reading the concept of reasonableness so as to include a consideration of the conduct and immigration history of the parents. The appellant adopted that analysis, with one further observation developed at paragraphs 2.1 - 2.3 of his note.
37. While a decision of the Court of Appeal would ordinarily be persuasive, the UT was unlikely to be persuaded by "a judicial decision of which its own author is unpersuaded". The UT, unlike the Court of Appeal, was free to come to the decision which the Court of Appeal would have preferred.
38. Given what was said in recent case law about unanswered questions and uncertainties, and given the burden of proof on the respondent, there had been no reliable evidence before the FTT linking the appellant to the invalid test result. It would be for the respondent not for the appellant to move to be allowed to admit further evidence. The appellant need only show that the evidence produced was insufficient.
39. The SSHD's argument that even if wider public interest considerations were not in play it would not be unreasonable to expect the child to leave the UK was not sustainable, by reference to ZH (Tanzania) [2011] UKSC 4.
40. The analogy with a deportation case was misconceived because section 117B (6) posits a bright line between cases involving criminality and those which do not.
Conclusions.
41. I have not found among the papers any response by the appellant under rule 24 to the grant of permission, although the SSHD's note suggests that there was one. The way for the appellant to raise his "ETS deceit" argument would have been in terms of rule 24 (3) (e). However, in view of the way the case has developed I would take the ground as open to the appellant, and deem extension of time to have been granted.
42. The appellant's counsel did not argue that the judge robustly applied MA (perhaps because his submission in the FTT had been precisely that was what she should not do), but he stopped short of a concession of legal error.
43. In any event, I have to decide whether the making of the decision involved the making of any error on a point of law, such that it should be set aside.
44. I am not satisfied that the grounds disclose any of the errors at which they aim.
45. The point at paragraph 5 of the grounds about financial independence and the burden on the state is not a strong one. It does not appear to have been a feature of the refusal decision or of the submissions by the presenting officer for the SSHD in the FTT. There was information among the papers from which it appears that the appellant's wife was receiving jobseekers allowance. There is no reason to think that the appellant is unable or unwilling to work and maintain himself, if legally permitted to do so, or that the judge did not take into account such information about the financial capacities of the parties as was before her. There is no foundation for the statement that the appellant would be "a continued burden on the state".
46. The averment at paragraph 8 of "going to ground to evade immigration control" is an overstatement. The appellant did not conform to the conditions of his visa, and he overstayed, but he brought himself back to the respondent's notice by applying for leave, eventually leading to these proceedings. Mr Matthews did not try to make anything of this point.
47. Brevity is no legal error. The complaint of deficiency of reasoning is one point only: after reaching her finding of deception at paragraph 32, the judge did not mention that matter again in reaching her conclusions on the best interests of the child and the proportionality of removal. The grounds complain of nothing which would have taken more than one sentence to resolve.
48. I do not see why the decision on proportionality should be read only from paragraph 35. The law, evidence and submissions on the issue form the main part of the subject matter up to paragraph 22, where the judge directed herself on the authority of MA that wider public interest considerations must be taken into account, including the assertions of deception. From paragraphs 23 to 33 she resolves the deception issue against the appellant. I do not see why it should be taken that in the rest of her decision she put all that went before out of her mind, and reached a decision contrary to her self-direction on the law and her finding on the facts. The reasoning is not "difficult to demarcate", if the decision is read as it should be, fairly and as a whole.
49. The grounds do not say that the decision was beyond the tribunal's rational scope. (The submissions on remaking for the SSHD finally came close to that, but for the reasons pointed out by Mr Bryce, that would go too far.)
50. The use of deceit in the ETS test was a strong consideration in favour of the enforcement of immigration control by removal of the appellant, but the factors relied upon by the judge on the other side are well grounded in the facts of the case, and of a nature supported by the case law.
51. It might be said that the case was finely balanced, and that not all judges might have come down on the same side, but having found no reason to suppose that the judge left the deceit out of account, I see nothing which entitles the UT to interfere.
52. The other issues raised become incidental, but in deference to the arguments I briefly state my views.
53. MA, as far as I am aware, has to date been consistently applied by the UT not only in England and Wales but also in Scotland.
54. I see some logic in the appellant's argument, arising from the apparently unique state of the case law, that the UT is free to be persuaded by an analysis the Court says it would have preferred. However, there is I think greater strength in the respondent's argument that where there is only one authoritative resolution of a point by a higher appellate Court, that should be followed wherever a tribunal with UK jurisdiction happens to sit.
55. On the deception in the English language test, I find the appellant's proposed grounds to be no more than reassertion and disagreement. The judge was entitled to find the evidence of the respondent sufficient to discharge the initial evidential burden, and she gave clear and sensible reasons for finding the appellant's account not to amount an innocent explanation. Even had there been any other error, such as to require the decision to be remade, I would not have set the decision aside in that respect.
56. The decision of the FtT shall stand.

UT Judge Macleman
22 February 2017