Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/26601/2015
IA/26604/2015
IA/26608/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 October 2017
On 01 November 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MCGEACHY

Between

Murad Mangalji Tinwala (First Appellant)
Firdsoi Murad tinwala (Second Appellant)
RIYAAZ MURAD tinwala (Third Appellant)
(ANONYMITY DIRECTION not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mr E Raw, of Counsel of Middlesex Law Chambers
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellants are citizens of India. The first and second appellants were born on 13 December 1962 and 15 May 1961 respectively. They are the father and mother of the third appellant who was born on 16 February 1990. They entered Britain as visitors in June 2005 with the third appellant and their second son, Aaman, who was born on 1 November 1995.

2. They appeal against a decision of Judge of the First-tier Tribunal Widdup who in a decision promulgated on 3 February 2017 dismissed their appeals against a decision of the Secretary of State to refuse them leave to remain on human rights grounds. He did however allow the appeal of Aaman on human rights grounds giving as his reason for allowing Aaman's appeal that he believed that he qualified under the provisions of paragraph 276ADE of the Rules because he had spent more than half his life in Britain. That decision was, of course wrong as the application had been made in 2008 when Aaman had not lived in Britain for more than half his life, but the reality is that that decision of Judge Widdup was not appealed by the Secretary of State.

3. Having entered Britain in 2005 as visitors the appellants overstayed. In September 2007 they were encountered and arrested and served with forms IS151A. They applied in August the following year for leave to remain on human rights grounds together with an application under Article 3 of the ECHR which they later withdrew. There was correspondence between the Secretary of State and the appellants' solicitors in 2011 when further evidence was requested, and again in 2013 the respondent advised the appellants' solicitors that their application was still under consideration. It was however refused in 2015, detailed reasons being given in refusal letters dated July that year.

4. The appellants appealed and their appeals were heard by Judge Widdup on 26 January 2017.

5. The judge considered the evidence before him noting that the first appellant had said that he had had an estate agency business and a "nuts and bolts" business in India which he had closed before coming to Britain. He had a property there which he had not sold. He said that he did not want to return to go back to India as his family was here, although he had referred, in evidence given to the Secretary of State in 2011, to brothers and sisters in India. The appellant had claimed to have no relations with his brothers in India and said that he had no relatives in Britain. His wife, however, did have brothers and sisters in India. The first appellant's reason for remaining in Britain was that he liked this country and had a future here and had decided to stay illegally. He said that he had not been given notice to leave Britain when he had been arrested in 2007. His wife stated that they had stayed on so that their children could benefit from an English education. Neither she nor the first appellant said that they had worked here: stating that they had been supported by a woman who they helped with her small child.

6. In paragraphs 40 onwards the judge set out his findings of fact and conclusions. He found that the first two appellants had entered not as genuine visitors but intending to stay if they could, having deceived the Entry Clearance Officer by stating that they intended only a visit. He considered that the first appellant's evidence about having no family in India was incorrect and noted that their assertion that they had never been a burden on public funds here was wrong in that medical treatment had been received by the second appellant and the children had had state education. He did not find it credible that the first two appellants had not been working. He concluded that in 2008 the appellants could not have succeeded under the Immigration Rules and indeed at that stage long residence for a period of at least fourteen years was required. He stated that the appellants could not succeed unless they could show that there were very significant obstacles to their integration in India. He found that there were no such obstacles, significant or otherwise. He pointed out the length of time that the appellants had lived in India - the first two appellants having lived until they were in their 40s. They had retained their family home in Mumbai and had family there. He stated that the first two appellants and their sons could return to India together as a family unit and stated that he could see no distinction between the parents and the children when considering the issue of significant obstacles. He referred to the third appellant and Aaman and stated that while they had not lived in India since 2005 they had received a good education in the UK and they had the acquired skills, which would be of advantage to them in India. He therefore dismissed the appeals of the first three appellants under the Immigration Rules.

7. The judge then went on to consider the situation of the family outside the Immigration Rules. He accepted that Article 8 was engaged, but considered that the decision was lawful and was proportionate. He made a brief reference to Section 117B of the Immigration Act 2014. He noted the first appellant did not speak English and that none of the appellants were working. Their private lives had been established while they had lived in Britain as overstayers.

8. He went on to say that the only countervailing factors were the delay, the health issues of the second appellant and her husband and the interests of the fourth appellant. He stated there was no justification for the delay but having had regard to the principles in the judgment of the Court of Appeal in EB (Kosovo) [2008] UKHL 41 he did not consider that the appellants had been prejudiced - the passage of time had meant that the appellants had consolidated their lives in Britain and they might conceivably have been given some hope that the inactivity of the respondent might mean that their claims might be allowed.

9. He went on to consider the medical evidence relating to the second appellant who is a type 2 diabetic, as indeed is the first appellant. The second appellant had, he noted, heart disease which had been diagnosed in 1987 and she had had treatment in India in that year. He did not consider that they were entitled to continue to be a burden on the NHS. With regard to the fourth appellant he stated that under Chikwamba principles there would be no point in him leaving to have to return to India and that was a further reason for him granting permission to that appellant to remain. Again, as I have said, I consider that that decision was incorrect.

10. In any event, the judge, although he allowed the fourth appellant's appeal, dismissed those of the other three appellants.

11. Lengthy grounds of appeal focused primarily on the issue of the public interest in the removal of appellants arguing, in effect that where the Home Office has delayed in issuing a decision to refuse, the public interest in the removal of the appellants is diminished. They also argued that with regard to the third appellant the fact that he came to Britain as a child, meant that the illegality of his overstaying should not be taken against him in any proportionality assessment.

12. Although permission was refused in the First-tier, Judge of the Upper Tribunal Pitt granted permission briefly stating that it was arguable that the judge had taken an incorrect approach to the delay of seven years and failed to address whether this altered the weight to be attached to the public interest.

13. At the hearing before me Mr Raw emphasised the length of time the appellants had lived in Britain since 2005 and stated that three years had passed after they had made their application before the respondent asked for further information. Having been given that information they had been informed two years later that the respondent was considering their applications. He emphasised that they had reported on a regular basis and that there were numerous references to their being good citizens. He said that the appellants no longer spoke Hindi, particularly referring to that assertion in the statement of the third appellant and the fact that their lives had been consolidated here. He argued that the position of the third and fourth appellants was correct. He had prepared a brief skeleton argument which again emphasised that the appellants had not absconded and referred to the delay in a decision being made, and indeed to the fact that the judge allowed the appeal of the fourth appellant. He stated that the appellants had built up their family and private life here.

14. He further added that the judge had been wrong to consider the first and second appellants separately from the position of the third appellant and argued that their cases were "inter-grooved". He argued that there were insurmountable and significant obstacles to stop the appellants returning to India.

15. Mr Tufan referred to the judgment in EB (Kosovo) stating that the appellants were not prejudiced by that and pointed to the fact that the first appellant had required an interpreter at appeal. He stated that there was no obstacles to the family returning to India.

Discussion
16. I find that there is no material error of law in the decision of the Judge of the First-tier. The reality is that although the delay in the case does diminish the public interest in removal the provisions of Section 117B of the 2014 Act deal clearly with the issue of private and family life which is built up when appellants have no extant leave to remain. Sub-section 117B(4) makes it clear that little weight should be given to a private life formed when a person is in the United Kingdom unlawfully and indeed little weight should be given to private life established when an immigration status is precarious. The judge did not penalise the third appellant because the decision of his parents to remain in Britain without authority. He properly considered the third appellant's situation as it stood, that is that he had built up his private life here at a time when he did not have leave to remain. He does not qualify under paragraph 276ADE of the Rules and the judge was entitled to consider that given that his parents would be returning to India, that they had a home there, that his father had had a business there, and that the third appellant himself had obtained qualifications through the British educational system here meant that he would be in a position to obtain work in India. Indeed, it could be argued that the aims of his parents had been achieved in that they wished him to have an education here. Although the third appellant stated in his statement that he could no longer speak Hindi, the reality is that not only is English often the language of choice at work in India, but the third appellant lived there until he was 15 and he must have continued to speak to his father in Hindi as his father does not speak English, as was shown by the fact that he had required an interpreter at the appeal. The third appellant is, of course, now 27. He is likely to form a separate family unit at some stage.

17. The judge was therefore entitled, on considering the application of the third appellant on his own to find that there were no insignificant or indeed any obstacles to his returning to India with his parents.

18. It is for Aaman to decide whether or not he wishes to return to India with them.

19. There is nothing in the health of the first and second appellants to indicate that they could not return to India where they have a home and relatives and should they require it they would be able to receive medical treatment there as indeed as the second appellant has already done.

20. The reality is that the judgment in EB (Kosovo) does not say that delay entitles a person to leave to remain. What it does say is that during a period of delay individuals may well strengthen their ties with this country and build up their private and family life here. I would comment that that does not appear to have been the case here with regard to the first and second appellants who have not worked, although I accept that it is the case with regard to the third appellant. Be that as it may, neither he nor his parents qualify for leave to remain either under the Rules or under the provisions of Article 8 of the ECHR, and I therefore find that there is no material error of law in the decision of the Judge of the First-tier Tribunal and that therefore his decision to dismiss these appeals shall stand.

Notice of Decision

These appeals are dismissed on human rights grounds.

Signed Date: 30 October 2017

Deputy Upper Tribunal Judge McGeachy

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 30 October 2017

Deputy Upper Tribunal Judge McGeachy