Tribunal decisions

The decision

IAC-PE-SW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/26784/2015
IA/26788/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 3rd November 2016
On 15th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

Fenghao [Z] (FIRST APPELLANT)
Hui ji [Z] (SECOND APPELLANT)
(anonymity direction NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: No legal representation
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

NOTICE OF DECISION
Introduction and Background
1. The Appellants appeal against the decision of Judge Heynes of the First-tier Tribunal (the FtT) promulgated on 7th April 2016.
2. The First Appellant is a female Chinese citizen born 28th January 1971, and the Second Appellant is her partner, a male Chinese citizen born 10th February 1963.
3. The Appellants and their daughter, who was an Appellant before the FtT, but subsequently withdrew her appeal to the Upper Tribunal, applied for leave to remain in the United Kingdom on 10th July 2013. The application was a human rights application, based upon their family and private life.
4. The Respondent refused the applications on 14th July 2015 and the Appellants appealed to the FtT pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act).
5. The FtT found that the Appellants could not satisfy the requirements of Appendix FM in relation to family life as neither are British citizens, they are not present and settled in the United Kingdom and they are not in this country with refugee leave or humanitarian protection.
6. The FtT considered the Appellants' private lives with reference to paragraph 276ADE(1) noting that they had not lived in the United Kingdom continuously for at least twenty years at the date of application, and they had not proved that there would be very significant obstacles to their integration back into China.
7. The FtT did not find that there were any compelling circumstances which would justify granting leave to remain pursuant to Article 8 of the 1950 European Convention on Human Rights (the 1950 Convention) outside the Immigration Rules. If that conclusion were held to be wrong, the FtT considered that the Respondent's decision to refuse the Appellants' leave was proportionate and therefore the appeals were dismissed on all grounds.
8. In relation to the Appellants' child, the FtT considered the best interests of the child at paragraphs 29-34 and concluded that the best interests of the child were not served by her remaining in the United Kingdom.
9. The FtT went on to find that if that conclusion was wrong then the removal of the child would still be proportionate, as when a balancing exercise was carried out in relation to proportionality, the FtT view was that "the need for proper immigration control outweighed the best interests of the child". In reaching that conclusion the FtT took into account the poor immigration history of the Appellants.
10. The Appellants applied for permission to appeal to the Upper Tribunal and the grounds for so doing are summarised below.
11. It was contended that the FtT had erred in considering the best interests of the child and the proportionality of removal. The child was born in the UK on 21st April 2006, and had almost completed ten years' uninterrupted residence in the United Kingdom at the date of hearing.
12. It was contended that the FtT had erred in failing to assess whether it was reasonable to expect the child to leave the United Kingdom. The FtT had not taken into account that the child had never been to China, that she had no practical experience of life in China, and that she was born and raised in the United Kingdom.
13. In addition the child had no experience of the Chinese educational system and she could speak only basic Cantonese and therefore would struggle to adapt to life in China. The child suffers from alopecia which was a medical factor that should have been properly considered.
14. Permission to appeal was granted by Judge Hodgkinson in the following terms;
"2. The grounds argue that the judge failed adequately to consider what was in the Third Appellant child's best interests, failed to consider whether it was reasonable to expect her to leave the United Kingdom and failed satisfactorily to apply the provisions of the Respondent's relevant IDI.
3. Having read the judge's decision in its entirety, it is evident that nowhere therein does he refer to the question what is, or is not, reasonable for the child, and nowhere therein does he refer to the fact that the child is, indeed, a qualifying child, with reference to paragraph 276ADE(iv) and s117B(6) and 117D of the 2002 Act. It is arguable that the judge has not satisfactorily or adequately considered all relevant factors, as highlighted in the grounds, bearing in mind also that, at the date of the appeals hearing, the child Appellant had lived in the United Kingdom for nearly ten years and was very close to being in a position of entitlement to British citizenship. The judge's decision reveals arguable errors of law."
15. Following the grant of permission the Respondent lodged a response pursuant to rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008. In summary the Respondent contended that the FtT had directed itself appropriately in taking into account all relevant circumstances and noting the poor immigration history of the First and Second Appellants. The FtT had taken into account the best interests of the child as a primary, and not a paramount consideration and weighed the best interests against the public interest in maintaining effective immigration control.
16. It was contended that the FtT had considered the reasonableness of removing the child and her parents from the United Kingdom and reached a decision open to it on the evidence.
17. Directions were subsequently issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FtT had materially erred in law.
The Upper Tribunal Hearing
18. Both Appellants attended. Their solicitors did not attend, and had advised the Tribunal in advance that they would not be attending. I ascertained that both Appellants could communicate with the interpreter in Cantonese.
19. The Appellants confirmed that their daughter was not in attendance, and that she did not pursue her appeal to the Upper Tribunal because she had, following the FtT hearing, been granted British citizenship. The Appellants' solicitors had indicated to the Tribunal that the Appellants' daughter did not wish to proceed with her appeal, and I have issued a separate Notice of Withdrawal in relation to her.
20. The Appellants confirmed that they were aware in advance, that their solicitors would not be attending the hearing and they were content to proceed without legal representation.
21. I explained to the Appellants that I had to decide whether the FtT had made a mistake of law, and I ensured that they were aware of the representations made on their behalf by their solicitors, which had resulted in permission to appeal being granted.
22. Having summarised the Grounds of Appeal to the Upper Tribunal, I asked the Appellants whether they wished to add anything further, and they did not.
23. I then advised the Appellants to listen carefully to what was said on behalf of the Respondent, and I would give them the opportunity to respond if they wished.
24. Mr Bates relied upon the rule 24 response. He pointed out that the Appellants' daughter was not a British citizen at the date of the FtT hearing. The FtT was aware of the length of time that the child had been in the United Kingdom and the FtT had properly assessed the best interests of the child. Mr Bates submitted that there was no need for the FtT to make specific reference to either paragraph 276ADE(1)(iv) or section 117B(6) if all the relevant factors had been considered. In this case Mr Bates submitted that the relevant factors had been considered by the FtT and adequate reasons given for the findings made. Mr Bates placed reliance upon MA (Pakistan) [2016] EWCA Civ 705 and submitted that the FtT had correctly approached the proportionality assessment. I was asked to find that the FtT decision disclosed no material error of law.
25. I asked the Appellants if they wished to reply to what had been said on behalf of the Respondent, and they indicated that they did not.
26. I then reserved my decision, explaining to the Appellants that I wished to reflect upon what had been said, and that I would issue a written decision.
My Conclusions and Reasons
27. The appeal of the Appellants' daughter, who was the Third Appellant before the FtT has been withdrawn. The challenge to the FtT decision rests upon the FtT's consideration of the child's best interests, and whether it would be reasonable for her to live outside the United Kingdom. Although the child's appeal has been withdrawn, the challenge is relevant to the Appellants, as her parents.
28. The normal course would have been, when considering the child's interests, for the FtT to consider whether the child could benefit from the provisions of paragraph 276ADE(1)(iv) if she had lived in the United Kingdom continuously for seven years at the date of application. In this case the date of application was 10th July 2013, and the child was born in the United Kingdom on 21st April 2006 and therefore had resided in the United Kingdom for seven years at the date of application, and the issue that needed to be decided was whether it would be reasonable to expect her to leave the United Kingdom. It is the same test as contained in section 117B(6) of the 2002 Act, although the seven year qualifying period relates to the date of hearing rather than the date of application.
29. The FtT did not specifically consider either paragraph 276ADE(1)(iv) or section 117B(6) but notwithstanding this, I do not find that the FtT materially erred in law for the following reasons.
30. In my view the FtT did take into account the relevant factors when considering the child. The FtT considered the best interests of the child at paragraphs 29-34. In ZH (Tanzania) [2011] UKSC 4 at paragraph 29 it was confirmed that the best interests of a child broadly means the well-being of the child, and this will involve asking whether it is reasonable to expect the child to live in another country.
31. At paragraph 47 of MA (Pakistan) [2016] EWCA Civ 705 it was confirmed that considering the best interests of a child does not automatically resolve the reasonableness question. This is because even if it was found to be in the child's best interests to stay in the United Kingdom, it may still be not unreasonable to require the child to leave.
32. In this case the FtT considered Azimi-Moayed [2013] UKUT 197 (IAC), finding that the starting point is that it is in the best interests of a child to remain with both parents, even if they are to be removed, unless there are reasons to the contrary. The FtT acknowledged that children should have the stability and continuity of social and educational provision, the benefit of growing up in the cultural norms of a society to which they belong, and that lengthy residence in a country other than the state of origin can lead to ties that it would be inappropriate to disrupt. The FtT acknowledged that seven years can be described as a relevant period, and seven years from the age of 4 is likely to be more significant.
33. The FtT also took into account the guidance given in EV (Philippines) [2014] EWCA Civ 874.
34. The FtT took into account that the child was nearly 10 years of age at the date of hearing, and had always lived in the United Kingdom. It was noted that she attends school and is doing well and has made friends and had been brought up in a Cantonese-speaking family. It was acknowledged that removal to China would cause a significant degree of disruption, but it was noted that China has an educational system "capable of producing students with the highest qualifications", and the child is a citizen of China.
35. The FtT acknowledged that the child had never visited China and clearly took into account that the child had always lived in the United Kingdom. It was not suggested that there were any relevant medical conditions that could not be treated in China. The FtT was entitled to find that the Appellant would have no linguistic difficulties in China.
36. In my view although another Tribunal may have reached a different conclusion, the FtT was entitled to find on the evidence before it, that it was not in the child's best interests to remain in the United Kingdom, and her best interests would be to remain with her parents and return to China.
37. I accept that the FtT did not specifically consider the issue of reasonableness, but in reaching the conclusion that the best interests of the child would be to return to China with her parents, I conclude that the issue of reasonableness must have been considered by the FtT, although it would have been helpful had there been a specific reference to this. However by reaching the conclusion that the best interests of the child would be to return to China with her parents, the FtT in my view clearly found that it would not be unreasonable for the child to return to China.
38. I therefore conclude that the FtT did not materially err in law.
Notice of Decision
The decision of the FtT did not involve the making of a material error on a point of law. I do not set aside the decision. The appeals are dismissed.
Anonymity
No anonymity direction was made by the FtT. There has been no request for anonymity to the Upper Tribunal. I see no need to make an anonymity direction.

Signed Date 7th November 2016

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD
As the appeals are dismissed there are no fee awards.

Signed Date 7th November 2016

Deputy Upper Tribunal Judge M A Hall