Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/27309/2015
IA/27312/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 January 2017
On 13 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS

Between

mrs n r hettiarachchige
mr d a m nisal uithsara
(anonymity direction Not made)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms E Harris of Counsel instructed by Nag Law Solicitors
For the Respondent: Mr P Singh, Home Office Presenting Officer

DECISION AND REASONS

1. These are linked appeals against the Decision of First-tier Tribunal Judge M A Khan promulgated on 20 July 2016 in which the appeals of the Appellants, against decisions of the Secretary of State dated 17 July 2015 to refuse applications for leave to remain on the basis of private life, were dismissed.

2. There is really only one issue in these linked appeals, to which I will come in due course. However, I must first say something about the facts, and also in respect of some of the other areas of challenge that have been raised on behalf of the Appellants.

3. The Appellants are both citizens of Sri Lanka. The First Appellant was born on 18 January 1974 and the Second Appellant, who is her son, was born on 30 January 1999. The Appellants entered the United Kingdom in January 2008, respectively as the spouse and dependent child of a student studying in the UK. It has been said during the course of their application and appeal that the First Appellant has become estranged from her husband (the father of the Second Appellant), and at all times material to the application and appeal they have been living apart. Indeed it is said that the whereabouts of the principal family member from whom the Appellants derived their entitlement to enter the United Kingdom is not known to them. In the event that aspect of their account was not accepted by Judge Khan: I refer to it now for completeness.

4. The Appellants enjoyed a period of leave up until 31 December 2011 and thereafter both became overstayers. It was not until 19 February 2015 that applications were made to regularise their status. That application was in fact made within days of the Second Appellant having been present in the United Kingdom for seven years.

5. The First-tier Tribunal Judge has rehearsed the essence of the Appellants' cases at paragraphs 10-25 of his Decision, where he sets out in some detail the evidence that was advanced before him in respect of the circumstances of the Appellants. In that context he also heard from the brother of the First Appellant. Although criticisms have been made of other aspects of the factual matters recorded in the decision of the First-tier Tribunal, no specific allegation of mistake or misunderstanding has been made in respect of paragraphs 10-25.

6. It may be seen from the recording of the evidence before the First-tier Tribunal set out in the Decision, and indeed from the documents on file, that the Appellants' cases were very much put with a focus on the circumstances of the Second Appellant and in particular his education. Indeed at paragraph 13, when being asked in respect of reasons for overstaying in the United Kingdom, the First Appellant is recorded as saying this:

"She said that she did not think of leaving the UK when her leave expired because she has no one in Sri Lanka, her parents are very elderly, she was thinking about her son's education and her brother was helping her."

7. At paragraph 14 the First Appellant is also recorded as saying this:

"She said that she remained here illegally because her son was young at the time. He is now older and starting his university education, she was always thinking about his education. The appellant stated that her brother did advise her to apply to regularise her stay but she was on her own with her young child, she could not have made an application on her own, she had no idea how to go about making an application. She said that when her son was thinking of joining a university, she thought about it and made the current application. She said that she had never paid for any of her son's education, it was all on the government education scheme."

8. The First-tier Tribunal Judge made a number of findings in respect of the accounts given by the Appellants, and in particular at paragraph 30 he characterised their evidence - and it would appear also the evidence of the witness - as being "extremely vague and evasive". The Judge considered this so particularly in respect of "the whereabouts of the [First] Appellant's husband". Indeed, in due course, the First-tier Tribunal Judge indicated that he did not accept that the Appellants did not know the whereabouts of the husband/father, and did not find it credible that the Appellants had in effect been supported by the First Appellant's brother since 2011. The Judge also rejected the First Appellant's claims as to not being aware of the need, or the steps required, to regularise her own and her son's immigration status, saying "she was more concerned about her son's education than anything else".

9. At paragraph 34 the Judge reached the conclusion that the First Appellant had not demonstrated anything in her circumstances to suggest that there would be any significant obstacles to her integrating into Sri Lankan society, and in those circumstances considered that the first Appellant did not satisfy the requirements of paragraph 276ADE(1).

10. The Judge then turned his considerations to the Second Appellant, and at paragraph 35 said this:

"The second appellant is now 17 years of age and about to enter university education. At the date of the application on 19 February 2015 he had spent 7 years 9 days in the UK and almost 9 years of his life was spent in Sri Lanka where he was a grade 4 student at an English school which offered Sinhalese subjects as well. The appellant is under 18 and has lived in the UK for over 7 years. However he has also lived in Sri Lanka for nearly 9 years. He has studied there in the English medium in the past and there are English universities in Sri Lanka. The only difference between the English universities and the Sri Lankan universities is that their syllabuses are slightly different. The appellant has not started his university education yet but is about to embark on it. His mother will be returning to Sri Lanka. His grandparents are there. He is in regular contact with them. I find that the appellant will have the support of his mother and his grandparents in Sri Lanka. In the circumstances I find that it is not unreasonable for the second appellant to return to Sri Lanka with his mother."

11. I pause to note that the Judge also again referred to the Appellant's education at paragraph 37 noting "I find that the second appellant can reasonably be expected to return to Sri Lanka with his mother and continue with his university education there".

12. In all of the circumstances, having directed himself further to case law and the statutory requirements of section 117A and 117B, the Judge went on to dismiss the appeal.

13. The Appellants being unhappy with the outcome of the appeal pursued an application for permission to appeal to the Upper Tribunal which was granted by First-tier Tribunal Judge Colyer on 21 December 2016.

14. The principal challenge raised on behalf of the Appellants relates to the Judge's approach at paragraph 35 to the Second Appellant's case and in particular the stage at which his education had reached. I will return to that point shortly.

15. Additionally challenges are made pleading in aid the decision of ML (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 844 in respect of the required level of scrutiny necessary to be demonstrated by a Tribunal Judge, to be reflected in the care with which a 'determination' or 'Decision and Reasons' is prepared. ML also involved a decision of Judge Khan - a decision that attracted considerable criticism by reason of the numerous factual errors and mistakes (that might well have arisen through an inattentive use of a template decision), such that it had become unclear to what extent the Judge had actually applied his mind to the facts before him. It is clear that there are some similar errors on the face of the determination herein. Even a quick perusal of the decision readily reveals a number of matters that are inaccurate. For example, at paragraph 5, it is said that the Appellant has put in general grounds of appeal. That is not so. The Grounds of Appeal do attempt to address the particular circumstances of the Appellants' case and are not mere general or 'holding' grounds. There is some confusion between paragraph 6 and 8 of the Judge's Decision in that at paragraph 6 he refers to deciding the case on the documents whereas at paragraph 8 he refers to the end of the hearing - and plainly this was a case not decided 'on the papers'. The Judge also concludes his decision by referring to dismissing all three appeals; he also refers to the evidence of the three Appellants, and it seems at least at some point he may have had it in mind that there was an appeal being brought by the First Appellant's brother.

16. During the course of argument I expressed a preliminary view that in circumstances where the Judge had with some detail and accuracy set out the substance of the Appellants' cases at paragraphs 10-25, that those errors of fact highlighted in the Grounds did not obviously constitute such significant deviation from the facts and circumstances of the core case as to likely result in an error of law requiring that the decision be overturned - notwithstanding that there was good cause to be 'troubled' by such errors.

17. Ms Harris, on behalf of the Appellants, resisted this preliminary suggestion.

18. In the event it is not necessary for me to come to a firm conclusion because I am satisfied that there are significant and substantial errors, in particular in respect of the Second Appellant's case, such as to result in the decision of the First-tier Tribunal requiring to be set aside.

19. I find substance in the principal challenge in respect of the Judge's approach to the stage the Second Appellant's education had reached. It is clear from the Second Appellant's witness statement dated 30 June 2016, at paragraphs 4-7, that he gives a detailed account of where he was in terms of his education and what his hopes were for the future. The reality was that he was, at the date of the hearing before the First-tier Tribunal, embarked upon his 'A' levels: he was in the first year of those 'A' levels approaching what is now known as the 'AS' level examinations, and was hoping thereafter to complete the 'A2' examinations in May or June 2017. It was his ambition thereafter to utilise his 'A' level results as a foundation for pursuing a university education.

20. The evidence of the Second Appellant in this regard is picked up and echoed in the Skeleton Argument that was before the First-tier Tribunal. (The Skeleton Argument is referenced, albeit only in passing and without any detailed consideration, at paragraph 26 of the First-tier Tribunal Judge's decision.) Paragraph 22 of the Skeleton Argument refers to the Appellant's age and then states that he is "currently studying for his AS Level examinations? and will sit his A-Level examinations in 2017. Removal from the United Kingdom at this stage would cause immeasurable disruption to his studies." I interject to emphasise 'at this stage'. The Skeleton Argument continues: "This in turn will then negatively impact upon his desire to progress to university and may well have lasting negative effects on his future".

21. On any reading it is abundantly clear that in very considerable part the Second Appellant's case was being advanced on the basis that a disruption to his 'A' level studies would be an unreasonable and disproportionate step such that his removal from the UK was not appropriate at the present time.

22. The Judge, however, at paragraph 35 in my judgment completely fails to engage with this submission, and indeed completely fails to engage with this submission at any other part of his Decision. The Judge makes references to the Appellant being about to commence his university education (at paragraph 35) and compounds this misconception by referring to continuing his university education (at paragraph 37). This is to deny the essence of the case: that the Appellant was concerned to complete his 'A' levels before he could even embark upon a university education. In my judgment there is a significant and material difference between the circumstances of somebody who has completed their 'A' levels and is contemplating their next step as to whether to take tertiary education (and if so where and in what subject), compared to somebody who is in the middle of 'A' levels and wishes to continue to at least complete those 'A' levels before contemplating where the results may take them next. The key element being advanced on behalf of the Appellant here was the disruption to those 'A' level studies. That, as I say, does not appear on its face to have been recognised by the First-tier Tribunal Judge, far less engaged with by the Judge.

23. In those circumstances I find that there is a material misconception of facts amounting to a material error of law. I also find that there is a material error of law in that the key element of the case was not addressed, or dealt with by way of reasoning, by the Judge. These circumstances alone are sufficient to warrant the setting aside of the decision of the First-tier Tribunal.

24. I should add that there is a further significant concern in that the Judge appears to have made no independent assessment of the best interests of the Second Appellant - that is to say independent of any other considerations of 'reasonableness' or 'proportionality'. Indeed Mr Singh, on behalf of the Secretary of State, having heard the careful submissions of Ms Harris in this regard very fairly acknowledged that it is not possible to point to anything in the decision that demonstrates an appropriate assessment of the Second Appellant's best interests.

25. The errors in respect of the Second Appellant are material to an evaluation of the First Appellant's circumstances, and accordingly the decision in respect of the First Appellant is thereby 'infected' by error of law.

26. The decisions of the First-tier Tribunal are vitiated for error of law and are set aside.

27. I turn my mind to the question of re-making the decisions in the appeal, and the extent to which any findings of fact might be preserved.

28. Ms Harris invited me initially to consider remitting the appeals for a new hearing before a different First-tier Tribunal Judge which would permit an opportunity to revisit some of the adverse credibility findings, in particular in respect of the relationship with the First Appellant's husband, (the Second Appellant's father). After hearing submissions from both representatives and careful consideration, it seems to me that whatever way one looks at this case it is really about the Second Appellant's circumstances, and to that extent the issue as to the whereabouts of the father seems to me to be of only the most marginal consideration. Revisiting that issue does not seem to me to be likely to advance the substance and merits of the Second Appellant's case in any significant or material way. In the circumstances I am content that it is appropriate to remake the decisions before the Upper Tribunal on the basis of the evidence available, and indeed without needing to go into any particular detail about some of the more controversial fact-finding of the First-tier Tribunal Judge.

29. In considering, then, the circumstances of the Appellants, it seems to me that with all due respect the First Appellant does not have a case with any substantial individual merits. Little beyond her relationship with her brother has been advanced in respect of her private life in any of the evidence, and as I said earlier the focus has very much been upon the circumstances of the Second Appellant. The mother's case is essentially contingent upon the success or failure of her son's case.

30. The Second Appellant has been able to update me today as to the developments in his education since the date of the hearing before the First-tier Tribunal. He sat four papers at 'AS' level, achieving grade C in mathematics and economics. He scored a grade D in biology and was awarded an E grade in his government and politics paper. He has now advanced to the next academic year and has dropped the government and politics paper and is pursuing 'A' levels in economics and biology with a view to sitting those exams in or about May or June of this year. As regards his mathematics he is retaking the 'AS' year and anticipates sitting again an 'AS' paper in May or June of this year, and then taking the 'A2' paper in May or June 2018. He has not put in any applications for university at this time in large part because of his uncertain immigration status; in circumstances where he is hoping to complete his maths 'A' level in June 2018 he would not be looking to apply for university until the applications for entry in September/October 2018.

31. Turning first of all to the question of 'best interests', I really have little hesitation in reaching the conclusion that it would be significantly contrary to the Second Appellant's best interests if his current 'A' level studies - and by that I mean specifically the two subjects in respect of which he expects to sit 'A2' papers later this year - were to be interrupted. I find that it is in the Appellant's best interests to remain in education in the UK, pursuing those studies and necessarily, as part of that, it would be in his best interests that his mother also be permitted to remain as his primary carer in the United Kingdom during such period. Indeed Mr Singh again very fairly did not seek to raise any counter-argument in respect of best interests.

32. 'Best interests', of course, are not in and of themselves determinative but a relevant factor to take forward into an overall consideration under Article 8.

33. I also bear in mind that in an Article 8 case assistance may be drawn from the 'proportionality' balance struck by any analogous Immigration Rule: the 'best interests' represented by the desirability of the Second Appellant being permitted to complete his 'A' level studies up until May or June of this year, in my judgment significantly informs - or would in an appropriate case significantly inform - a consideration of 'reasonableness' pursuant to paragraph 276ADE(1)(iv).

34. Although this is an appeal based on Article 8 grounds rather than a ground of 'not in accordance with the Immigration Rules', with reference to the Rules Ms Harris draws my attention to the fact that within four days of today's hearing the Second Appellant will have reached the age of 18 and will have spent at least half his life living continuously in the UK. (The Appellant will indeed be 18 on 30 January of this year; he arrived in the United Kingdom in January 2008 - i.e. 9 years ago.) This will engage the terms of paragraph 276ADE(1)(v), and under that provision there is no additional 'reasonableness' test - it is sufficient to engage the provision that the relevant periods of time be satisfied.

35. These matters taken together - the desirability of the Appellant being allowed to complete his current A2 papers being a matter that would significantly and favourably inform any 'reasonableness' test under the Rules, and his imminent satisfaction of the proportionality measure of paragraph 276ADE(1)(v) - are powerful indicators that the Appellant satisfies the expectations of proportionality demonstrated by the Secretary of State's Rules.

36. I must consider whether there are other countervailing factors with reference to section 117B of the 2002 Act (as amended), and otherwise in all the circumstances of the case.

37. In this regard I note that immigration control exists in part for the very purpose of protecting the public interest in ensuring that public services are not consumed by those who would otherwise not be entitled to them. The conduct on the part of the parent, the First Appellant - or indeed given the findings of Judge Khan perhaps the conduct of the parents - is, pursuant to the words of the First Appellant that I have already quoted, very much motivated by a wish to secure an education for the Second Appellant to which the Second Appellant would not be entitled if he was not unlawfully present in the UK as an overstayer. I also take into account - consistent with the findings of the First-tier Tribunal Judge which in all the circumstances I consider to be reasonable in this regard - that there appears to be a cynicism on the part of the First Appellant (and indeed perhaps also on the part of her husband) in that the application for variation of leave was made 7 years and 9 days after the Second Appellant's arrival, i.e. within days of the Second Appellant completing 7 years in the United Kingdom. It seems to me that the deliberate overstaying and the timing of the application point to a calculated ploy to make best use of the immigration system. Such an approach strikes at the heart of the effectiveness of the system of control. The only thing in my judgment that might reasonably be said in this regard on the Second Appellant's behalf is that this is in no way his fault even if he is the direct beneficiary. Even then it seems to me that that the fact that it is not his fault is not a positive factor so much as a neutral factor. That said, and as I have already observed, it does seem to me that the disruption to the Second Appellant's education would now be very significant.

38. During submissions some time was spent discussing the impact of the case of Patel [2013] UKSC 72 on the circumstances of the Appellant's case, and in particular the observations made therein at paragraph 57 in respect of Article 8 and education. Paragraph 57 states:

"It is important to remember that Article 8 is not a general dispensing power. It is to be distinguished from the Secretary of State's discretion to allow leave to remain outside the rules which may be unrelated to any protected human right. The merits of a decision not to depart from the rules are not reviewable on appeal: section 86(6). One may sympathise with Sedley LJ's call in Pankina for 'common sense' in the application of the rules to graduates who have been studying in the UK for some years?. However, such considerations do not by themselves provide grounds of appeal under article 8, which is concerned with private or family life, not education as such. The opportunity for a promising student to complete his course in this country, however desirable in general terms, is not in itself a right protected under article 8."

39. I bear in mind the observations in the case of Patel were made in the context of a person who had entered the UK as a student - and indeed as an adult student - for a relatively limited period of study and who was not advancing any other basis for remaining in the UK beyond study. On the facts here I am concerned with an individual who is still, albeit only just, a child and has been in the United Kingdom for a very considerable period of time. Moreover it is to be noted that the provisions of paragraph 276ADE in respect of children who have been in the United Kingdom for a period of 7 years, or somebody who has turned 18 having been present for more than half of his/her life, do not suggest that the notion inherent in many such cases that the applicant will be continuing in education defeats the availability of an Article 8 remedy. It is clear that the length of time resident in the UK becomes a significant factor in such cases because it carries with it an assumption about private life established in that time; further the public interest in such cases is tempered with a recognition of the potential disruptive impact in removing children and young adults who have spent significant periods in the UK (including in school education). It seems to me that the essence of the Second Appellant's case, whilst focused specifically on his ambition to complete his A levels and proceed to university, necessarily also involves an element of private life beyond the mere completion of class work; it inherently includes an element of the normal sort of relationships that any child builds up during the course of a secondary education.

40. Accordingly I am not minded to the view that the focus on education in this case is of such an extent that, by approximate analogy to what is said in Patel, Article 8 cannot be engaged. It seems to me that Article 8 plainly is engaged both by the analogous reference to paragraph 276ADE and as a matter of commonsense in all of the circumstances of the Second Appellant's case. As I have said, I find the level of disruption to be significant and in my judgment, notwithstanding the adverse features of the immigration history (which is not the direct responsibility of the Second Appellant) I reach the conclusion that it would indeed be disproportionate to expect the Second Appellant to quit the UK at the present time.

41. For the avoidance of any doubt: I accept, with reference to Razgar, that the first and second questions must be answered in his favour; there does not seem to be any specific issue in respect of the third and fourth Razgar questions; as regards the fifth Razgar question, I find in the Second Appellant's favour.

42. For the reasons that I have averted to in respect of the best interests of the Second Appellant, and also because of the plain and obvious family life that exists between mother and son, it seems to me that it follows as a matter of course that the First Appellant should also succeed on her appeal 'in line' with her son.

43. I should emphasise that my conclusions in this regard accord very significant weight to the specific point that we find ourselves in respect of the Appellant's 'A' levels. I do not suggest that the Appellant has demonstrated a quality of private life outside school life that requires that he perhaps be allowed to remain in the UK indefinitely. In this latter regard whilst I have accorded weight to private life beyond mere study I have done so by way of analogy and presumption (as per the Rules) and in the absence of any significant supporting evidence as to actual private life interests and friendships: it is very much the disproportionate nature of interrupting his A level studies that has weighed greatly in the balance. The manner in which the bases of my decision should impact upon the type and period of leave to be granted to the Appellants is not a matter for the Tribunal; and indeed what might happen thereafter in the event of an application for further leave is a matter to be considered in all of the circumstances at the relevant time. In considering what period of leave should be granted in consequence of the appeals being allowed, the Secretary of State may wish to have regard to the matter emphasised by Ms Harris - that by 30 January 2017 the Appellant would on the face of it appear to satisfy the requirements of paragraph 276ADE (subject to the requirement to have made an application under that paragraph). Or the Secretary of State may decide to grant only a limited period of leave to take the Second Appellant to the completion of his current A2 papers. But as I say, these are not matters for me. I merely allow the appeal pursuant to Article 8 of the ECHR and leave the question of what grant of leave is appropriate to the Secretary of State - and bearing in mind that it is open to the Appellant to make representations in that regard.

Notice of Decisions

44. The decisions of the First-tier Tribunal contained material errors of law and are set aside. I remake the decisions in the appeals.

45. The appeals are allowed

46. No anonymity direction is sought or made in respect of either Appellant.

The above represents a corrected transcript of an ex tempore decision given at the completion of the hearing.

Signed: Date: 9 February 2017

Deputy Upper Tribunal Judge I A Lewis

TO THE RESPONDENT
FEE AWARD

Because I have allowed both of these appeals I make a full fee award on the basis that the Appellants have succeeded on their appeals.

Signed: Date: 9 February 2017

Deputy Upper Tribunal Judge I A Lewis
qua a First-tier Tribunal Judge