Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/27361/2015
IA/27365/2025
IA/27367/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 November 2016
On 2 December 2016

Before

UPPER TRIBUNAL JUDGE KING TD

Between

N A K
Y A K
R N K
(ANONYMITY DIRECTION MADE)

Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Ms.D.Ofei-Kwatia, of Counsel, instructed by BWF Solicitors
For the Respondent: Mr.I.Jarvis, Senior Home Office Presenting officer

DECISION AND REASONS

1. The appellants are citizens of Ghana. The first named appellant is the mother of her son born on 23 November 2000 in Ghana and a daughter born on 17 March 2007 in the United Kingdom.

2. The first appellant and her then husband came to the United Kingdom in May 2004, he to study and she as his dependant.

3. In 2010 the family left the UK and he applied to enter as a post-study worker and they as his dependants. He re-entered the United Kingdom in September 2010 in that capacity. Significantly it was noted that the first named appellant stated at the hearing that at point she had no intention of returning to Ghana as she wanted to bring her children up in the United Kingdom.

4. In March 2011 the first appellant and her husband were divorced but he has formed a new relationship with an EEA citizen and has an EEA residence card until November 2017. Although he no longer lives with the appellants he keeps in regular contact with them and sees them on a very regular basis. He has a good relationship with his children and plays an important role in their lives.

5. Essentially the appellants had valid leave until 17 August 2012 but not beyond. Application for leave to remain made in April 2014 was refused in May 2015. The appellants made a further application which was refused on 27 May 2014.

6. A subsequent application for leave to remain on the basis of private and family life was made which was refused on 22 July 2015. It was considered that the appellants did not meet the Immigration Rules and there were no compelling circumstances which rendered removal disproportionate.

7. The appellants mounted an appeal against that decision, which appeal came before First-tier Tribunal Judge Alis on 7 June 2016. The appeal was dismissed in all aspects.

8. The appellants now seek to appeal against that decision, contending that it is fundamentally flawed by reason of error of law. Permission was granted to do so on one ground. Thus the matter comes before me to determine the issues.

9. The central issue in the appeal under the Immigration Rules, given that the third appellant had acquired seven years in the United Kingdom is "and it would not be unreasonable to expect the appellant to leave the United Kingdom".

10. It was common ground that if she succeeded in showing that a return to Ghana would be unreasonable then her mother could bring her claim under Section EX1 of Appendix FM. Although the second appellant had no specific claim under the Immigration Rules, he was still a minor and his mother the primary carer for him in the United Kingdom so he too would remain.

11. It is a detailed determination and focuses clearly upon the important issue as to what is reasonable particularly relating to two minor children whose best interests are a primary consideration. The Judge directed himself to the case of Azimi-Moayed and Others (Decisions affecting children; onward appeals) [2013] UKUT 00197 and PD and others (Article 8 : conjoined family claims) Sri Lanka [2016] UKUT 108 (IAC).

12. In paragraph 30 of the determination in particular the Judge, by reference to the case of Azimi-Moayed, sets out factors the Judge should have regard to when considering the interests of children. The Judge specifically reminds himself of the obligations under Section 55 of the 2009 Act.

13. The first submission made to me by Miss Ofei-Kwatia, who represents the appellants, is that the Judge failed to pay particular regard to what the children had to say was in their best interests. She relies upon the decision in the High Court of Justice of Tinizaray [2011] EWHC 1850 (Admin). She relies in particular upon letters written by the children at D1 and D13. She submits that they were not taken into account in the overall assessment.

14. I find there is little merit in that contention. The first letter is from the third appellant saying that she does not want to go and live in Ghana because it is too hot and full of mosquitoes and that she will miss her big family and her friends and her Sunday school and her community activities. The other letter is from her brother who did not like Ghana because of the threat of malaria. He enjoys his school in the United Kingdom and its sporting activities and the certificates which he receives. He states that the education system is better than in Ghana and that he has got most of his friends and relatives in the United Kingdom.

15. It is abundantly clear from the determination that those factors were very much in the mind of the Judge. In paragraph 32 he quotes the positive school reports, specifically the reasons given in the letter of the second appellant not wanting to go back. There are letters of support from relatives and friends. The family, church and language are all matters looked at so far as the second appellant is concerned.

16. Perhaps understandably the Judge concentrated considerable detail upon the third appellant, recognising the relevance of her having accrued seven years in the United Kingdom. The Judge dealt with the issue of language and with education. It was noted that Ghana had a full education system. The Judge noted the arguments advanced that the third appellant was doing well in school and that it would be unreasonable to remove her from an environment in which she was thriving. The good relationship between the father and the children was also considered.

17. At paragraph 38 in particular the Judge takes account of a number of specific matters affecting particularly the third appellant.

18. It is entirely clear that the Judge has considered all relevant aspects in assessing the best interests of the two children and the facts which they had sought to advance in support of their stay.

19. On the wider canvas the Judge also noted the evidence of the first appellant and her family situation and the circumstances, in particular that although many of the extended family live in the United Kingdom, there were still the parents in Ghana albeit her father confined to a wheelchair. Employment and language were also considered at paragraph 14.

20. Having considered all matters the Judge came to the conclusion that it would not be unreasonable to expect the third appellant to leave the country and therefore that the appellants did not meet the Immigration Rules. In those circumstances the issue of proportionality fell to be considered outside of the Rules, particularly in the light of Section 117B of the 2002 Act as inserted by the Immigration Act 2014 those factors were also set out in the decision.

21. Miss Ofei-Kwatia submits that the approach to reasonableness is erroneous given that at no stage has the Judge identified why it is in the best interests of the children that they leave the United Kingdom as opposed to remain in the United Kingdom. She submits that as a matter of logic it is entirely in the best interests of the children that they remain. The Judge has failed to indicate why they should leave.

22. It is to be recognised that the best interests of the children is a primary consideration but not the only consideration. Interests of immigration control and the public policy fall to be considered, particularly those as set out in Section 117B and under the Immigration Rules. The focus of attention therefore is not one of the reasons why they should stay but to consider the reasonableness of their leaving the United Kingdom.

23. This matter was considered in some detail by the Court of Appeal in the case of MA and Others [2016] EWCA Civ 705. It was noted in paragraph 54 of the judgment

"There is nothing intrinsically illogical in the notion that whilst the child's best interests are for him or her to stay, it is not unreasonable to expect him or her to go. That is so even if the reasonableness test should be applied so as to exclude public interest considerations bearing upon the parents."

24. It is stressed in paragraph 57 that

"it is vital for the court to have made a full and careful assessment of the best interests of the child before any balancing exercise can be undertaken. If that is not done there is a danger that those interests will be overridden simply because their full significance has not been appreciated. The court must not treat the other considerations as so powerful as to assume that they must inevitably outweigh the child's best interests whatever they might be, with the result that no proper assessment takes place"

25. It seems to me that in this case the Judge has made a careful consideration of the best interests of the children, weighing up with care those factors which support their remaining in the United Kingdom and balancing those with what life they would experience upon return. The question to be asked is not should they remain but rather but rather whether it is unreasonable having regard to all the factors for them to leave having regard to the context of the family situation as a whole.

26. Permission to appeal to the Upper Tribunal was granted on the basis of the relationship which they have with their father. He is not the primary carer but it is clearly accepted in the determination that he enjoys an important role with his children. The appellants also enjoy not only a relationship with him but with his daughter as well. The Judge clearly recognised that it was in the best interests of the children to be brought up by both parents and addressed the issue clearly at paragraph 52, particularly having regard to EV (Philippines) [2014] EWCA Civ 874. Removal would prevent the level of contact currently enjoyed between the second and the third named appellants with their father but would not prevent family life continuing with him albeit on a different basis. It is to be noted that he is also from Ghana but that communicating could be continued by a number of means particularly that of visits.

27. Miss Ofei-Kwatia submits that the Judge has fundamentally misunderstood the nature of the family life that exists as between the children and their father. I do not find that to be the case having regard to paragraph 36 of the determination, as read with paragraph 42 and 52. The children will be returning to Ghana with their mother who is the primary carer for them as a family unit. There is little reason to believe that communication and contact with the father would be impeded albeit it would be a contact in a different way.

28. I find that it is clear, in the detailed determination, that the Judge has sought to pay careful regard to the interests of all the three appellants and indeed to the father in the matter, balancing their interests and their concerns. The Judge has conducted the reasonableness consideration in accordance with MA and has sought to balance proportionality in a proper manner with due deference to the immigration control, the public interest of removal and the interests of the children. There is no evidence in this particular case, as advanced, that absence from the father will cause any emotional or physical or educational detriment to the children. They are seemingly well adjusted to the education in the United Kingdom and it was the view of the Judge that they could readily adjust to education in Ghana. All relevant matters were looked at and a proper assessment made in the round.

29. In all the circumstances the appellants' appeal against the decision of the first-tier Judge is dismissed. The decision of the First-tier Tribunal Judge shall stand, namely that the appellants' appeals under the Immigration Rules are dismissed and their appeals under Article 8 ECHR are also dismissed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

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. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 1 December 2016

Upper Tribunal Judge King