Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number:
IA/27632/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision Promulgated
On: 17th January 2017
Sent On: 30th January 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

The Secretary of State for the Home Department

Appellant
And

IA
(Anonymity direction made)
Respondent

For the Appellant: Mr Kotas, Senior Home Office Presenting Officer
For the Respondent: Mr Smith, Kesar & Co Solicitors

DETERMINATION AND REASONS

1. The Respondent is a national of Bangladesh born in 2001. On the 3rd July 2016 the First-tier Tribunal (Judge Housego) allowed his appeal on human rights grounds. The Secretary of State now has permission to appeal against that decision, granted by First-tier Tribunal Chohan on the 6th December 2016.

Anonymity Order

2. The Respondent is a minor. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I consider it appropriate to make an order in the following terms:

"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 his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings"

Error of Law

3. The case before the First-tier Tribunal was that (the Respondent to this appeal) IA was a child who had lived in the United Kingdom for a continuous period of ten years. As such he was a 'qualifying child' as defined in s117D of the Nationality, Immigration and Asylum Act 2002. The focus of the appeal was whether it would be "reasonable" to expect him to now leave the United Kingdom. If it would not, then IA would succeed on human rights grounds with reference to paragraph 276ADE(1)(iv) of the Rules.

4. In considering that question the Tribunal had regard to a good deal of jurisprudence concerning the welfare of the child. It had regard to the fact that when IA started at school in London he had never been to school before. He had learned English quickly and prospered. He has done well in academic terms and is sitting his GCSEs this year. He has had no real exposure to Bengali culture and speaks only a little of the language, which he cannot read or write at all. He had occasional telephone contact with his grandmother in Bangladesh but apart from that no connection with that country. When IA gave evidence he said that he was very nervous about the prospect of living there. He did not really understand his grandmother when they spoke. The Tribunal considered that all of this evidence pointed to an established private life in the United Kingdom. Although reference is made to the Secretary of State's submissions, and to sections 117A-D of the 2002 Act, it is not clear what weight if any these matters were given. The appeal was allowed on the basis that it would not be reasonable to expect this child to leave the United Kingdom today.

5. Four days after the determination was promulgated the Court of Appeal handed down judgement in MA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 705. Therein the court, albeit reluctantly, accepted the Secretary of State's argument that in determining what 'reasonable' means, express regard must be had to the public interest, as expressed inter alia at ss117B (1)-(5).

6. I am satisfied that this is not the approach taken by the Tribunal in this case. It follows that the determination contains an error of law and the decision must be set aside.

The Re-Made Decision

Legal Framework

7. The parties were in agreement that the only possible rule under which the Appellant might succeed was 276ADE(1)(iv):
276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK.

8. Section 19 of the Immigration Act 2014 inserted a new Part 5A into the Nationality Immigration and Asylum Act 2002. For the purposes of this appeal the key provision in Part 5A is s.117B:

117B Article 8: public interest considerations applicable in all cases

(1) The maintenance of effective immigration controls is in the public interest.

(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English-

(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.

(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-

(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.

(4) Little weight should be given to-

(a) a private life, or
(b) a relationship formed with a qualifying partner,

that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.

(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where-

(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.

9. It is, for the moment at least, the position that this framework is to be interpreted as follows. Decision-makers must have regard to all of the factors listed at s 117B (1)-(5) when assessing Article 8 claims, but in cases where the adult applicant can show both limbs of sub-section (6) to be satisfied, an appeal must succeed on Article 8 grounds: Treebhawon and Ors (section 117B(6)) [2015] UKUT 674 (IAC), MA (Pakistan) [at 14-20]. The questions of 'reasonableness' at paragraph 276ADE(1)(iv) and section 117B(6) are the same question. In determining 'reasonableness' regard must be had to the public interest as expressed at s117B(1)-(5). Regard must also be had to the Secretary of State's own policy on what the provisions mean.

10. The genesis of the 'seven year' provision was the concession known as DP5/96. That policy, and those which followed, created a general, but rebuttable, presumption that enforcement action would "not normally" proceed in cases where a child was born here and had lived continuously to the age of 7 or over, or where, having come to the United Kingdom at an early age, 7 years or more of continuous residence had been accumulated1. Although there have been shifts and amendments to this policy over the years, the government has consistently maintained that a residence of at least 7 years duration is a significant benchmark. As the policy statement2 which accompanied the introduction of paragraph 276ADE (1)(iv) puts it: "a period of 7 continuous years spent in the UK as a child will generally establish a sufficient level of integration for family and private life to exist such that removal would normally not be in the best interests of the child" [my emphasis]. The current guidance reaffirms that this is the starting point for consideration of the rule. The Immigration Directorate Instruction 'Family Migration: Appendix FM Section 1.0b Family Life (as a Partner or Parent) and Private Life: 10-Year Routes' ("the IDI") gives the following guidance:
11.2.4. Would it be unreasonable to expect a non-British Citizen child to leave the UK?
The requirement that a non-British Citizen child has lived in the UK for a continuous period of at least the 7 years immediately preceding the date of application, recognises that over time children start to put down roots and integrate into life in the UK, to the extent that being required to leave the UK may be unreasonable. The longer the child has resided in the UK, the more the balance will begin to swing in terms of it being unreasonable to expect the child to leave the UK, and strong reasons will be required in order to refuse a case with continuous UK residence of more than 7 years.
The decision maker must consider whether, in the specific circumstances of the case, it would be reasonable to expect the child to live in another country.
The decision maker must consider the facts relating to each child in the UK in the family individually, and also consider all the facts relating to the family as a whole. The decision maker should also engage with any specific issues explicitly raised by the family, by each child or on behalf of each child.
11. This reflects ministerial statements on the matter. The Hansard record of the debate in the House of Lords on the introduction of section 117B(6) (in the Immigration Act 2014) sets out the government's thinking on the significance of the seven year mark, as explained by then Home Office Minister Lord Wallace of Tankerness:

"we have acknowledged that if a child has reached the age of seven, he or she will have moved beyond simply having his or her needs met by the parents. The child will be part of the education system and may be developing social networks and connections beyond the parents and home. However, a child who has not spent seven years in the United Kingdom either will be relatively young and able to adapt, or if they are older, will be likely to have spent their earlier years in their country of origin or another country. When considering the best interests of the child, the fact of citizenship is important but so is the fact that the child has spent a large part of his or her childhood in the United Kingdom"3.

12. All of this guidance recognises that after a period of seven years' residence a child will have forged strong links with the UK to the extent that he or she will have an established private life outside of the immediate embrace of his parents and siblings. It is that private life which is the starting point of consideration under this Rule. The relationships and understanding of life that a child develops as he grows older are matters which in themselves attract weight. The fact that the child might be able to adapt to life elsewhere is a relevant factor but it cannot be determinative, since exclusive focus on that question would obscure the fact that for such a child, his "private life" in the UK is everything he knows. That is the starting point, and the task of the Tribunal is to then look to other factors to decide whether, on the particular facts of this case, these displace or outweigh the presumption that interference with that private life will normally be contrary to the child's best interests. Those factors are wide-ranging and varied. The IDI gives several examples including, for instance, the child's health, whether his parents have leave, the extent of family connections to the country of proposed return. As I note above, in MA (Pakistan) Elias LJ accepted that it must also encompass matter pertaining to the family as a whole, including the factors at s117B(1)-(5) as they relate to the parents. The assessment of what is "reasonable" will call for the Tribunal to weigh all of these matters into the balance and to see whether they constitute "strong reasons" - the language of the current IDI - to proceed with removal notwithstanding the established Article 8 rights of the child in the UK.

Findings of Fact

13. The Secretary of State has identified the primary countervailing factor in this case as being the fact that no member of this family currently has any leave to remain. It is not in issue that IA has lived in this country since May 2006. When he came here he did so with leave, as his father was then a Points Based System Migrant. It would seem that the family had lawful leave until September 2012. At that point they became overstayers. The application that finally led to the present proceedings was made in September 2013. I am bound, by the terms of s117B(1), to recognise that it is in the public interest that persons with no right to remain under the Rules are removed.
14. IA speaks fluent English. It is in the public interest that persons who seek leave to remain do so, because this aids integration and means that they are less likely to become a burden on the taxpayer.

15. IA is not financially independent, and this is a matter that I am bound to have regard to. I also bear in mind that he is a child, who can have had very little say about where the household income comes from.

16. He relies on a private life which was established when his status was precarious or unlawful and as such I am bound to attach little weight to it. However I also bear in mind that this was a private life established when IA was a child with no control over where he was living. I expect that he would, in listening to his teachers and making friends, be entirely unaware that his status was "precarious" or otherwise. That a child's private life is in these circumstances a matter attracting considerable weight is recognised not just by the Secretary of State's own policy, but by the jurisprudence: see for instance Miah (s117B - children NIAA 2002) [2016] UKUT 131.

17. I also bear in mind the apparent concession by IA's parents that they would not be able to show there to be "very significant obstacles" to their integration in Bangladesh. Mr Kotas highlighted the First-tier Tribunal's finding that both parents speak fluent Bengali, continue to have cultural ties with their country of nationality and have at least some relatives there. IA's father is educated and resourceful and could be expected to work. There are schools available in Bangladesh.

18. I have considered all of those matters in the round. My starting point is the fact that IA has lived here for 10 years. As such he has put down roots here and it would not normally be in his best interests to disrupt his education, friendships and stability. I weigh against that established private life the fact that his parents do not have leave to remain, and have not done so since 2012. That is a matter of some significance. It cannot however be determinative. I have also borne in mind that IA could, albeit it with some hardship and difficulty, re-establish his private life outside of the United Kingdom. Neither of those factors, taken in isolation or cumulatively, is capable of amounting to "strong reasons" not to grant him leave to remain. I find that it would be unreasonable to expect IA to leave the United Kingdom today. He qualifies for leave to remain under paragraph 276ADE(1)(iv) of the Rules and his appeal must therefore be allowed on human rights grounds (the decision under that provision being deemed by the Secretary of State to be a 'human rights decision').

Decisions

19. The determination of the First-tier Tribunal contains an error of law and it is set aside.

20. I remake the decision in the appeal as follows:

"the appeal is allowed on human rights grounds".

21. There is an order for anonymity.

Upper Tribunal Judge Bruce
27th January 2017