Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28157/2014

THE IMMIGRATION ACTS

Heard at Field House, London Decision & Reasons Re-promulgated
On the 5th May 2016 On the 10th April 2017

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY
Between:
MR ALBERT AGYEI-TWUM
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Miss Namani (Counsel)
For the Secretary of State: Mr Kotas (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is the Appellant’s appeal against the decision of First-tier Tribunal Judge S. Meah promulgated on the 8th October 2015, in which he dismissed the Appellant’s Human Rights appeal both under the Immigration Rules and under Article 8 outside of the Rules. The Appellant’s wife and 3 children were dependents upon that appeal.
2. Within his decision First-tier Tribunal Judge Meah did not accept that the Appellant or his wife met the requirements of paragraph 276ADE of the Immigration Rules and did not accept that they had lost their social and cultural family ties with Ghana.
3. The Judge found that it had been considered that the Appellant could not meet the requirements of Appendix FM, but the Judge found that there was not anything significant enough to cause him to depart from the Immigration Rules, which he considered were a complete code, but for the sake of completeness considered the Appellant’s claim under Article 8 outside of the Immigration Rules. The Judge in that regard found that it was in the best interests of the children to return to Ghana with their parents. He did not find that the claim regarding the children attending school in the UK lent any support to the Article 8 claim. He noted that the 2 older children had resided in the UK for more than 7 years and found that it was reasonable and in their best interests by keeping them together with their parents and their family unit be maintained as it currently stands and for them to be returned to Ghana as one unit. He took account of the fact that the youngest child was seeing a speech and language therapist, but found there was no evidence to show that any such conditions could not be treated in Ghana through specialists there. He further found that in respect of the friends the children had in the UK this in itself was again not sufficient to succeed under Article 8.
4. He further found that the family had family members in Ghana and that the Appellant, despite having come here to study as a foreign student had not achieved any formal qualifications during his lengthy period in the UK. He did not accept that the family or rights of the Appellant or members of the family were sufficient to mean that Article 8 would be breached and the decision to remove would be disproportionate to the legitimate public aim sought to be achieved. The Judge did take account of Section 117B of the Nationality, Immigration and Asylum Act 2002.
5. Within the Grounds of Appeal it is argued that the Judge’s approach to the Human Rights claim was flawed and that the Judge was wrong in finding at paragraph 20 that “Much was made by the Appellant and his wife regarding their children being in school in the UK and the fact that they were born here. This was put to me as being the core of the Appellant’s case. This may well be the case however I do not see that this can be said to be the basis of a private life claim.” and that at paragraph 21 the Judge went on to state “The Appellant and his wife always knew that they were here for temporary purposes hence I do not find that the circumstances give rise to a legitimate or sustainable Article 8 claim.”. It is argued that the Judge was applying too high a standard.
6. It was argued that the Judge failed to properly consider the best interests of the children when finding that they should return to Ghana since their parents would be returning with them and that the children were young enough to adapt to life in Ghana. Reliance is placed upon the Upper Tribunal decision in the case of EA (Article 8 – best interests of children) Nigeria [2011] UKUT 00315 and that a period of substantial residence as a child may become a weighty consideration in the balance of competing considerations, in that in the course of such time roots are put down, personal identities are developed, friendships are formed and links are made outside of the family and that although during a child’s very early years he or she will be primarily focussed on self and the caring parents or guardian, a long residence whilst the child is likely to have formed ties outside of the family is likely to have a greater impact on his or her wellbeing. It was argued that the age and length of residence of each child must be considered as well as their educational and special needs. It was argued that the Judge’s approach that irrespective of any private life each child would have, relocation would be reasonable because they were leaving with their parents is flawed. It is argued that the Judge failed to consider decisions such as Azimi-Moayed [2013] UKUT 197 in reaching his decision.
7. Permission to appeal has been granted by First-tier Tribunal Judge Landes on the 1st April 2016, who found that it was arguable that the Judge had erred in law in that his approach to the best interests of the children and that in particular it was arguable that as set out in paragraphs 11 and 12 he had in effect considered that it would be in the best interests for the children to leave the UK, simply because they would be leaving with their parents. She noted the recent decision in the case of PD and Others [2016] UKUT 108 which makes clear the type of factors that would be taken to account in respect of qualifying children and highlights that EV (Philippines) was not a case where child concern came within the 7 year qualifying period and further found that “nor was it a case in which Section 117B(6) of the 2002 Act was considered”. She found that the real question was the best interests of the children and whether it was reasonable to expect the 2 qualifying children to leave the UK having properly considered, but did not restrict the Grounds of Appeal.
8. It was on that basis the case came before me in the Upper Tribunal.
9. I have fully taken account of the submissions made by Ms Namani and Mr Kotas, as are recorded within the record of proceedings and I do make reference to the same as relevant, in my decision.
My Findings on Error of Law and Materiality
10. It was argued a by Mr Kotas on behalf of the Secretary of State that the Judge had made sustainable findings as to the best interests of the children and that the Appellant and his wife knew they were here for temporary purposes and that he had considered the youngest child’s learning difficulties and had noted how the 2 older children had resided in the UK for more than 7 years, but still considered that it was reasonable and in their best interests to keep them together as a family with their parents and for them to be returned as a family unit to Ghana.
11. However, in my judgement, the Judge’s finding at [20] that “Much was made by the Appellant and his wife regarding their children being in school in the UK and the fact they were all born here. This was put to me as being the core of the Appellant’s case. This may well be the case however I do not see how this can be said to be the basis of a private life claim” in my judgement clearly shows how the First-tier Tribunal Judge has fundamentally misunderstood the law in this case. Although the Judge refers to the case of EV (Philippines) and the finding of the Court of Appeal at paragraph 60 that “That is a long way from the facts of our case. In our case none of the family is a British citizen. None has the right to remain in this country. If the mother is removed, the father has no independent right to remain. If the parents are removed, then it is entirely reasonable to expect the children to go with them. As the Immigration Judge found it is obviously in their best interests to remain with their parents. Although it is, of course, a question of fact for the Tribunal, I cannot see that the desirability of being educated at public expense in the UK can outweigh the benefit to the children of remaining with their parents. Just as we cannot provide medical treatment for the world, we cannot educate the world”, and although the Judge noted that the 2 older children had resided in the UK for more than 7 years, he has not properly taken into account that the decision of the Court of Appeal in EV (Philippines) related to children who had not been in the UK for more than 7 years, or of the significance of that period in the balancing exercise.
12. Nor has the Judge taken account of cases such as Azimi-Moayed and Others [2013] UKUT 197. As was stated in that case, although as a starting point it is in the best interests of children to be with both parents and if both parents are being removed from the United Kingdom then the starting point suggests that so should dependent children who form part of their household unless there are reasons to the contrary, in that case the Upper Tribunal considered that it was genuinely in the interests of children to have both stability and continuity of social and educational provision and the benefit of growing up in the cultural norms of the society to which they belong and that lengthy residence in a country other than the state of origin can lead to development of social, cultural and educational ties that it would be inappropriate to disrupt, in the absence of compelling reasons to the contrary. The Upper Tribunal stated that “What amounts to lengthy residence is not clear cut but past and present policies have identified 7 years as a relevant period”. It was further stated that “Apart from the terms of published policies and Rules, the Tribunal notes that 7 years from age 4 is likely to be more significant to a child than the first 7 years of life. Very young children are focussed on their parents rather than their peers and are adaptable.”.
13. The Judge has not considered that lengthy residence in the UK by the older children may have led to the development of social, cultural and educational ties it would be inappropriate to disrupt and has not fully considered the extent of each of the two older children’s social, cultural and educational ties in order to determine whether it would be inappropriate to disrupt them in the absence of compelling reasons to the contrary. It is not simply the case that it is in the best interests of the children to keep the family together and for them to be returned to Ghana as one unit, without fully considering the children’s ties. The First-tier Tribunal Judge was wrong at paragraph 20 stating that the fact that the 2 older children who are in the UK are in school cannot be the basis of a private life claim. That is clear following cases such as Azimi-Moayed and the more recent case of PD and Others (Article 8 – conjoined family claims) Sri Lanka [2016] UKUT 00108 referred to by Judge Landes in the grant of permission to appeal.
14. At paragraph 37 of the Upper Tribunal’s decision in PD and Others, in respect of that particular Appellant the Upper Tribunal indicated various factors which had to be taken into account in considering whether or not it would be reasonable to expect a child who had been in the UK for more than 7 years to leave the UK including his education, the fact that it would involve him transferring into a society whose culture, values, norms and language were alien to him, the fact it would be highly stressful, and his age. The Judge in this case has simply considered the fact that as a family they would be returning as one unit, and assumed that that was all that needed to be said in respect of the best interests of the children, and has not fully considered whether or not the 2 older children have developed ties in the UK as a result of them being in the UK for more than 7 years which it would be inappropriate to disrupt. He has not given full and proper consideration in that regard to the family and private life of the 2 older children nor properly weighed that in the balance and not taken account of the fact that there may have to be compelling circumstances to disrupt the family and private life developed by the 2 older children given the time that they have been in the UK, if such ties whether in respect of the family life or private life are substantial.
15. The Judge has not considered fully the various school certificates for the Appellant’s children or the photographs of the Appellant’s children undertaking social activities contained within the bundle and has, in my judgement, failed to take account of relevant evidence in this regard. He has also set the bar too high by failing to take proper account of the effect of the 2 older children being in the UK for over 7 years and simply determined that the family would be returned as one unit and that therefore was in the best interests of the children. That is clearly contrary to the approach set out by the Upper Tribunal in the case of PD and Others.
16. Nor is there any reference within the decision to paragraph 117B(6) of the Nationality, Immigration and Asylum Act 2002, and again, this reinforces my judgement that the First-tier Tribunal Judge has failed to properly take into account the significance of the 7 years spent in the UK by the 2 older children.
17. Further, although the Judge referred to the Immigration Rules being “a complete code” in this case at paragraph [14] and that there was nothing before him which was significant enough to make him depart from the Immigration Rules, it is in fact clear that this was not a deportation case and therefore the Rules are not a “a complete code” and that the question as to the older children’s private lives was a factor which should have led the Judge in any event to go on to consider the case under Article 8 outside of the Rules, given that the children were dependents upon the Appellant’s claim. Although the Judge did consider the Article 8 claim outside of the Rules for the sake of completeness, for the reasons set out above, I consider that his approach in respect of doing so was flawed, and that his decision at [14] that there was nothing significant enough to make him department from the Immigration Rules and a simple consideration of the Appellant’s own case under paragraph 276ADE in circumstances where he had been in the UK less than 20 years and that he and his wife had spent the majority of their lives in Ghana and the Appellant had grown up and lived and worked there as did his wife who also undertook training as a seamstress, failed to take proper account of the private lives of the children, which should have been more carefully analysed outside of the Immigration Rules.
18. In my judgement, the decision of First-tier Tribunal Judge Meah in terms of his approach to the Article 8 claim did amount to a material error of law, as if the Judge had properly approached the issue, the decision may have been different. I therefore do consider that the decision of First-tier Tribunal Judge Meah should be set aside and the matter remitted back to the First-tier Tribunal for rehearing de novo before any First-tier Tribunal Judge other than First-tier Tribunal Judge Meah.

Notice of Decision
The decision of First-tier Tribunal Judge Meah does contain a material error of law and is set aside. The appeal is therefore allowed.
The appeal is remitted back to the First-tier Tribunal for rehearing before any First-tier Tribunal Judge other than First-tier Tribunal Judge Meah.

Signed

R McGinty
Deputy Judge of the Upper Tribunal McGinty Dated 5th May 2016