Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/28157/2015
IA/28163/2015
IA/28172/2016

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 1st December 2016
On 13th December 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SONEY [P]
JOSMI [L]
[N S]
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Miss G Patel (instructed by Amjad Malik, Solicitors)
For the Respondent: Mr G Harrison (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. This is an appeal to the Upper Tribunal, with permission, by the Secretary of State. However, for the sake of continuity and clarity I shall continue to refer to the Secretary of State as the respondent in this judgment.

2. This appeal concerns a Decision and Reasons of the First-tier Tribunal (Judge Henderson) promulgated on 9 May 2016 by which the appeals were allowed on the basis that the third appellant met the requirements of paragraph 276ADE (iv) of the Immigration Rules and the first and second appellants' appeals were allowed outside the Immigration Rules with reference to Article 8 of the ECHR.

3. Permission to appeal was granted on the basis that the Judge had attached too much weight to the fact that the third appellant is receiving the benefit of an education in the United Kingdom and further that if the first and second appellants were to be removed it would be reasonable to expect the third appellant to go with them.

4. Miss Patel argued that the Judge was entitled to reach the conclusion that she did; namely that it would be unreasonable for the child to return to India.

5. At the time that the Judge determined this appeal in the First-tier Tribunal she did so by assessing reasonableness focused solely on the child. Since that time the Court of Appeal has determined in MA (Pakistan) [2016] EWCA Civ 705 that approach to be incorrect. At paragraph 45 of that judgment Lord Justice Elias indicated that while he favoured an approach inconsistent with the very recent decision of the Court of Appeal in MM (Uganda) [2016] EWCA Civ 450, he found himself unable to depart from it and said in his judgment, "if the court should have regard to the conduct of the applicant and any other matters relevant to the public interest when applying the "unduly harsh" concept under section 117C(5), so should it when considering the question of reasonableness under section 117B(6)." He went on to say that he "recognised that the provisions in section 117C are directed towards the particular considerations which have to be borne in mind in the case of foreign criminals, and it is true that the court placed some weight on section 117C(2) which states that the more serious the offence, the greater is the interest in deportation of the prisoner. But the critical point is that section 117C(5) is in substance a freestanding provision in the same way as section 117B(6), and even so the court in MM (Uganda) held that wider public interest considerations must be taken into account when applying the "unduly harsh" criterion". He went on to say "it seems to me that it must be equally so with respect to the reasonableness criterion in section 117B(6). It would not be appropriate to distinguish that decision simply because I have reservations whether it is correct. Accordingly, in line with the approach in that case, I will analyse the appeals on the basis that the Secretary of State's submission on this point is correct and that the only significance of section 117B(6) is that where the seven-year rule is satisfied, it is a factor of some weight leaning in favour of leave to remain being granted."

6. On the basis that Judge Henderson assessed reasonableness from a child-centred point of view I find she made an error of law, albeit unwittingly given that MA (Pakistan) was not then promulgated. On that basis I set aside the determination only as concerns the assessment of reasonableness. There is no error in the Judge's factual findings and they are preserved.

7. I indicated, in accordance with the directions given by the Upper Tribunal, that I would proceed to redecide the appeal immediately. It was agreed that evidence would not be required, given the preserved findings, and I would deal with the matter on submissions. I allowed Miss Patel time to prepare her arguments.

8. Mr Harrison's submissions were brief, relying on the matters previously decided and he simply commented that whilst case law indicated that the position of the child must be given significant weight, it is not a trump card. Miss Patel argued strenuously that, based on the findings of Judge Henderson it was clearly unreasonable to expect the child to leave the UK.

9. I now turn to the factual matters of this claim. The appellants are husband and wife and their daughter, who was born in India on 7 April 2004. The appellants are all Indian nationals.

10. The first appellant entered the United Kingdom as a student on 3 May 2007 with a visa valid until 31 August 2008. He was then granted further leave until 30 November 2009. His wife and daughter entered as his dependents on 22 December 2008 and were granted leave in line with him. All three were then given further leave until 30 January 2012 as a student and dependents. On 20 January 2012 the appellants made further application for leave to remain on the basis of their human rights. That was refused and their appeals were dismissed. They became appeal rights exhausted on 5 March 2015.

11. On 16 March 2015 the appellants made a further application for leave on the basis of their private and family life in the United Kingdom. I pause at this point to note that the appellants have, save for that brief period between 5 and 16 March 2015, always had leave to remain in the United Kingdom either granted by the Secretary of State or under section 3C of the Immigration Act 1971.

12. It is now not in dispute that the adult appellants cannot succeed as partners under Appendix FM of the Immigration Rules as neither is a British citizen or settled in the UK and neither could they meet the requirements as parents given that they live together. Neither adult meets the requirements of paragraph 276 ADE as they have not been in the UK long enough.

13. The reality is that this case centres around the position of the third appellant child. She entered the UK on 22 December 2008 at the age of four years and eight months. At the date of decision she had been in the United Kingdom six years and at the date of the application she could not meet the requirements of paragraph 276 ADE. That paragraph of the Immigration Rules requires the child to have been in the United Kingdom for seven years at the date of the application. Indeed that indicates a further error of law by Judge Henderson who allowed the appeal in relation to the third appellant on the basis of paragraph 276 ADE. She could only satisfy the requirements of that Rule if she had been in the United Kingdom for seven years at the date of the application. The application was made in January 2012 when she had been in the United Kingdom four years. That leaves only a consideration of Article 8 outside the Immigration Rules. It was not suggested by Mr Harrison that I should not consider the matter outside the Rules and indeed, given that by the date of the hearing almost 4 years have passed since the date of application, it is clearly appropriate I should do so. It is also clear that this case is about proportionality, the final question identified in Razgar [2004] UKHL 27.

14. Although the child cannot meet the requirements of paragraph 276 ADE, when assessing proportionality under the ECHR outside the Immigration Rules I must consider the position as at the date hearing, namely in December 2016. The child has now been in the United Kingdom eight years. Section 117B of the Immigration and Asylum Act 2002 contains provisions which reflect paragraph 276ADE. Section 117A requires a Judge to take certain matters into account when assessing proportionality. Section 117B provides as follows:-

(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.

15. The first five subsections of section 117B are factors which, if they do not apply are to be taken against an appellant but if they do apply they are neutral.

16. The Upper Tribunal case of Treebhawon & Ors (section 117B(6)) [2015] UKUT 00674 (IAC) tells us that section 117B(6) provides a complete answer and if it applies appellants are entitled to succeed.

17. Judge Henderson did not accept there were any risks to the appellants in India. She considered the claims that they would be at risk on account of their real or imputed religious beliefs and dismissed that claim. Judge Henderson referred to a previous Judge's determination in relation to their earlier asylum claim and noted that the appellant had given evidence that his daughter had minimal knowledge of their native language, Malayalam. He said that the appellant's evidence was evasive and inconsistent. The same issue with regard to the child's inability to speak the native language was raised before Judge Henderson and she did not accept that she was completely ignorant of her parents' language. She noted that the third appellant had lived with her parents in India until the age of four years and eight months and that Malayalam is the first language of the parents and she concluded, reasonably, that Malayalam would be the language used at home from the appellant's birth and therefore she inevitably would be able to speak it. It was acknowledged by Judge Henderson that of course the third appellant speaks English in school and that is now her preferred language. That is not equivalent to having no knowledge of Malayalam, although she has been educated entirely in the UK thus far. The Judge accepted that the child would have difficulties in readjusting to life in India for a number of reasons. She has spent the whole of her primary schooling in the UK and has enjoyed a public education through the English system for the most part while her parents were legally resident. She has made friends in the UK and enjoys extracurricular activities such as dancing, drama and martial arts. Her school attendance record is excellent and she has high ambitions for the future. She has never visited India since she was four and therefore has no close friends there.

18. However, the Judge did not accept that the child could not adjust to the education system in India, although she acknowledged that it would be difficult for her having never previously experienced the system. The Judge concluded that it would not be in the child's best interests to leave the United Kingdom. It was not simply a matter of education but also friendships and relationships and activities which formed her private life would be disrupted and India is a society and culture, values, norms and language alien to her and the change would be emotionally stressful.

19. The judge expressed her concerns that the first and second appellants had exaggerated the difficulties they would face in India, for example suggesting that the child would be forcibly married to a Roman Catholic should they be returned and that he would be unable to protect her. The judge found this to be entirely without credibility.

20. The judge found the parents to be loving and supportive. The first appellant is well educated, having obtained additional qualifications in the UK. He is working as is his wife. She rejected their evidence that they will be unable to find employment in India. The judge also rejected claims that the first appellant's health prevented him from returning to India.

21. Taking into consideration the matters I am required to by section 117B the first Judge found that all three appellants spoke English and were employed. The private life that the adults had built up in the United Kingdom had been whilst their status was precarious and so little weight should be given to their private life.

22. The crux of this matter is the situation of their daughter and whether it is reasonable to expect her to return to India.

23. I have no difficulty in finding that if I were considering only the best interests of the child, her best interests would be served by remaining in the UK however, that is not the determining factor.

24. The child has been in the UK for a period of eight years and all her education thus far has been in the UK and conducted in English. However, it is not the case that she does not speak the same language as her parents. It is not the case that an education in the English language is unavailable in India. Her father spoke English on arrival in the UK, a skill learned in India. It is not the case that the child is at a critical state stage of her education, she is 12 years of age.

25. The child, although she has been in the UK now for eight years, did spend the first four years of her life in India. I acknowledge of course that she will have very few memories of that time.

26. The child has no health issues preventing her living in India.

27. While the first and second appellants committed no offences and have at all times, save for a very short period, been lawfully in the UK, the fact is they currently have no basis on which they can remain.

28. There is considerable case law both in the United Kingdom and Europe about the importance of a child being entitled to live in the country of its nationality. The country of this child's nationality, heritage and culture and the country where any distant relatives will be is not the UK. In the same way as a British child is entitled to be brought up in the UK, an Indian child is entitled to be brought up in India and it would be quite wrong to suggest one is better than the other.

29. In terms of the upheaval for the child of returning to India, I find that this has been wildly exaggerated. Children are frequently uprooted by their parents either to other parts of the UK at great distance from where they currently live and have made their life and their friends or internationally. This might happen due to a breakdown in a relationship, parents' employment or simply as a matter of choice. It has never been suggested that to do this is a breach of the child's human rights. The only difference here is that the parents would prefer to remain in the UK. The parents did not consider the disruption to the child of removing her from her home country when they brought her to the United Kingdom and indeed because they are a loving and supportive family any disruption was managed; so will it be on return to India. The family will be returning to the country of their nationality. Any difficulties the child has can be managed through the love and support of her parents. Being highly educated, the father will be able to secure employment and in the same way as do all children who move homes she will make new friends, form new attachments and be able to enjoy extracurricular activities as she does in the UK.

30. For all of the above reasons I do not find that it would be unreasonable to expect the child to leave the United Kingdom. Accordingly, section 117B(6) does not apply and the appellants' appeals must be dismissed.

Decision

The Secretary of State's appeal to the Upper Tribunal is allowed and the appellants' appeals against the Secretary of State's decision is dismissed.

Signed Date 12th December 2016

Upper Tribunal Judge Martin