Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/28243/2011
IA/28246/2011

THE IMMIGRATION ACTS

Heard at UT (IAC) Hearing in Field House
Determination Promulgated
On 20th January 2014
On 27th January 2014

Before

DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD

Between

mr p a and mrs y a
(AnONYMITY ORDER MADE)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellants: Ms S Naik, Counsel instructed by Wilson Solicitors
For the Respondent: Mr S Walker, Home Office Presenting Officer

DETERMINATION AND REASONS

1. The Appellants are nationals of Ghana and are husband and wife. The first Appellant PA entered the United Kingdom lawfully on a student visa on 2nd July 1998 with leave to remain as a student until 2nd July 1999. Subsequent applications for leave to remain were granted. A further application for leave to remain as a student was refused with no right of appeal but an appeal was lodged on human rights grounds on 10th September 2009. PA sought leave to remain on the basis of his family life with his three children who are minors.
2. PA's spouse, their eldest child, R, and her daughter from a previous relationship, M, entered the UK on 28th May 1999 and they were granted leave to remain until 2nd July 1999.
3. PA and his spouse have had two children (D and L) whilst in the United Kingdom. Their three children were taken into care and a court order issued on 22nd October 2007 placing them in the care of Leeds City Council. There have been and are family court proceedings to which reference will be made later in this decision.
4. In relation to their immigration status, the appeals of both Appellants to be allowed to remain under Article 8 ECHR were dismissed by First-tier Tribunal Clayton in a determination promulgated on 24th April 2012. Grounds of application were lodged, permission to appeal granted, with the outcome that the First-tier Tribunal had made an error of law and the decision set aside. The reason was that the judge had not focused on the best interests of the child, R, as a primary consideration and was wrong to conclude that there had been no meaningful family life between the Appellants and their children, in particular R.
5. When the case was called before me on 20th January 2014, I was advised that a family court hearing had been fixed for 17th March 2014 with a time estimate of five days. I considered whether the hearing should be adjourned to await the outcome of the family court proceedings but both parties urged me to proceed and given that this case has been beset by delay through no fault of the Appellants it seemed to me appropriate to do so.
6. For the Appellants, Ms Naik confirmed that the case was proceeding on Article 8 ECHR grounds only.
7. It is helpful to set out, briefly, the statements of both Appellants.
Statements of PA
8. On 4th September 1995 he applied for a visa to come to the UK as a student. In 1999 his wife, M and R came to join him here. His other son, D, remained with his aunt in Ghana.
9. In early 2006, R and D were taken from their care by Leeds Social Services.
10. After care proceedings, he and his wife had contact with D and R and he was allowed to meet with them six times a year. In October 2008 his wife's contact with D and R was stopped by the local authority but contact with R continued.
11. In his most recent statement he says that R is now 16 years old and has indefinite leave to remain. He is currently in a residential unit because his last placement broke down. He and his wife now see R a lot more than when the case was in the First-tier Tribunal. Over the [2013] school summer holiday he and his wife saw R most days and he came to their house over Christmas staying there from 24th to 27th December 2013 and also came to see them on New Year's Day.
12. Until last summer R was at St Mary's Roman Catholic High School where he was elected Deputy Head Boy. He has done well in his examinations. R asked for his help in writing a speech and advice about which school would be best for him.
13. In 2012 he made an application to the family court to revoke the care orders in place in respect of all their three sons. He does not know when the proceedings will finish.
14. He gets updates from the local authority on D and L who have also been granted indefinite leave to remain.
15. The removal of the children was a terrible blow to his wife and removal to Ghana would have an awful effect on her because she would not be able to see R and she would lose hope that she could ever see D and L again.
16. He has lived in the UK for just over fifteen years and most of the time in Leeds. R is there and D and L are in the care of Leeds County Council. He sees R regularly and still hopes that one day he will be able to see D and L again.
Statements of YA
17. She married her husband in 1996 and in 1998 he went to the UK to continue his studies. In 1999, she, M and R travelled to the UK to be with him.
18. In February 2006 their children were taken away from them by the local authorities. They have been through long court proceedings about the children. At first she and her husband were able to see D and R in supervised contact sessions but in October 2008 contact was stopped.
19. In March 2010 she heard R was not doing very well at school and she met R and saw him sometimes as often as once a week.
20. In her most recent statement she says she has been quite ill. She is anaemic and has collapsed a few times. They have applied to the court for the care orders that the local authority has for all of their children to be revoked. They have applied for contact with them all.
21. R recently stayed with them over Christmas. She always talked to R about his education. She prepares local Ghanaian food for him. She cannot imagine what it would be like if she could not see him anymore.
22. Her daughter M is still living in London and she talks to her on the telephone maybe four or five times a month. She has been here for fourteen years and her life is here.

The Oral Evidence
23. PA gave oral evidence as noted in my Record of Proceedings and adopted his witness statements as true. He explained why form IS.96 gave his address as in Bromley.
24. In cross-examination he explained how friends and his nephew, F, were supporting him. He had limited contact with his family in Ghana, being his mother and extended family. If returned to Ghana he could not go and live with his son who was now an adult and living an independent life. He could visit with his mother. He would not be able to keep in contact with R if he was returned to Ghana. He could do so by phone but that was not the same as meeting him personally. As a child, R did not want to stay away from his parents and had often come home while in care. It would be extremely difficult for R to live here without him and his wife. He had had eight different foster carers. He did not see other members of the family as they were living in London. R had come to the United Kingdom when he was aged 18 months and knew nothing about Ghana. Nor could he visit them in Ghana as he was still in care. In re-examination he said he used to work in Morrisons Supermarket as a checkout operator. As he understood it, once R was 18 years the local authority preferred that he stayed with them in order that they could continue to support him. If allowed to stay here, he had a teaching qualification which he would like to use and looked forward to completing his PhD.
25. Mrs YA gave evidence and adopted her statements as true. In cross-examination she said the last time she had worked was in 2006. R was her only child she saw. Whilst her mother was still in Ghana, her family was here and she could not leave. The process to see all her children was ongoing. In re-examination she was asked about the impact for her of being separated from her children. She said it was very difficult.
Submissions for the Home Office
26. Reliance was placed on the refusal letter dated 20th September 2011.
27. R had been in the care of the local authority from the age of 8 and had therefore developed without his parents who had been without leave since January 2008. At paragraph 4.6 in the most recent social work report from Christine Brown it was noted that R was now more independent. R was doing very well and it was anticipated he would go to university. The progress he had made was without the direct influence of his parents. It would not be disproportionate in terms of Article 8 for them to be returned to Ghana.

Submissions for the Appellants
28. Reliance was placed on the skeleton argument. The factual background was that both the Appellants had regular informal contact with R. Consideration of Article 8 required consideration of a series of questions as posed by Lord Bingham in Razgar v SSHD [2004] 2 AC and in particular whether the interference was proportionate to the legitimate end sought to be achieved. There was family life in existence in this case and the Appellants were making attempts to develop it. There was a presumption of family life between a child and its parents. It had been established that the fact that an Appellant did not meet all the requirements of the new Immigration Rules was not necessarily conclusive of their Article 8 case - see MF (Nigeria) v SSHD [2013] EWCA Civ 1192. In addition, the rights of all family members had to be considered. In terms of ZH (Tanzania) v SSHD [2011] UKSC 4, the court had held that the best interests of the child broadly meant the well being of the child.
29. The Appellants had strong private and family ties to the UK and enjoyed family life with their son R. They also continued to have parental responsibility for R (and D) under the care order dated 22nd October 2007. They continued to have regular unsupervised contact with R. The report of Christine Brown dated 13th January 2014 made it clear that R has had an increasing degree of contact with his parents over the last two years and that R has very much wanted this contact to take place. The removal of the Appellants to Ghana would clearly interfere with their contact with R. The report also identified that R felt that taking his parents away from him would be harmful (paragraph 4.18). The Appellants had lawfully migrated to the United Kingdom and did not have a particularly poor immigration history.
30. Christine Brown had noted at paragraph 4.12 that R very much wanted the contact (with his parents) to take place.
31. The Appellants had been in the United Kingdom for fifteen and a half years and fourteen years respectively. They had nearly qualified under the ten years continuous leave to remain Rule. Both Appellants had developed friendships and ties with the community here.
32. Given their long residence, private life and community ties, it would be disproportionate to remove them from the UK, there being no compelling issue of public interest which should be capable of outweighing those factors. I was asked to allow the appeal.
Conclusions
33. The evidence before me is that the relationship between R and his parents has improved significantly since the date of the refusal letter of 20th September 2011 and I am bound to look at matters as they stand as at the date of hearing before me. Following what is said in ZH (above) I consider the best interests of the children as a primary consideration. On the evidence before me, the issue to address is the best interests of the Appellants' son, R. The reports from Mr Greg Vinnicombe (qualified social worker - see page 67 of the bundle) indicate that R clearly does not want his parents to return to live in Ghana as he believed them to be very significant in his life. The evidence of Christine Brown (Independent Social Worker to whose report I attach much weight) makes it clear that R "very much" wants the contact with his parents to take place and that it is important to him that the contact with his parents continues. At paragraph 4.13 it is noted that R says,
"I need to see my parents; they are tied up with me emotionally, educationally. If I don't see my parents I become stressed. My parents helped a lot even through my GCSEs."
34. At paragraph 4.18 it is noted that R said,
"Taking them away from me would be harmful to me. I need their help. I still regard them as the main people, the main carers in my life."
35. It is plain that the frequency of contact that R has with his parents has increased as time has moved on and on all the evidence before me it seems that the relationship he has with his parents can be categorised as a strong one as at the date of the hearing. It goes without saying that such direct contact cannot be replicated by modern means of communication. Christine Brown notes that Richard can comment in a meaningful and informed way on his situation and that facing his parents (paragraph 5.4).
36. On the evidence before me, the issue of what is in R's best interests is not a contentious one. It is clear from social work reports that R's best interests are that his parents' appeal succeeds so that he can continue to enjoy his improving and strong relationship with them. At paragraph 5.10 Christine Brown notes that if R is not able to retain his present relationship with his parents this would "jeopardise his future development as an adult". It is not feasible, and not suggested, that R who has lived most of his life here and has indefinite leave to remain should accompany his parents to Ghana.
37. In terms of the other children, it is difficult to comment on what are their best interests and of course there is a family hearing taking place in March 2014. It can be said with confidence that the decision to remove all the children from the Appellants was not one which would have been taken lightly but rather there must have been compelling reasons why that took place. It suffices to say that I have not been given the full facts of those decisions and nothing can be gained by speculation. As Christine Brown notes at paragraph 3.24 it is unclear what has occurred in the lives of this family which is why I focus on the best interests of R only as a primary consideration.
38. As Lord Kerr said in ZH (paragraph 46), "In reaching decisions that will affect a child, a primacy of importance must be accorded to their best interests. It is a factor that must rank higher than any other." He went on to say:-
"Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them."
and
"What is determined to be in a child's best interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result."
39. What then are the countervailing factors which might militate against a decision in favour of the Appellants? There is the strong matter of public interest having regard to the economic wellbeing of the country through immigration control. At the same time it is not suggested that these Appellants have a particularly poor immigration history or that they have any criminal propensities. Indeed they entered this country lawfully and it appears to be common ground that they were here for a period close to ten years lawfully before their leave expired. The lengthy time that it has taken since the refusal letter of 20th September 2011 for the Tribunal to deal with the matter cannot be laid at the door of the Appellants. As stated they were lawful entrants to this country and on 15th September 2007 PA commenced a five year PhD course at London College of Business and Management. There have been numerous family proceedings while the Appellants sought to regain contact with their children. As noted in the skeleton argument (paragraph 87) PA has spent over fifteen and a half years in the UK and of those years nine and a half of which he had continuous leave to remain as a student which only lapsed on 31st January 2008. YA has been in the country for fourteen years. While it is not permissible to take account of any near miss argument, (Patel v SSHD [2013] UKSC 72), what is permissible is to conclude that the Appellants have spent so much of their time in the UK that they have established significant family and private life here. They have extended family in the UK and given their unchallenged oral evidence that they rely on the support of their extended family and friends to sustain them in the United Kingdom, it can only be concluded that these ties are very substantial.
40. It would therefore constitute a very serious interference with their private and family life if they were removed to Ghana. It would clearly not be in R's best interests for his parents to be removed. Looking to the future and the hearing fixed for March 2014, it is clear from the evidence presented to me that it is highly unlikely that the Appellants' contact with R would be reduced by any order of the court.
41. With reference to the final question posed by Lord Bingham in Razgar, I have concluded, for the reasons given above, that the interference with the Appellants' lives by returning them to Ghana would not be proportionate to the legitimate public end sought to be achieved. I have concluded that the removal would prejudice their family life in a manner "sufficiently serious to amount to a breach of the fundamental right protected by Article 8" - see Huang v SSHD [2007] UKHL 11. To use the words of Lord Kerr in ZH, there are no considerations of substantial moment to permit a different result in this appeal. I regard the circumstances of the family (the Appellants and R) as compelling which demand a decision in their favour.
42. I am therefore allowing the appeal under Article 8 ECHR. It seems appropriate to maintain the anonymity order in this case.

Decision
43. The appeal is allowed on human rights grounds.

Signed Date
Deputy Upper Tribunal Judge J G Macdonald

TO THE RESPONDENT
FEE AWARD

No fee is paid or is payable and therefore there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge J G Macdonald