Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28532/2015
IA/28535/2015
IA/28538/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision & Reasons Promulgated
On 20 March 2017
On 27 March 2017

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
QUDSIA SEHAR
MUHAMMAD HASHMI
FASEH HASHMI
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr Gilbert instructed by Lighthouse Solicitors
For the Respondent: Mrs Abomi Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. The Appellants are a mother(A1) and her two children (A1 and A2) all citizens of Pakistan born on 5 September 1976, 12 December 2013 and 12 November 2005 respectively.
3. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
4. This is an appeal by the Appellants against the decision of First-tier Tribunal Judge Thorne promulgated on 23 March 2017 which dismissed the Appellants appeals against the decision of the Respondent dated 6 August 2015 to refuse their human rights claims. The Appellants now appeal with permission to the Upper Tribunal.
5. The refusal found that the Appellants did not meet the requirements of Appendix FM under the partner route as her husband did not meet the relevant requirements and EX.1 did not apply. They did not qualify under the parent route as the children were not British citizens and had not lived in the UK for 7 years and EX.1 did not apply. They did not meet the private life requirements under paragraph 276ADE. It was acknowledged that while in Pakistan the family had been the victims of what is described as a violent robbery which took place at their home but A1 and A2 were receiving ongoing counselling and these were not considered to be exceptional circumstances to warrant a grant of discretionary leave outside the Rules.

The Judge’s Decision
6. The Appellants appealed to the First-tier Tribunal. First-tier Tribunal Judge Thorne (“the Judge”) dismissed the appeals against the Respondent’s decision.
7. Grounds of appeal were lodged arguing that the Judge had erred in his approach to the best interests of the children and in his assessment under Article 8 and on 24 October 2016 permission to appeal was granted.
8. At the hearing I heard submissions from Mr Gilbert on behalf of the Appellant that:
9. He relied on the grounds of appeal.
10. The Judge identified the best interests of the child Appellants at paragraphs 39-42 relying on the guidance in EV (Philippines) and Others v SSHD [2014] EWCA Civ 874 . There had however been developments since then in that in PD and Others (Article 8 -conjoined family claims) Sri Lanka [2016] UKUT 108 it was said that the family members claims should not be considered in isolation
11. The Judge failed to identify the evidence supporting the finding that A2 was responding well to treatment . A contrary conclusion should have been reached on the basis of the evidence of the parents who said that A2 refused to return for treatment as he found it upsetting; he had difficulty making friends. It was open to the Judge to find that to return him to the place of persecution, this would not have required a flight of fancy or speculation to suggest that he would find it more distressing to be in Pakistan than in the UK.
12. Also the strong evidence of the integration of the family in the UK means that a more rigorous approach to their best interests was required
13. The proportionality assessment was flawed in that the Judges reasons for not accepting that the Appellant was earning what he claimed was not adequately reasoned. There was no evidence of the positive weight that should be attributed to the voluntary work undertaken by A1 in accordance with Forman (ss 117A-C considerations) [2015] UKUT 00412 (IAC)
14. The reasons given for finding that the Appellants would be supported by family on return were inadequate.
15. The approach taken to A1’s husband was in adequate. He had been in the UK for 12 years and had not been back since 2012. He had indefinite leave to remain and wanted to start a business but no weight was given to the fact that he would have to sacrifice all of this if he returned to Pakistan with his wife and children.
16. On behalf of the Respondent Ms Abomi submitted that :
17. The Judge directed himself appropriately and gave adequate reasons for his findings.
18. The issue was the best interests of the children and the Judge took into account all of the relevant evidence.
19. The Judge took into account the evidence from the Royal Oldham Hospital about A2s PTSD and that said he was making good progress and said he was improving and no longer required treatment. There was no evidence before the Judge to suggest that he stopped treatment because it was having an adverse impact.
20. In relation to the issue of the husbands income, had he accepted that he worked 16 hours a week and earned minimum wage that was not material to the outcome of the case.
21. The Judge was entitled to find that their family and private life had been established when their status was for the most part precarious as the husband was granted ILR after the date of the application in June 2015.
The Law
22. Errors of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on facts or evaluation or giving legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
23. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue under argument. Disagreement with an Immigrations Judge’s factual conclusions, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge’s assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence that was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible.

24. In relation to the adequacy of the Judges reasons and his approach in general I remind myself of what was said in Piglowska v Piglowski [1999] 1 WLR 1360 by Lord Hoffmann at p. 1372 that "The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed...... These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Proceedings Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."

Finding on Material Error
25. Having heard those submissions I reached the conclusion that the Tribunal made no material errors of law.
26. This was an appeal against a refusal of a human rights claim made by the Appellant mother and two children. The Judge set out their immigration history at paragraphs 2-3 that A1 came to join her husband in the UK on 1 November 2005 and returned to Pakistan on 18 June 2006 where she stayed until she returned with A2 and A3 on 17 August 2012 after being the subject of a violent robbery at her home which A2 witnessed.
27. The Judges approach to the best interests of the children is challenged as flawed in that it is suggested that his findings about the psychological impact of the robbery on A2 and how that would impact on his return to Pakistan was not justified on the evidence before him.
28. I am satisfied that it is important to read the decision as a whole. The Judge found that it was in the children’s best interest to remain with their parents (paragraph 40) taking into account the impact of A2 witnessing the robbery. I am satisfied that the Judge identified the objective professional evidence that was relied on by the Appellants in relation to both A1 and A2s psychological problems arising out of the robbery at paragraphs 22 and 23 of the decision, two letters from 12 February 2015 and 11 February 2015 which was over a year before the hearing . I am satisfied that his analysis and the quotations that he includes reflect a careful engagement with the medical evidence and it is against this background that he then goes on to specifically identify the best interests of the children at paragraphs 39-42.
29. The earlier letter included the concerns noted by the parents about hypervigilance and fearfulness around Asian men. The most recent report noted that A2 had made good progress in managing his anxiety and that his anxieties about safety and meeting people had improved. It was noted that he had missed the last 2 appointments he was given and it was assumed that A1 and A2 no longer required treatment presumably on the basis of the previous findings. It was open to the Judge to conclude on the basis of that evidence that there was a history of psychological difficulties (my italic) and that A2 had had past treatment and that he responded well with no evidence to show that he required treatment now or in the foreseeable future. The Judge was entitled to note that there was no expert evidence to show that return would impact negatively on his mental health or wellbeing but no such evidence was before the Judge.
30. Having reached conclusions about the children’s best interests that were open to him I remind myself that in Makhlouf (Appellant) v SSSHD [2016] UKSC 59 Lady Hale said "that children must be recognised as rights-holders in their own right and not just as adjuncts to other people’s rights. But that does not mean that their rights are inevitably a passport to another person’s rights".
31. I note what was said in the permission that there ‘could be no arguable case on anything but the children’s best interests.’ Whether the Judge thereby intended to limit the permission is unclear so I considered Mr Gilberts argument that the proportionality assessment was flawed. I am satisfied that this was an appeal against a refusal of a human rights claim and the Judge was obliged to consider the issue of proportionality which is ‘consideration of “the public interest question” as defined by section 117A(3) of the 2002 Act. He was therefore required by section 117A(2)(a) to have regard to the considerations listed in section 117B which he did in detail at paragraph 69 (i)-(xii) against the background of his uncontested findings that the Appellants did not meet the requirements of Appendix FM and paragraph 276ADE.
32. He made findings about the husbands income that are challenged but even if these are wrong the income earned by the husband did not meet the financial thresholds set out in the Rules and would not , on their own, have made any material difference to the outcome in the case. .
33. The weight given by the Judge to the private life of the Appellants is challenged but I remind myself that the child Appellants were not as Mrs Abomi mistakenly suggested ‘qualifying children’ as they had not lived in the UK for a continuous period of 7 years having arrived on 17 August 2012. The Judge was required by s 117B to give little weight to private life established when their status was precarious which he noted at paragraph 69(iv).
34. I accept that the Judge does not refer to the voluntary work done by A1 but I am satisfied that this could not have made a material impact on the decision he reached. While I note that Mr Gilbert relies on Forman there was nothing about the nature and extent of the work done by A1 that is in any way comparable to the nature of the work done by Dr Forman which justified the court in that case in describing it as one of the rare cases where an Appellant could succeed under Article 8 outside the Rules.
35. I am also satisfied that the Judge in his proportionality assessment considered the position of the family as a whole including that of the husband but it was open to him to conclude that as none f the family ere British citizens and taking into account all of the other factors it was reasonable for them to return to Pakistan.
36. I am satisfied that the challenge to the decision fails to identify any material facts that the Judge considered but rather argues with the weight given to the findings made. That was a matter for the Judge.
37. I remind myself of what was said in Shizad (sufficiency of reasons: set aside) Afghanistan [2013] UKUT 85 (IAC) about the requirement for sufficient reasons to be given in a decision in headnote (1) : “Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge.”
38. I was therefore satisfied that the Judge’s determination when read as a whole set out findings that were sustainable and sufficiently detailed and based on cogent reasoning.
CONCLUSION
39. I therefore found that no errors of law have been established and that the Judge’s determination should stand.

DECISION
40. The appeal is dismissed.

Signed Date 26. 3.2017
Deputy Upper Tribunal Judge Birrell