Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28787/2013
IA/28788/2013
IA/28789/2013
IA/28791/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 4 April 2014
On 10th April 2014

Before

Deputy Upper Tribunal Judge MANUELL

Between

Mrs NIRALIBAHEN BIMALKUMAR PATEL
Mr KUMAR BUPENDRABHAI PATEL
MASTER DEEP BIMALKUMAR PATEL
MASTER VIYAN BIMALKUMAR PATEL
(NO ANONYMITY DIRECTION MADE)

Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr M Iqbal, Counsel
(Instructed by Farani Javid Solicitors LLP))
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction

1. The Appellants in these linked cases appealed with permission granted by Upper Tribunal Judge Goldstein on 4 March 2014 against the determination of First-tier Tribunal Judge S Aziz who had dismissed the Appellant's appeals in a determination promulgated on 6 January 2014.

2. The Appellants are nationals of India, a family, who after the parents had overstayed, and had two sons born to them in the United Kingdom, had sought Indefinite Leave to Remain on Article 8 ECHR grounds. Removal Directions had been made against them by the Respondent when their applications were refused.

3. Permission to appeal to the Upper Tribunal was granted by Upper Tribunal Judge Goldstein (permission to appeal having been refused in the First-tier Tribunal) because, he said without wishing to raise the Appellants' hopes, he considered that it was arguable that the judge had (a) made errors as in his approach to paragraph 276ADE of the Immigration Rules and (b) as to the proportionality of removal. The Respondent indicated that the onwards appeals were opposed.

Submissions - error of law

4. Mr Iqbal for the Appellants relied on the grounds of onwards appeal on which permission to appeal had been granted. The only issue before the judge had been Article 8 ECHR. In summary, Mr Iqbal submitted that the determination showed that the judge's approach to Article 8 ECHR was erroneous. There had been insufficient attention to the position of the children and to their private lives. They had lived in the United Kingdom all their lives. The distinction which the judge had made between the relative importance of respective periods of 7 years was unfounded. The determination was inadequate and should be set aside for material error of law, and the appeals reheard.

5. Mr Tufan for the Respondent contended that there was no material error of law. The determination was thorough and well reasoned in all respects. EX.1 of the Immigration Rules was inapplicable because neither child had spent 7 years in the United Kingdom as at the date of the application. Any policies of the Secretary of State about 7 years residence were long gone. The parents were educated in India and it was reasonable for them and their family to return there. The Appellant's arguments amounted at best to no more than disagreement with the decision which had been properly reached. The judge had dealt with the evidence and was entitled to reach his best interests and proportionality findings.

6. Mr Iqbal submitted by way of reply that section 55 of the Borders, Citizenship and Immigration Act 2009 had not been complied with. The judge should have considered the position as at the date of the hearing. It was unreasonable for the children to be removed to India.

No error of law finding

7. The tribunal reserved its determination which now follows. The tribunal finds that the judge had not fallen into error of law. The experienced judge had heard and seen the Appellants' witnesses, and reached conclusions which were open to him.

8. The tribunal accepts the submissions made by Mr Tufan. The determination is well structured, careful and thorough in all respects. The judge cited all relevant current authorities and applied them.

9. At paragraph 67 of the determination the judge gave close attention to the children's position. He quoted accurately without direct attribution (which was not required) from the leading case of E-A (Article 8 - best interests of child) Nigeria [2011] UKUT 00315 (IAC). He was entitled to find that the period of time which the children had spent in the United Kingdom was not conclusive as to the reasonableness of removal. He gave sustainable reasons why both children could go to India with their parents: see, e.g. [88 to 89]. He gave sustainable reasons why the children could adapt readily. It is now trite law that their best interests are not the paramount consideration in the evaluation of proportionality.

10. The judge's discussion of proportionality and the balancing exercise he conducted was against the legitimate objective under Article 8.2 ECHR which is usually summarised as immigration control. The judge applied EB (Kosovo) [2008] UKHL 41, took into account delay by the Respondent and gave proper reasons for his finding that the parents' immigration history was very poor. He was entitled to find that the parents could and should have left the United Kingdom voluntarily.

11. It has to be said that the grant of permission to appeal by the Upper Tribunal was generous and failed to reflect the care in preparation and depth of reasoning which the determination demonstrates. The tribunal finds that there was no error of law and that there is no basis for interfering with the judge's decision.

DECISION

The making of the previous decision did not involve the making of an error on a point of law and stands unchanged

Signed Dated

Deputy Upper Tribunal Judge Manuell

TO THE RESPONDENT
FEE AWARD

The appeal was dismissed so there could be no fee award

Signed Dated

Deputy Upper Tribunal Judge Manuell