Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/28801/2015
IA/28804/2015
IA/28805/2015
IA/28806/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 November 2016
On 30 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

SASHI LAMA
YONZEN SHANTI LAMA
YONZEN SHASHANK LAMA
KELSUNG LAMA YONZEN
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr Z Malik of Counsel
For the Respondent: Miss Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS

Introduction and background
1. This is an appeal by the appellant who is represented by Mr Malik against a decision of a panel of the First-tier Tribunal on 19 May 2016. First-tier Tribunal Judges Grimmett and VC Dean (the Panel) decided that the appellant failed to satisfy the requirements of the Immigration Rules or to establish that there were any grounds within the European Convention on Human Rights (ECHR) for remaining in the UK.
2. The background to this matter is that the appellants are a Nepalese family. Mr Sashi Lama was born on 25 November 1970. Mrs Yonzen Shanti Lama was born on 25 January 1972. Their children are Master Youzen Shasank Lama who was born on 29 December 2002 and Master Kelsung Lama Youzen, born on 31 August 2006 who are their children.
3. The appellants applied for leave to remain in the UK under the Immigration Rules on the basis that 276ADE (1) of the Immigration Rules. The Secretary of State concluded that they have not established a private life here and they did not satisfy the requirements of paragraph 276ADE (1) (iii).
4. The respondent also considered whether the appellants qualified to remain in the UK outside the Immigration Rules. It was accepted that the third and fourth appellants had been here for at least seven years and that they were below the age of 18. However, the respondent was not satisfied that they met the requirements of the relevant paragraph of the Immigration Rules, which was E-LTRC.1.6, because their parents failed to meet the requirements of Appendix FM.
5. The appellants appealed to the Upper Tribunal. On 28 September 2016 First-tier Tribunal Judge Pedro decided to give permission to appeal. He noted that the findings were comprehensive in relation to the appellants' failure to meet the requirements of the Immigration Rules but he also noted the requirements of Section 55 of the Borders, Citizenship and Immigration Act 2009 (2009 Act) placed a duty on the respondent to consider the best interests of the children, that is the third and fourth appellants, when deciding the outcome of the immigration applications.
6. Immigration Judge Pedro who considered the applications for permission to appeal considered there to be no merit in grounds 1 and 3 of the grounds. He found that the Panel had fully considered the requirements of section 55 of the 2009 Act, weighing up the best interests of the third and fourth appellants. However, it was at least arguable that the applications should have succeeded outside the Immigration Rules. This ground (ground 2- or ground (b)) criticised the Immigration Judge because it was said that he had neglected to consider the case under Article 8. It was at least arguable, that there was a material omission in the decision to consider the case outside the Immigration Rules.
7. Of course this would only be relevant if it might lead to a different outcome to the appeal and it would only be in that circumstance that it would be a material error of law. Nevertheless the matter was listed before me for a hearing as to whether there was a material error of law in the decision of the First-tier Tribunal.
The Hearing
8. At the hearing Mr Malik of Counsel represented the appellants and submitted that findings of fact of the First-tier Tribunal suggested that the children appellants i.e. appellants 3 and 4, had been present in the UK for at least seven years. In the circumstances, based on the case of MA [2016] EWCA Civ 705, the public interest did not justify their removal. He quoted extensively from MA. In particular, referred to paragraphs 10, 17 and 49. In paragraph 17 Elias LJ outlined the circumstances where "the public interest" will justify removal. He said that Parliament had clearly stipulated that certain conditions had to be satisfied. The conditions here related to the welfare of the children and required the public interest to justify that removal.
9. He argued that the panel before which this appeal came in the First-tier Tribunal had erred in law in their assessment of the public interest. He particularly criticised paragraph 30 et sequitur in the decision. He said there was an error of law, that the First-tier Tribunal had not attached sufficient weight to the interests of the children.
10. As I noted in the course of his submissions they appeared to go quite a bit further than the grounds of appeal and in fact Mr Malik did not seek to persuade me that the failure to mention the case outside the Immigration Rules was itself a material error of law. I note that that was the reason on which permission to appeal was given in the first place.
11. The respondent's representative, Miss Brocklesby-Weller, helpfully took me through a number of other key passages in the case of MA including paragraph 45 of the judgment of Lord Justice Elias. In paragraph 45 Lord Justice Elias points out that, in his judgment, 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 in Sections 117C(5) and should do so when considering the question of reasonableness under Section 117B(6). He also noted at paragraph 49 that in fact this was not a seven year case.
12. Turning to the facts of the case, Miss Brocklesby-Weller said that it was of interest that the case of MA did not appear to involve the return of a family unit to a country with which they have a close familial and cultural connection. At least two of the six cases considered by the Court of Appeal involved single-parent carers (see paragraphs 1-4).
13. Mr Malik said that, essentially, the length of residence justified taking a different approach to this case. In other cases considered by the Court of Appeal in MA, there were no children who had been present in the UK for seven years and were apparently settled into the UK school system, as was the case here. He said there had to be "powerful reasons to counteract the presumption, effectively, in favour of the children". Those powerful reasons did not exist here.
Conclusions
14. The first ground of appeal, namely that the Immigration Judge at First-tier Tribunal had failed adequately to consider the case under the Rules, has effectively not been pursued before me and in any event was not the subject of a grant of permission to appeal to the Upper Tribunal. I find that the Rules do provide a comprehensive code and that they were fully considered by the Panel. There is no basis that I can find for criticising the decision of the First-tier Tribunal.
15. Mr Malik did raise some interesting arguments in relation to the case of MA, but, in my view, he took Lord Justice Elias's comments out of context. It is necessary to read the whole decision. The Secretary of State here has made a decision to remove the whole family back to Nepal, a country with which they have a close cultural and linguistic assimilation. The First-tier Tribunal clearly found that they had a number of family members there and he clearly found that it was in the interests of the child appellants to return with the adult appellants to Nepal as part of one family unit.
16. I do not agree that a different test applies in relation to cases where there are children who have been here for seven years or more, but I do accept that the requirement on the Secretary of State to properly weigh up the welfare of the children was a very significant obligation, which has been described as a paramount requirement in these cases. However, when the decision of the First-tier Tribunal is fully considered it is clear that the Tribunal properly weighed up and took full account of the welfare of the children. Indeed, the Panel looked painstakingly at the facts of this case and fully considered the extent to which the children would be disrupted by their removal to Nepal. It concluded that there was nothing in the facts of the case to indicate that they could not continue to be educated in Nepal. Although the education available in that country was different from the education available in the UK, it had served their parents well and would be likely to serve them equally well. This finding deals effectively with ground three, again one in which permission was not granted, and crosses over into ground two on which permission was given.
17. In so far as that second ground (that the First-tier Tribunal failed to consider the grounds for remaining in the UK outside the Immigration Rules) is concerned, in so far as it may be treated as free-standing one, I am satisfied that the substantial ties of the family to Nepal was a powerful factor to support the First-tier Tribunal's decision. Having given the matter very careful consideration I am not persuaded that any different result could have followed from considering this case outside the Immigration Rules or that MA casts doubter on the correctness of the approach of the First-tier Tribunal. I am aware that this is an area which is subject a number of other appeals at the present time and it may be that guidance is forthcoming from the Supreme Court in due course. However, it is my conclusion that, based on the fact-findings of the First-tier Tribunal, no basis has been shown for interfering with the Panel's decision.

Notice of Decision
18. The appeal of the appellant against the decision of the First-tier Tribunal is dismissed. Therefore the decision of the First-tier Tribunal to dismiss the case under the Immigration Rules and on human rights grounds stands.
19. No anonymity direction was made by the First-tier Tribunal. There has been no request for an anonymity direction and I make no anonymity direction in the Upper Tribunal. In addition there was no fee award by the First-tier Tribunal and again that decision was not challenged.

Signed Date 30 December 2016

Deputy Upper Tribunal Judge Hanbury