Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/30010/2015
ia/30014/2015
ia/30016/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29 November 2016
On 2 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

Carlos [P] (first Appellant)
Marangelly [A] (second Appellant)
[V A] (third Appellant)
(anonymity direction NOT MADE)

Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mr M Murphy (Counsel)
For the Respondent: Ms A Brocklesby-Weller (Home Office Presenting Officer)

DECISION AND REASONS

1. This is an appeal from the decision of First-tier Tribunal Judge Davey promulgated on 27 June 2016, permission having been granted by First-tier Tribunal Martins. There are three appellants who comprise a family unit, but the focus is on the third appellant, [VA] who is the daughter of the first and second appellants.

2. It was conceded in the Rule 24 response, and affirmed in the helpful oral submissions by Ms Brockelsby-Weller on behalf of the respondent that there was an error in law in the Judge's decision. The matter should not have been remitted to the Secretary of State. Rather the appeal should have been determined on the merits. See Greenwood (Automatic Deportation Order of Events) [2014] UKUT 00342.

3. In these circumstances, and with the concurrence of both Counsel, I therefore set aside the Judge's decision and proceed to remake the decision.

4. There is a lengthy history to this matter. The first appellant entered the United Kingdom in December 2003, his wife and daughter joining him the following year. Their applications for leave to remain were made on 2 April 2012, by which time the third appellant had already 'clocked up' 7 years residence. This was refused on 23 April 2014; then reconsidered and refused again on 9 June 2015.

5. The Judge recognised the strength of the appellant's case. Indeed in a partial decision promulgated on 16 March 2016 (headed "Directions") the Judge stated that "the Secretary of State's decision was likely to fail on appeal" (para 9).

6. Having set aside the Judge's decision, I now look at the matter de novo on the basis of all the available material. Ms Brocklesby-Weller accepts that the parental claims are parasitic upon that of the third appellant.

7. Put shortly, the matter turns on paragraph 276ADE(1) of the Immigration Rules, the requirements of which are

"(iv) the applicant is under the age of 18 years and has lived continuously in the United Kingdom for at least seven years ? and it would not be reasonable to expect the applicant to leave the United Kingdom."

8. It is not disputed that the third appellant is under the age of 18. She came to the United Kingdom at the age of 4 and has been here for some twelve years. The sole issue for me to determine is whether it would be reasonable to expect the third appellant to leave the United Kingdom.

9. The respondent's submissions on this are that it would not be unreasonable because the third appellant would be returning to Venezuela with her parents as part of a cohesive family unit, and would be reintegrated into the country of her birth where she has cultural links. She would have full access to education in Venezuela. Her parents are over-stayers and effective immigration control calls for them to leave the United Kingdom.

10. Mr Murphy, for the appellants, submits that the third appellant has spent her formative years in the United Kingdom from the age of 4 onwards. She has been integrated in her school environment; in her social environment and elsewhere such as to have reached the stage where she is now studying for A levels. It is unnecessary to recite the extensive evidence upon which he relies, all of which consistently supports the contention that the best interests of the third appellant militate in favour of her remaining in the United Kingdom.

11. Both representatives made reference to The Queen (on the application of MA (Pakistan) and others v Upper Tribunal and another [2016] EWCA Civ 705, which addressed how the test of reasonableness should be applied when determining whether or not it is reasonable to remove a child from the United Kingdom once he or she has been resident here for seven years. The Court of Appeal restated at [23] the firmly established jurisprudence that the best interests of the child is a primary consideration which has to be taken into account in all cases where the child's interests are affected.

12. The following passages of the judgment of Elias LJ (with whom the rest of the Court agreed) are of particular relevance:

[40] ... It will generally be in the child's best interests to live with his or her parents and siblings as part of a family. [...] Had Parliament intended to require considerations bearing upon the conduct and immigration history of the applicant parent to be taken into consideration, I would have expected it to say so expressly, not for the matter to have to be inferred from a test which in terms focuses on an assessment of what is reasonable for the child. This does not in my view mean that the wider public interests have been ignored; it is simply that Parliament has determined that where the seven year rule is satisfied and the other conditions in the section have been met, those potentially conflicting public interests will not suffice to justify refusal of leave if, focusing on the position of the child, it is not reasonable to expect the child to leave the UK. [...]

[47] [...] If Parliament had wanted the child's best interests to dictate the outcome of the leave application, it would have said so. The concept of "best interests" is after all a well established one. Even where the child's best interests are to stay, it may still be not unreasonable to require the child to leave. That will depend upon a careful analysis of the nature and extent of the links in the UK and in the country where it is proposed he should return. What could not be considered, however, would be the conduct and immigration history of the parents.

[48] In EV (Phillipines) Lord Justice Christopher Clarke explained how a tribunal should apply the proportionality test where wider public interest considerations are in play, in circumstances where the best interests of the child dictate that he should remain in the UK (paras. 34-37):

"35. A decision as to what is in the best interests of children will depend on a number of factors such as:
(a) their age;
(b) the length of time that they have been here;
(c) how long they have been in education;
(d) what stage their education has reached;
(e) to what extent they have become distanced from the country to which it is proposed that they return;
(f) how renewable their connection with it may be;
(g) to what extent they will have linguistic, medical or other difficulties in adapting to life in that country; and
(h) the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens." [...]
[49] Although this was not in fact a seven year case, on the wider construction of section 117B(6), the same principles would apply in such a case. However, the fact that the child has been in the UK for seven years would need to be given significant weight in the proportionality exercise for two related reasons: first, because of its relevance to determining the nature and strength of the child's best interests; and second, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary.
13. Regard must also be had to section 55 of the Borders, Citizenship and Immigration Act 2009 which establishes an overriding obligation to have regard to the welfare of children in the Secretary of State's functions including those of immigration. This applies to all children present in the United Kingdom, whether or not they are citizens and whether or not they are lawfully present.
14. The overwhelming weight of evidence is that it would be unreasonable for the third appellant to return to Venezuela in circumstances where she is so strongly integrated, socially and educationally, into the United Kingdom. Are the daughter's best interests are outweighed by public interest considerations? The following passage from the judgment of Elias LJ in MA (Pakistan) gives some assistance in assessing the relevance and weight to be afforded to the fact that a child's parents are be illegal overstayers.

[103] [...] The purpose underlying the seven year rule is that this kind of reasoning ought not to be adopted in their case. They are not to be blamed for the fact that their parents overstayed illegally, and the starting point is that their status should be legitimized unless there is good reason not to do so. I accept that the position might have been otherwise without the seven years' residence, but that is a factor which must weigh heavily in this case. The fact that the parents are overstayers and have no right to remain in their own right can thereafter be weighed in the proportionality balance against allowing the child to remain, but that is after a recognition that the child's seven years of residence is a significant factor pointing the other way.

15. It follows in all the circumstances that the third appellant's appeal succeeds under the Immigration Rules, and this is not displaced by any proportionality analysis. Since it is conceded by the Respondent that the parents' appeals are parasitic upon those of the daughter, it follows that notwithstanding that the mother and father may be overstayers, they too should have leave to remain during the third appellant's minority.

Notice of Decision

Having set the decision of the First-tier Tribunal on the basis of a material error of law, it is remade as follows:
(1) The Third Appellant's appeal is allowed under the Immigration Rules.
(2) The First and Second Appellants are entitled to such immigration status as the Secretary of State may deem fit until such time as the Third Appellant obtains her majority.

No anonymity direction is made.

Signed Mark Hill Date 1 December 2016

Deputy Upper Tribunal Judge Hill QC