Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30058/2015
IA/30059/2015
THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 February 2017
On 28 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

R Y P
V Y P
(ANONYMITY DIRECTION MADE)
Respondent

Representation:

For the Respondent: Mr E Yerokun, Legal Representative
For the Appellant: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS

1. This matter comes before me for consideration as to whether or not there is a material error of law in the determination of First-tier Tribunal Judge Moore (“the FTTJ”) promulgated on 12 September 2016, in which he allowed the allowed the appeals against the refusal of applications for leave to remain on human rights grounds. He did so under the Immigration Rules.

2. For ease of reference and continuity, throughout this decision I maintain the descriptions of the parties as appellants and respondent, as set out in the FTTJ’s decision notwithstanding it is the Secretary of State who pursues this appeal.

3. Whilst no anonymity direction was made in the First-tier Tribunal, I make such a direction now because one of the appellants is a minor.

4. The first appellant is the mother of the second appellant. Both are Indian citizens. The respondent considered the human rights applications under the Immigration Rules. Whilst the respondent accepted the first appellant had a genuine and subsisting parental relationship with the second appellant, a child who had lived continuously in the UK for at least seven years, she considered it was reasonable for the child to leave the UK. They could integrate into Indian society. The first appellant did not therefore meet the criteria in EX.1. Nor did she meet the criteria in paragraph 276ADE(1)(vi) because there were not very significant obstacles to her integration in India. Similarly, the second appellant did not meet the criteria in Paragraph 276ADE(1)(iv) because it would not be unreasonable to expect her to leave the UK with her mother, the first appellant.

5. It was agreed by the parties’ representatives at the hearing before me that the FTTJ had erroneously applied the guidance in MA (Pakistan) [2016] EWCA Civ 705 at paragraph 28 of his decision where he stated:

“In reaching a decision in this appeal I have also considered the Court of Appeal decision of MA [Pakistan] and Others [2016] EWCA Civ 705 in which it was agreed that whether it was reasonable or not to remove a child, the Court must focus only on the position of the child, and that the conduct and immigration history of the parents, which would be relevant if the wider public interest consideration had to be weighed in the balance, was immaterial.”

6. In MA (Pakistan) Elias LJ indicated that if “free from authority” he would have favoured the appellants’ argument that the reasonableness question should be decided only on the position of the child, excluding consideration of the conduct and immigration history of the parents (which would be relevant if the wider public interest consideration had to be weighed in the balance). However Elias LJ concluded that, in the light of MM (Uganda), wider matters did have to be considered here (paragraphs 45). Elias LJ indicated (in paragraph 13) that the question of reasonableness had to be approached in the same way whether it arose pursuant to subparagraph 276ADE(iv) of the rules or pursuant to section 117B, although in the former the seven years’ residence (of the child) was assessed as at the date of application whereas under section 117B it was the date of the court’s determination. At paragraph 45 Elias LJ confirmed that “it is not blaming the child to say that the conduct of the parents should weigh in the scales when the general public interest in effective immigration control is under consideration”. Even if the Court, contrary to MM (Uganda) had decided to apply “the narrow reasonableness test where the focus is on the child alone ... [it would not follow] that leave must be granted whenever the child's best interests are in favour of remaining”.

7. For these reasons I am satisfied that the FTTJ made an error of law in failing to take into account the first appellant’s poor immigration history in his consideration of the reasonableness of expecting the second appellant to leave the UK pursuant to paragraph 276ADE(1)(iv).

8. The issue for me to decide is the materiality of that error of law. For the respondent Mr Bramble submitted that, even in the absence of challenge to the FTTJ’s findings of fact, the public interest in effective immigration control was sufficient to outweigh the interests of the child. For the appellant, Mr Yerokun submitted that the FTTJ had referred to the public interest, albeit by inference only, at paragraphs 22 and 25 of his decision: he had taken into account the first appellant’s poor immigration history. The only way the FTTJ could have come to the decision that the first appellant’s appeal would have been refused, were it not for the second appellant, was as a result of her being an overstayer. He submitted that, weighing the interests of the child as against the public interest, the balance lay in favour of the child.

Discussion

9. There is no challenge to the FTTJ’s findings of fact. He finds at paragraph 25 that if the lead appellant were “on her own in the UK, and did not have her younger daughter with her, she could return to India and live with either her brother or sister notwithstanding that both of them were married and had children of their own.” There is no challenge by the appellant to this finding. As the FTTJ says “the significant issue however is the situation with regard to the second appellant”.

10. The respondent accepted the lead appellant had a parental relationship with the second appellant. The FTTJ notes the child “was born in the UK, had never left the UK, was 9 years of age, and had undergone all her education in the UK. The daughter had also successfully undergone speech therapy whilst in the UK.“ He notes “the daughter in the UK has no real relationship with her father who resides in India.”. He accepts there “has been no contact between the daughter and her father for the past 7 years, though there has been some telephone contact between the daughter in the UK and her elder sister in India.” He accepted the child saw herself as a British citizen. He found

“She speaks the English language and has never been to India and has integrated into society in the UK where she was born 9 years ago. She does not want to go to India to live and has a desire to continue living with here mother and grand-mother in the grand-mother’s home in the UK. The independent social worker’s report (Section 11 appellant’s bundle) recorded that there was an especially close relationship between [the second appellant] and her grand-mother and that both would struggle to cope with any separation. It was further recorded that it was clear from talking with [the second appellant] that she identifies with British culture and was distressed at the mere suggestion of relocating to India and that there would be huge stress on the appellant and [the second appellant] since they could not rely on any financial support from the husband/father or the in-laws. [The second appellant] would be sad if forced to reside in a country such as India where she had no emotional connection …”

11. The FTTJ goes on to say at paragraph 28 that he was not satisfied it would be reasonable to expect the second appellant to leave the UK. He found that the “exception under Paragraph EX.1(a)” had been met.

12. I am satisfied that this finding amounts to an error of law given the absence of any consideration of the public interest in assessing the issue of reasonableness, contrary to the guidance in MA (Pakistan). Had the FTTJ taken into account the lead appellant’s poor immigration history, the outcome might have been different.

13. For these reasons, the decision to allow the appeal “under the Immigration Rules” (paragraph 30) contains a material error of law.

14. With the agreement of the parties’ representatives I now remake the decision. I do so taking into account the lead appellant’s immigration history. This is set out, in summary, in paragraph 10 of the FTTJ’s decision where he cites the reasons for refusal thus:

“Your brief immigration history:

24th January 2005 – You and your husband entered the UK with entry clearance granted as visitors with a visa valid from 23rd December 2004 until 23rd June 2005.
8th August 2007 – your daughter, [the second appellant], was born in the UK.
August 2009 – your husband returned to India …”

15. Thus the lead appellant has lived in the UK unlawfully from 24 June 2005 to date, a period of over 11 years. She does not, in her own right, fulfil the criteria in the Immigration Rules for the grant of leave to remain. Her only potential route to such a grant is through her daughter and EX.1, namely whether it is reasonable to expect her daughter to leave the UK. The FTTJ found that, were it not for the child, the lead appellant could return to India to live with either her brother or sister.

16. I consider the child’s best interests at the outset and in isolation from the appellant’s misconduct (Kaur (children’s best interests / public interest interface) [2017] UKUT 00014 (IAC)). I bear in mind they must be a primary consideration. In that regard I adopt the findings of the FTTJ which have not been challenged by either party. It is in the second appellant’s best interests to remain in the UK with her mother and grandmother, continuing her education in this country, where she is settled and integrated. She considers herself to be British. She is familiar with the education system in this country. I take into account the guidance in Azimi-Moayed & Ors (decisions affecting children; onward appeals) [2013] UKUT 197 (IAC): the child’s years in the UK after the age of four were significant because she had integrated into UK society and had developed a life outside the family unit. She wishes to remain in the UK with her mother and grandmother and to continue her life here. Moving to India with her mother would be a stressful experience for her. Whilst no submission were made to me on the issue I note the second appellant has lived in the UK for over ten years. It may be that she would qualify for British citizenship. I bear in mind Lady Hale’s comments in ZH (Tanzania) (FC) v SSHD [2011] UKSC 4 in which she said that “Although nationality is not a "trump card" it is of particular importance in assessing the best interests of any child”. In the present case, the second appellant is not a British citizen but she may be entitled to apply for British citizenship. I take that into account.

17. I bear in mind the public interest factors listed at s117A-117D of the 2002 Act. The maintenance of effective immigration control is in the public interest and the lead appellant has overstayed for over 11 years. Whilst she gave evidence in English at the hearing in the FTT, which suggests a degree of integration, the evidence does not suggest the appellants are financially independent. The second appellant is fully integrated into British life and considers herself British. However, the appellants’ private lives have been established while the appellants’ immigration status was precarious; the case of the second appellant she has never had leave to remain and the lead appellant has only had visitor status until June 2005. The first appellant has known from the outset of her arrival here that she could be removed at any time once her leave to remain as a visitor expired in 2005. I bear in mind the issue of reasonableness in the context of s117B(6) is to be decided on the same basis as under the Immigration Rules (MA (Pakistan) refers).

18. Whilst I keep in mind, as a primary consideration, the best interests of the second appellant, I also bear in mind the appellants are Indian nationals; they have accommodation and family support in India. The second appellant is able to live with her mother and other family members in India, albeit separated from her grandmother with whom she has a close relationship. Her education would be continued in India; she would be taught in English, as she is here. She would have access to healthcare. Her elder sister is familiar with the education system in India and would be able to assist the second appellant to integrate. Whilst she has never been to India, she is familiar with its culture and society, having been brought up with her mother and grandmother. She has also had contact with her elder sister in India. Whilst the second appellant would be sad to leave the UK and her grandmother, she would remain with her mother who is her principal source of emotional and practical support.

19. I accept there would be disruption to the second appellant’s life as a result of the move to India with her mother. However, there are no nationality issues or language concerns. The lead appellant is familiar with life in India and would be able to support her daughter; the appellants would have family support in India. There are not very significant obstacles to the lead appellant’s reintegrating into life in India on return.

20. There is a significant public interest in removal. No blame can be attached to the second appellant for the misdemeanours of her mother.

21. I accept that the removal of the second appellant would entail disruption to her education and her social life. She would lose regular personal contact with her grandmother who plays a significant role in her life. She would lose the opportunity of gaining British nationality. That loss would not be in her best interests. However, given that she would be removed with her mother and that they would have the practical support of other family in India, including the provision of accommodation, I consider it would not be unreasonable to expect her to leave the UK with her mother, notwithstanding the considerable disruption to her private life. The second appellant is a healthy child and her mother would assist her in adjusting to life in India. She would continue her education and would have access to healthcare, albeit in both cases, perhaps not to the standard she might receive in the UK. She would have the support and assistance of extended family in India and of her elder sister. I accept she has never been to India and she would find the transition difficult in the short term, particularly with the loss of personal contact with friends and school. However she would be able to maintain some contact with friends in the UK via the internet, telephone, text and visits. It is also relevant that she has grown up in an Indian family environment and thus, to some extent, she is familiar with Indian customs and culture; this will assist her in settling into life in India.

22. For these reasons I find the respondent’s decision is not in breach of paragraph EX.1 insofar as the appellants are concerned. Nor is it in breach of paragraph 276(1)(iv) insofar as the second appellant is concerned.

23. I consider that the evidence has been considered adequately under the Immigration Rules insofar as both appellants are concerned. Their circumstances are not compelling. There is nothing to suggest that, were the appeal to be considered in accordance with the Article 8 jurisprudence, the appeals would be successful.

24. I set aside the decision of the FTTJ and remake it dismissing the appeals on the grounds that the appellants do not fulfil the criteria in the Immigration Rules or on human rights grounds.

Decision

25. The making of the decision of the First-tier Tribunal did involve a material error on a point of law.

26. I set aside the decision.

27. I re-make the decision in the appeals by dismissing them.

A M Black
Date 27 February 2017
Deputy Upper Tribunal Judge A M Black

Anonymity Direction
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

Fee Award
The FTTJ made a fee award; as his decision has been set aside, I set aside that fee award. The appeal has now been dismissed and there can be no fee award in these appeals.

A M Black
Date 27 February 2017
Deputy Upper Tribunal Judge A M Black