Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA304512014
IA304522014
IA304542014
IA304552014
IA304562014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10th May 2016
On 16th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

Afroza [A]
Motiur [R]
[A M]
[M R]
[T R]
(ANONYMITY DIRECTION NOT MADE)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr M Iqbal, Counsel, instructed by JS Solicitors
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellants, nationals of Bangladesh, appealed to the First-tier Tribunal against a decision of the Secretary of State to remove them as illegal entrants and/or as persons subject to administrative removal under Section 10 of the Immigration and Asylum Act 1999, their human rights claims having been refused. First-tier Tribunal Judge Monson dismissed the appeals and the Appellants now appeal with permission to this Tribunal.
2. The background to these appeals is that the first Appellant, Afroza [A], along with the second Appellant, who is her husband, and the third, fourth and fifth Appellants, who are their children under 18, appeal against the decisions of the Respondent to refuse their applications for leave to remain on the basis of their family life.
3. The first Appellant entered the UK on 6th August 2005 with valid entry clearance as a student, along with her husband and the third Appellant, [AM] (who was born in Bangladesh on 15 December 2001), who were issued visas for the same duration to accompany the Appellant as her dependants. Their entry clearance was valid until 30th November 2007 and they successfully extended their leave to remain until 30th November 2008 and again until 30th November 2009. The fourth Appellant was born in the UK on 23 January 2007.
4. On 18th November 2009 the first Appellant applied for leave to remain as a Tier 4 (General) Student Migrant with the second, third and fourth Appellants as her dependants but that application was refused on 13th July 2010 because, when the Tier 4 Sponsor Register was checked, the college at which the Appellant proposed to study was not listed on the Tier 4 Sponsor Register. Their appeals against this decision were dismissed on 3rd November 2010.
5. The first Appellant gave birth to the fifth Appellant on 20th September 2011 and in 2013 she applied for leave to remain on the basis of her private and family life, naming her husband and three children as dependants. That application was rejected as invalid on 17th November 2013 and on 26th October 2013 she made a valid application on the same grounds and that application was refused on 15th November 2013 with no right of appeal. The first Appellant sought permission to apply for judicial review and those proceedings were settled on the basis that the Secretary of State would make a fresh decision to reconsider the refusal which would trigger an in country right of appeal.
6. On 9th July 2014 the Secretary of State gave her reasons for maintaining her decision to refuse to grant leave to remain to the Appellants and to make directions for their removal. That is the decision subject to the appeal in this case.
7. The First-tier Tribunal Judge considered the appeals on the basis that he first considered the parents' claims and decided that the appeals of the parents could not succeed in their own right as neither parent had a viable private or family life claim under the Rules and there were no compelling circumstances to consider their appeals outside of the Rules.
8. The judge noted that the only obstacle to their reintegration into life in Bangladesh which has been put forward is an economic one, that is that they would find it difficult to find a job but the judge attached no credence whatsoever to this claim, noting that the first Appellant's employability was considerably enhanced by the qualifications obtained by her studies in the UK.
9. In terms of the children the judge referred to this as "a piggyback-type case" in that the parents are seeking to piggyback on the private lives of the two older children to secure leave to remain for themselves and the younger children. The judge said at paragraph 35:
"Whether the issue is to be looked at through the prism of EX.1(a), or Rule 276ADE or Section 117B(6) of the 2002 Act, the question is the same, and the considerations which need to be taken into account are also the same. As the question only needs to be answered once, I propose to answer it by reference to the statute."
10. The judge noted that the two older children do not qualify under the seven year Rule as set out in the Rules and that Exception 1 is not in play because the parents do not meet the necessary eligibility requirements. The judge noted: "As per Rule 276ADE(1)(iv), the children had not accrued seven years' residence at the date of application, albeit this is not a point which is taken against them in the refusal letter."
11. The judge went on to say that the two older children are undoubtedly qualifying children under section 117B (6) as the statute does not require that the child in question should have accrued seven years' residence as at the date of application as opposed to seven years' residence at the date of the decision and/or appeal hearing.
12. The judge went on to consider the best interests of the children and the wider proportionality considerations. The judge concluded that the children are citizens of Bangladesh, that they will be able to enjoy all of the benefits that such citizenship entails, they will be returned to Bangladesh with their parents and siblings, they do not have any medical conditions or special educational needs, they can access education in Bangladesh where English is widely spoken, they have always remained in the care of a Bangladeshi family and will therefore be aware of the language and culture of Bangladesh and they will enjoy family reunion with relatives in Bangladesh. He noted that none of the children are old enough to have developed any skills which are not transferable to Bangladesh and none of them have started studying towards a recognised qualification with the exception of the eldest child but noted that her GCSE exams are still some way off.
13. The judge noted in relation to the wider proportionality considerations that the Appellant only entered the UK for a temporary purpose and that she and her husband never had a legitimate expectation of being able to carry on family life in the UK on a permanent basis. Although the family has integrated well into the UK the judge noted that they are not financially independent and that the children are being educated at public expense and that was damaging at a macro-economic level. The judge concluded that the removal of the entire family is proportionate to the legitimate aim and that it is reasonable for the two qualifying children to leave the UK with their parents and younger sibling.
14. The Appellants' Grounds of Appeal challenge the judge's analysis under the Immigration Rules and under Article 8. Permission to appeal was granted on the basis that: "Whilst concerned with Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 the guidance in the case of Treebhawon and others suggests that the grounds are arguable."
15. At the hearing before me Mr Iqbal accepted that the decision in Treebhawon and others (section 117B (6)) [2015] UKUT 00674 (IAC) relates to circumstances where there is a finding that it is not reasonable to expect the children to leave the UK. He accepted that the judge in this case had not made such a finding. He relied on his grounds and made one additional submission which was that the judge made a material mistake of fact at paragraph 35 of the decision. The judge stated that the eldest child had not accrued seven years residence at the date of application whereas in fact he noted at paragraph 7 that the application was made on 26th October 2013 and at paragraph 4 that the Appellant, her husband and child entered the UK on 6th August 2005 which meant that by 6th August 2013 the child had completed eight years' residence in the UK. Mr Iqbal submitted that this was a crucial mistake of fact.
16. Mr Kotas responded by submitting that this issue was not mentioned in the grounds and in any event it was not material as the ultimate question was still whether it was reasonable at the date of hearing to expect the children to leave the UK.
17. I accept Mr Kotas' submission in relation to this issue. The judge clearly identified that the statute and the Rules all required an answer to the same question and that was the question that the judge went on to answer. This was the question to be addressed whether the judge reached that stage through paragraph 276ADE of the Immigration Rules or section 117B of the 2002 Act.
18. Mr Iqbal further submitted that the Secretary of State refused the application for two main reasons, firstly that the children would be returning to Bangladesh with their parents and secondly that the children could get an education in Bangladesh. He submitted that these two considerations are present in all cases and that seven years' residence would be neither here nor there in relation to that submission. He also submitted that the British Nationality Act 1981 entitles a child to be registered as a British citizen after ten years in the UK and that this indicates that the Respondent is wrong in her interpretation of reasonableness.
19. Mr Iqbal submitted that the judge did not properly consider all of the factors identified in the case of E-A (Article 8 - best interests of child) Nigeria [2011] UKUT 315 (IAC) as set out in paragraph 26 of his decision which relate to the factors highlighted in the previous policy DP5/96. Mr Kotas submitted that there is nothing wrong with the judge's decision and that the judge had correctly laid out the jurisprudence and had concluded that it was reasonable for the Appellants to return to Bangladesh. He submitted that the point about the British Nationality Act had not been litigated and could not be raised now but in any event the judge had to confine himself to the facts as they were at the date of the hearing. He submitted that the judge had given reasons and had weighed up all of the factors as he was supposed to do. In response Mr Iqbal submitted that the British Nationality Act 1981 was a Robinson obvious point which the judge should have considered.
20. I am satisfied that there is no material error in this decision. The judge considered all relevant factors in relation to the parents and the children as set out above and the judge concluded that it was reasonable to expect the children to leave the UK. Mr Iqbal did not point to any additional factors which the judge had not taken into account or to any factors which the judge had taken into account in error. The judge was not required to take into account the fact that a child can apply for registration as a British citizen when s/he has been in the UK for ten years as this was not raised before him and there was no evidence that any of the children had applied for registration or been registered as British citizens.
21. I find that the judge reached a rational decision open to him on the basis of the evidence before him and I am satisfied that there is no material error of law.
Notice of Decision

The decision of the First-tier Tribunal Judge does not contain a material error of law and I maintain that decision. The decision of the First-tier Tribunal shall stand.

No anonymity direction is made.

Signed Date: 15 June 2016

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date: 15 June 2016

Deputy Upper Tribunal Judge Grimes