Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/31884/2015
IA/32780/2015

THE IMMIGRATION ACTS

Heard at HMCTS Employment Tribunals,
Liverpool
Decision & Reasons Promulgated
On 18th January 2017
On 8th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

(1) SHEREE [M]
(2) [T R]
(ANONYMITY DIRECTION NOT MADE)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mr Aslam Khan (Solicitor)
For the Respondent: Mr Chris Bates (Senior HOPO)

DECISION AND REASONS

1. This is an appeal against the determination of First-tier Tribunal Judge Brookfield, promulgated on 26th July 2016, following a hearing at Manchester on 5th July 2016. In the determination, the judge dismissed the appeals of the Appellants, whereupon the Appellants subsequently applied for, and were granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellants
2. The Appellants are female nationals of Jamaica. The first Appellant was born on 18th May 1977 and entered the UK in 2002 as a visitor, following which she applied for leave to remain in the UK as a student nurse in September 2002. That application was refused on 3rd August 2007 when the first Appellant was served with an ISI51A notice. The second Appellant was born to the first Appellant in the UK on 24th December 2011 and she attends a state funded school in the UK. The father of the second Appellant has discretionary leave to remain in the UK until 13th November 2018 and lives with his partner and their children. The Appellants themselves live with the first Appellant's mother at 19 [ ~ ] Street in Manchester. The Appellants applied on 27th March 2015 for permission to remain in the UK on the basis of their family and private life in this country.
3. The Respondent Secretary of State decided that the Appellant did not meet the requirements of the Immigration Rules to remain in the UK as a partner or parent under Appendix FM. Moreover, the first Appellant did not meet the requirements of paragraph 276ADE for permission to remain in the UK on the basis of her private life as she had not lived in the UK for twenty years and failed to establish that there were very significant obstacles to her integration into Jamaica. As far as Article 8 was concerned, there were no exceptional circumstances which would enable the Appellants to be granted leave to remain outside the Immigration Rules.
The Judge's Findings
4. The judge gave proper regard to the legal position (at paragraph 5) setting out paragraph 276ADE as a consideration together with Section 117B of the 2002 Act, before dealing with the possible application of Article 8 of the ECHR. The judge was careful not to exclude consideration of Section 55 of the BCIA 2009. The evidence was then taken into account.
5. The judge's findings (at paragraphs 7 to 8) take account of the fact that the first Appellant has lived in the UK for fourteen years. She gave evidence that she was unable to return to Jamaica as she has no family living there and she will be returning as a single mother with a young daughter. She was "scared of being subjected to harm in Jamaica as her own mother was attacked and stabbed in Jamaica prior to her settling in the UK in 2000" (see paragraph 8(iv)). Consideration was given to how there was a markedly higher level of gender-based violence in Jamaica currently. However, the Appellant could not satisfy the requirements of paragraph 276ADE and could point to no very significant obstacles in integrating back into Jamaican life with her daughter (see paragraph 8(xi)). The judge then dealt with the issue of Article 8 ECHR and had no difficulty in holding that Article 8 was engaged (paragraph 8(xii)). However, the Respondent intended to remove the Appellant from the UK "as a family unit" and, "there was no credible evidence before me to suggest that the Appellants would be unable to enjoy family life together in Jamaica" (paragraph 8(xiii)).
6. The judge then gave consideration to Section 117B and the public interest in immigration control and observed that, "the first Appellant does not work in the UK and is wholly dependent on her mother and other relatives to provide her with accommodation and maintenance", and although it was the case that the first Appellant "has never received public benefits in the UK" this did not mean that the Appellant obtained a positive right to remain in this country (paragraph 8(xiv)).
7. It was necessary then to give consideration to Section 55 BCIA given the existence of the second Appellant, her child, and the need to safeguard and promote the welfare of children in this country. In particular, the well-known case of Azimi-Moayed [2013] UKUT 197 was noted. However, all things considered, the Respondent's decision was in accordance with the law and the appeal could not succeed (paragraph 8(xxvi)).
Grounds of Application
8. The grounds of application state that the judge failed to carry out a proportionality assessment of the Appellants' claim in relation to the public interest and failed to have proper regard to Section 55 of the BCIA 2009.
9. On 2nd November 2016, permission to appeal was granted on the basis that it was arguable that at paragraph 8(xiv) the judge erred in failing to address the provisions of Section 117B in the context of the best interests of the minor Appellant child.
10. On 23rd November 2016, a Rule 24 response was entered. This made four specific points. First, that the judge did give consideration to the child's best interests and balanced this against the public interest in removal. In considering Section 117B the judge found that the first Appellant was not financially independent and her immigration status was precarious. Second, the second Appellant was not a qualifying child under the definition of Section 117B because she is neither a British citizen nor has she lived in the UK for a continuous period of seven years. Third, as far as Section 55 of the BCIA 2009 was concerned, the second Appellant's father has discretionary leave in the UK and there was no guarantee that he would be granted further leave to remain after 2018, in which case he would also return back to Jamaica, and the judge did specifically give consideration to this and decided that the father would be able to visit his daughter in Jamaica and maintain contact there. Fourth, the child did not meet the threshold of having resided in the UK for a period of seven years and it was reasonable for the judge to conclude that the child would be able to adapt to life in Jamaica.
The Hearing
11. At the hearing before on 18th January 2017, Mr Aslam Khan, appearing on behalf of the Appellants, stated that he had to accept that the first Appellant was not gainfully employed and was not financially independent. However, the reason why this was so was because she was not allowed to work and had a restriction placed upon her by the immigration authorities. She ought not to be penalised for this in the circumstances. Second, the judge had set out under the heading "The Legal Position" the "fundamental legal principles on which I have decided the appeal" (paragraph 5), but these were all in favour of the Appellants. The Appellants were law-abiding and there was no criminality involved. Third, although it was said that the second Appellant's natural father only had discretionary leave, and although the facts suggested that he was living separately with his own partner, the reality was that he daily picks up the second Appellant from school, and he provides for her, and is a constant presence in her life. This was not a matter that the judge had properly taken into account.
12. For his part, Mr Bates submitted that the fact here was that the second Appellant was not a qualifying child and her primary carer was her mother. Given that mother and child were to be removed together as a single family unit, especially in circumstances that the second Appellant's natural father only had discretionary leave until 2018, the judge was right to conclude as he did. He did give proper consideration to the best interests of the child. Neither of the two Appellants were British citizens and neither stood to be granted leave to remain. Their status was precarious. In the circumstances, the judge had to place emphasis on the public interest in immigration control (at paragraph 22), and when this was balanced against the "best interests" of the second Appellant child, the balance of considerations fell to be applied against the Appellants, particularly as "best interests" was not a trump card. This challenge was nothing more than a disagreement with the findings of the judge.
13. In reply, Mr Aslam Khan submitted that even though the second Appellant's natural father had discretionary leave to remain, it is entirely possible that after 2018 he would be granted indefinite leave to remain, in which case it would then lead to the second Appellant being separated from her natural father permanently. This was important given that the second Appellant was in a relationship with her natural father who picked her up from school and spent time with her daily. Secondly, the second Appellant child had an active family life relationship with her other siblings, all of whom are British citizens, and who live with the natural father's family, being his children, and the children of his current partner. The natural father's current partner has the second Appellant over at the weekends, and she herself has a family life interest with the second Appellant. These matters have not been considered.
No Error of Law
14. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are as follows. First, there is no suggestion here whatsoever, that the facts as presented to the judge at the time of the hearing, were wrongly understood by him. No such suggestion has been made before this Tribunal by Mr Aslam Khan, who did represent the Appellants on the earlier occasion as well. Indeed, Mr Khan has accepted that the Appellants are not financially independent, the first Appellant does not work, they are not British citizens, and the second Appellant is a not a "qualifying child".
15. Neither is it in dispute that insofar as the second Appellant has a relationship with her natural father, that he has only discretionary leave to remain until 2018. The essential issue, and the one on which permission to appeal was granted, arises in relation to the application of Section 55 of the BCIA 2009, and whether that application was lawfully undertaken. There is nothing to suggest that it was not.
16. The judge gave detailed consideration to the "best interests" of the child at paragraph 8(xxiii), noting the principle that Section 55 mandates a need to safeguard and promote the welfare of children. He also noted that the starting point is that it is in the best interests of the children to be "with both their parents". This is because "it is generally in the interests of children to have both stability and continuity of social and educational provision and the benefit of growing up in the cultural norms of the society to which they belong".
17. Due regard is given by the judge to the fact that lengthy residence in a country other than the state of origin can lead to development of social, cultural and educational ties. However, that what amounts to lengthy residence is not clear cut, it is the case that "past and present policies have identified seven years as a relevant period", whereby the seven years from age 4 are more important than the first seven years of a child's life. In this case, the second Appellant had not been in the UK for seven years and the judge was right to conclude that very young children "are focused on their parents rather than their peers and are adaptable" (paragraph 8(xxiii)).
18. Second, the judge also had regard to the important judgment of the Supreme Court in Zoumbas [2013] UKSC 74 where it was held that there was
"No irrationality in the conclusion that it was in the children's best interests to go with their parents to the Republic of Congo. No doubt it would have been possible to have stated that, other things being equal, it was in the best interests of the children that they and their parents stayed in the United Kingdom so that they could obtain such benefits as health care and education which the decision maker recognised might be of a higher standard than would be available in the Congo. But other things were not equal. They were not British citizens. They had no right to future education and health care in this country" (see paragraph 8(xxiv)).
19. Third, it was applying these principles, that led the judge to conclude that the Respondent proposed to remove the Appellants as a family unit to Jamaica, which was their country of nationality. There would be no interruption or intervention with the family life that the Appellants enjoy together. The Appellant child would be brought up in Jamaica with her mother. She would enjoy the stability and continuity of social and educational and health care provision and the benefit of growing up in the cultural norms of the society to which she belongs.
20. As the judge held, "there was no evidence before me to suggest that the second Appellant would be unable to adapt to life in Jamaica with the help of both her mother" such that "I conclude that the best interests of the Appellant child are served by her continuing to live with her mother and there is no irrationality in the conclusion that it is in the children's best interests to accompany her mother to Jamaica" (see paragraph 8(xxv).

Notice of Decision
21. There is no material error of law in the original judge's decision. The determination shall stand.
22. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 7th February 2017