Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/32082/2015
IA/32086/2015
IA/32088/2015
IA/32089/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision Promulgated
On: 11th January 2017
On: 13th January 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Secretary of State for the Home Department
Appellant
And

OOE
AME
JAE
EGE
Respondent

For the Appellant: Mr McVeety, Senior Home Office Presenting Officer
For the Respondent: Mr Singh, Greater Manchester Immigration Aid Unit

DETERMINATION AND REASONS
1. The respondents were at the date of decision all nationals of Nigeria. They are respectively a mother, father and two minor children, born in 2006 and 2010. On the 14th July 2016 the First-tier Tribunal (Judge Lloyd) allowed their linked human rights appeals. The Secretary of State now has permission to appeal against that decision, granted by First-tier Tribunal Judge Dineen on the 3rd November 2016.

Anonymity Order
2. There is no reason why the identity of the adult respondents should be protected. Their case does however turn on the presence in the United Kingdom of their two young children. I have had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders. I am concerned that identification of the adult respondents could lead to identification of their minor children and I therefore consider it appropriate to make an order in the following terms:
"Unless and until a tribunal or court directs otherwise, the Respondents are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies to, amongst others, both the Appellant and the Respondents. Failure to comply with this direction could lead to contempt of court proceedings"

Matters in Issue
3. The case before Judge Lloyd was that the third appellant (now respondent) was a 'qualifying child', that is to say a child who had spent a continuous period of at least seven years living in the United Kingdom. It was submitted that the quality of his private life was such that it would not be 'reasonable' to expect him to now leave the United Kingdom and that as such his appeal should be allowed with reference to paragraph 276ADE(1)(iv), his parents appeals with reference to s117B(6) of the Nationality, Immigration and Asylum Act 2002, and his younger sister's appeal under Article 8 'outside of the rules'. These submissions were all accepted by Judge Lloyd and all four appeals were allowed.
4. The Secretary of State for the Home Department does not dispute that the third respondent did have an arguable case under paragraph 276ADE(1)(vi), or that the consequences of that for the remaining family members were as found by Judge Lloyd. The complaint is that in his assessment of whether it was 'reasonable' for the child to leave the United Kingdom the Judge has confined his analysis to matters relating to the child, such as his level of integration. The Secretary of State simply places reliance on the decision of the Court of Appeal in MA (Pakistan) [2016] EWCA Civ 705 to the effect that in assessing what is 'reasonable' the court must weigh in countervailing factors, such as the matters set out at sub-sections (1)-(5) of s117B.
5. It is a moot point whether this ground is made out. The determination certainly addresses the public interest factors (see paragraph 36) and although it is arguable that the Judge did not expressly weigh these in to the assessment of reasonableness (as opposed to proportionality) it was apparent at the hearing before me that it now matters not. That is because the child in question has since naturalised as a British citizen. He therefore does not need to worry about the Secretary of State's appeal, and for the reasons which follow, nor do his parents.
6. The court in MA agreed [at 14-20] with the analysis of the President of this Tribunal in Treebhawon and Ors (section 117B(6)) [2015] UKUT 674 (IAC) that sub-section (6) is a stand-alone provision. Unlike the matters at subs-sections (1)-(5) the reasonableness of expecting a qualifying child to leave the United Kingdom is a matter capable of determining the outcome of the proportionality balancing exercise. In the lead judgement Elias LJ accepted - albeit reluctantly - that the question of what was 'reasonable' is not confined to the best interests of the child. The decision-maker must look to the countervailing factors, as well as other matters such as the Secretary of State's own policy guidance. In the case of British children, that policy guidance, set out in the Immigration Directorates' Instructions, Family Migration Appendix FM Section 1.0 at 11.2.3 reads:
"Where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case must always be assessed on the basis that it would be unreasonable to expect a British citizen child to leave the EU with that parent or primary carer".
7. That is in accordance with the concession made in Sanade v Secretary of State for the Home Department [2012] UKUT 48 (IAC). Mr McVeety did not seek to persuade me that the guidance was not relevant. Applying that guidance I find that it would not be reasonable to expect the third respondent to leave the United Kingdom. There being no dispute that his parents both enjoy a genuine parental relationship with him, or that the child would have to leave the country if they did, it follows that in any remaking this appeal would have to be allowed. Any error in the First-tier Tribunal decision is not therefore material.

Decision
8. The determination of the First-tier Tribunal does not contain an error of law such that it must be set aside.
9. There is an order for anonymity.

Upper Tribunal Judge Bruce
11th January 2017