Tribunal decisions

The decision

UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Appeal No. IA/34600/2015,
IA/34601/2015,
IA/34604/2015,
IA/34607/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision Promulgated:
On: 1 February 2017
On: 3 February 2017

Before

Upper Tribunal Judge Pitt

Between

Secretary of State for the Home Department
Appellant
and

Lakhvir Singh Bhandal
Gurpreet Kaur
Jasleen Kaur
Param Veer Singh Bhandal
(ANONYMITY ORDER NOT MADE)
Respondent

Representation:
For the Appellant: Mr Tufan, Senior Home Office Presenting Officer
For the Respondent: Mr Ahmed, instructed by Dassaur Solicitors

DETERMINATION AND DIRECTIONS FOR REMITTAL

1. This is an appeal against a determination dated 17 August 2016 of First-tier Tribunal Judge Lodge which allowed the appellants' asylum and human rights appeal.
2. For the purposes of this decision I refer to the Secretary of State as the respondent and to the Bhandal family as the appellants, reflecting their positions before the First-tier Tribunal.
3. The core of this case concerns the two children of the family and whether it would be reasonable for them to live in India. Jasleen Kaur was born on 24 March 2004. She entered the UK on a visit visa with her mother on 23 June 2006 and has been here since then. Param Veer Singh Bhandal has remained in the UK since being born here on 26 March 2007.
4. It is undisputed that the parents and Jasleen are overstayers, having only ever had a 6 month visit visa. Param has never had any form of leave. It is undisputed that the parents lived all of their lives in India before coming to the UK.
5. The family maintained in the Article 8 application that the children qualified for leave under the private life provisions contained in paragraph 276ADE(iv) of the Immigration Rules. The relevant section of this provision states:

"276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

?

(iv) is under the age of 18 years and has lived continuously in the UK for at least seven years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK ? ."
6. The respondent did not agree. She maintained, as set out at paragraphs 31 and 32 of the refusal, that the children did not qualify for consideration under paragraph 276ADE at all, as they had not been in the UK for 7 years as of the date of the application which had been made on 22 February 2011. Jasleen had been in the UK for only 5 years as of the date of application. Param had been here for only 4 years as of the date of the application.
7. The respondent also maintained, in any event, that it was reasonable for the children to return with their parents as a family unit. They had experience of Indian customs, culture, language and social norms as they had grown up in an Indian environment in the UK and could adapt more easily to India.
8. At paragraphs 38 to 40 of the refusal letter, the respondent concluded that there were no exceptional circumstances that should lead to leave being granted outside the Immigration Rules even though it was relevant to that assessment that Jaspreen had been in the UK for 9 years and Param for 8 years as of the date of the decision. They were at an early stage of their education and returning within the family unit. Their parents could assist them to adjust. Their relationships were mainly within rather than outside the family. They had no special education needs and free education was available in India.
9. The First-tier Tribunal judge made the following findings on pargraph 276ADE at [10] to [14]:
"10. I turn to 276ADE(1)(iv). The Third and Fourth Appellants are under 18 years of age and have lived continuously in the UK for at least seven years, the issue is therefore whether it would be reasonable to expect them to leave the UK. There is little to distinguish between them, both have been in the UK for about the same length of time. The fact that the Third Appellant spent the first two years of her life in India is not, taken in the context of this case, significant. Both have been brought up in the UK, have attended school and formed the usual relationships. There is nothing to suggest that they are not completely integrated into British society.
11. Both the First and Second Appellants had the benefit of a Punjabi interpreter at the hearing. I was informed that the two children understand Punjabi though they cannot read and write it. I have no reason to doubt that that is the case. They have never been to India and such cultural ties as they have have been formed within their family and no doubt within the Indian community in the UK.
12. I have been presented with a plethora of documents in relation to the progress of the children at school. What is critical in my opinion is that the eldest child has now embarked upon her secondary education. As the Respondent accepts (see paragraph 38 reasons for decision letter) the critical age in a child's development is between 7 and 11 years of age. The eldest child has been through that critical period the younger is within that age bracket. Both have spent their primary school life in the English system.
13. I cannot but find that to disrupt their education at this critical stage would be unreasonable and not in their best interests. The disruption would involve having to adjust to an alien and unfamiliar environment where they are not proficient in the language, being unable to read and write Punjabi, even if they have some understanding of it.
14. I am satisfied that the Third and Fourth Appellants meet paragraph 276ADE (1) (iv)."
10. The respondent challenged this finding in section 2 of the grounds, thus:
"In considering whether it was reasonable for the children to return, the FTJ has ignored the immigration history of the lead appellants and that they are flagrant overstayers. He also completely overlooked what kind of support might be available to the children from their parents were they to return to their home country."
11. The grounds seek support for this argument from MA (Pakistan) [2016] EWCA Civ 705. The ratio of that case is, in my judgement, key to the error of law arguments here as it addresses the proper approach to an assessment of "reasonableness" under paragraph 276ADE(iv) (and section 117B(6)) of the Nationality, Immigration and Asylum Act 2002). The Court of Appeal in MA, with some reluctance, at [45] adopted the ratio of MM (Uganda) [2016] EWA Civ 450 to the effect that in the reasonableness assessment either under or outside the Immigration Rules, the "wider public interest considerations must be taken into account". This was so, albeit, at [46], the Court identified that "where the seven year rule is satisfied, it is a factor of some weight leaning in favour of leave to remain being granted".
12. At [47], the Court of Appeal also identified that even if a child's best interests were in staying in the UK:
"? it may still not be unreasonable to require the child to leave. That will depend on 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."
and at [54]:
"There is nothing intrinsically illogical in the notion that whilst it is in the child's best interests are for him or her to stay, it is not unreasonable to expect him or her to go. That is so even if the reasonableness test should be applied so as to exclude public interest considerations bearing upon the parents."
13. In the First-tier Tribunal reasonableness assessment here, there is no reference to the "wider public interest considerations", in particular the potentially material factor of the parents having come as visitors and overstayed for a considerable period of time or, as the grounds point out, how renewable the children's connection to India might be where they have been brought up "within the Indian community in the UK" and will have the support of their Indian parents in readapting.
14. The assessment is also in error in reaching a conclusion on best interests at [13] and, without more, finding this to be the answer to the "reasonableness" question at [14], contrary to the indication of the Court of Appeal that the two assessments are potentially materially different. For bot of these reasons I concluded that the decision of the First-tier Tribunal disclosed a material error on a point of law such that it had to be set aside to be re-made.
15. A new ground of challenge arose at the hearing, that the children did not, as a question of fact, fall to be considered under paragraph 276ADE. This was noted by the respondent at 31 and 32 of her decision so the point was before the First-tier Tribunal judge. As the Court of Appeal set out at [13] of MA (Pakistan):

"13. Some preliminary observations can be made about rule 276ADE(iv) and section 117B(6). First, they are similarly framed: both require seven years' residence and in both a critical question is whether it would be unreasonable for the child to be expected to leave the UK. Second, the concept of seven years' residence may not be calculated in precisely the same way in the two provisions. rule 276ADE(1) states in terms that the period must be assessed as at the date of the application. However, the Secretary of State conceded that as a result of section 85(4) of the 2002 Act, the relevant date for the purpose of section 117B is the later date when the court is making its determination."
16. Mr Ahmed pointed out quite rightly that this issue was not contained within the grounds of appeal upon which permission had been granted. It was my view that where the law had clearly been applied incorrectly, this was a "Robinson obvious" ground which should be admitted even at this stage. The decision must also be set aside to be re-made for this reason and in the re-making the appellants are not entitled to consideration under have paragraph 276ADE(iv).
17. For completeness sake I should also indicate that it was agreed by the parties that the First-tier Tribunal erred at [16] in finding that the parents were entitled to consideration under paragraph EX1 of Appendix FM as this route is barred to them, regardless of whether the children fell to be considered under paragraph 276ADE as the parents could not meet the eligibility requirements of the Immigration Rules.

DECISION

13. The decision of the First-tier Tribunal discloses an error on a point of law such that it is set aside to be re-made.

14. The appeal is remitted to the First-tier Tribunal to be re-made de novo.

DIRECTIONS

15. The appeal will be heard at the Birmingham hearing centre on the first available date before a panel other than First-tier Tribunal Judge Lodge.

16. No later than 7 days prior to the hearing, the parties are to file with the First-tier Tribunal and serve on the other party ALL evidence relied upon in a consolidated, indexed and paginated bundle.

Signed: Date: 2 February 2017

Upper Tribunal Judge Pitt