IA/36008/2013 & Ors.
- Case title:
- Appellant name:
- Status of case: Unreported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country:
- Judges:
The decision
IAC-FH-NL-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/36008/2013
IA/36043/2013
IA/36048/2013
IA/36056/2013
THE IMMIGRATION ACTS
Heard at Bradford
Decision & Reasons Promulgated
On 20th January 2015
On 10th February 2015
Before
UPPER TRIBUNAL JUDGE D E TAYLOR
Between
mK
uI
kIK
qMK
(ANONYMITY DIRECTION MADE)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Ms Smith
For the Respondent: Mr M Diwnycz, Senior Home Office Presenting Officer
DECISION AND REASONS
1. This is the Appellants' appeal against the decision of Judge Saffer made following a hearing at Bradford on 7th January 2014.
Background
2. The Appellants are citizens of Pakistan. The principal Appellant arrived in the UK on 4th May 2004 as a student and was subsequently granted leave, first as a student and then as a Tier 1 (Post-Study) visa until 5th July 2013. Her husband joined her as a dependant on 25th January 2005 and the two children were born in the UK on 12th June 2006 and 8th June 2008 respectively
3. Their applications for leave to remain were refused on 14th August 2013. The Respondent said that the Appellants do not meet the requirements of the Immigration Rules with respect of private life and, although the elder child, was born in the UK and has lived here for over seven years, it was reasonable to require the family to leave.
4. The judge dismissed the appeal and, in doing so, wrote as follows:
"I do not accept the submission that the children are almost British. They are not British at all and have never been. It is clear from Zoumbas that the best interest test in ZH relates to British children. These children do not have the lifetime entitlement to education and health care that British children have. They are Pakistani children who have been raised in the false hope that they may be able to stay here. The fact that the parents choose not to speak to them in their mother tongue of Urdu is a failure of parental responsibility to seek to cut them off from their cultural heritage and presumably diminish the relationship they would, could, and should have with their family in Pakistan. That omission is easily rectified."
5. The Appellant sought permission to appeal on the grounds that the judge had wrongly stated that ZH (Tanzania) [2011] UKSC 4 did not apply to children in the UK. Since the judge failed to apply the correct test he had erred in law.
6. Permission to appeal was granted on that basis by Upper Tribunal Judge Jordan on 13th March 2014.
7. The Respondent served a reply on 24th November 2014 and accepted that the judge may have misunderstood whether the best interests consideration applied to non-British children in the UK. However in fact the judge did give detailed consideration to their best interests and the error was immaterial.
Submissions
8. Ms Smith relied on the grounds and said that the judge had not properly considered the best interests of the children and had he done so he would have found that removal would be a breach of their Article 8 rights. They were fully integrated into the UK, both having lived here since birth. English was their first language and the culture of Pakistan was alien to them. Although they had been to Pakistan on holiday for brief periods of time the bonds which tie them to the UK were far stronger.
9. She relied on ZH, in which the Supreme Court stated:
"It is not enough to say that a young child may readily adapt to life in another country. That may well be so, particularly if she moves with both her parents to a country which they know well and where they can easily re-integrate into their own community (as might have been the case for example in Poku, paragraph 20 above). But it is very different in the case of children who have lived here all their lives and are being expected to remove to a country which they do not know and will be separated from a parent whom they also know well."
10. Mr Diwnycz defended the decision and submitted that there was no real barrier to integration and it was entirely reasonable to expect the children to return with their parents to Pakistan.
Findings and conclusions
11. First, it has to be acknowledged that the judge was wrong to state that the best interests of the children was not a relevant consideration. Nevertheless, the conclusions which he reached are wholly sustainable.
12. This is not a case, as in ZH (Tanzania), where British children would be removed from a parent who remains in the UK. These children are Pakistani nationals and would be removed with both of their parents.
13. The test here is set out in paragraph EX.1 of Appendix FM to the Immigration Rules and applies here because the older child has lived in the UK continuously for at least seven years immediately preceding the date of application. It is whether it would be reasonable to expect the child to leave the UK.
14. The judge carefully considered all of the relevant circumstances, including the fact that the older child has friends at school and has many social activities. He also accepted that English was the children's first language but that he speaks and understands a little Urdu, and would be able to learn quickly. Suitable education was available to the children in Peshawar. They could reasonably re-settle there in school where the children's ability to speak English will be an asset to them. He was also satisfied that the parents would be able to find employment in Pakistan with their qualifications and would be able to provide for the children. The family have a network of support available to them and the children would be able to make friends in Pakistan as they have in the UK. The three surviving grandparents and other members of the immediate family are there.
15. The judge's overall conclusions on proportionality are unassailable.
Decision
16. The judge's decision stands. The Appellants appeals are dismissed.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.
Signed Date: 20th January 2015
Upper Tribunal Judge Taylor
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/36008/2013
IA/36043/2013
IA/36048/2013
IA/36056/2013
THE IMMIGRATION ACTS
Heard at Bradford
Decision & Reasons Promulgated
On 20th January 2015
On 10th February 2015
Before
UPPER TRIBUNAL JUDGE D E TAYLOR
Between
mK
uI
kIK
qMK
(ANONYMITY DIRECTION MADE)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Ms Smith
For the Respondent: Mr M Diwnycz, Senior Home Office Presenting Officer
DECISION AND REASONS
1. This is the Appellants' appeal against the decision of Judge Saffer made following a hearing at Bradford on 7th January 2014.
Background
2. The Appellants are citizens of Pakistan. The principal Appellant arrived in the UK on 4th May 2004 as a student and was subsequently granted leave, first as a student and then as a Tier 1 (Post-Study) visa until 5th July 2013. Her husband joined her as a dependant on 25th January 2005 and the two children were born in the UK on 12th June 2006 and 8th June 2008 respectively
3. Their applications for leave to remain were refused on 14th August 2013. The Respondent said that the Appellants do not meet the requirements of the Immigration Rules with respect of private life and, although the elder child, was born in the UK and has lived here for over seven years, it was reasonable to require the family to leave.
4. The judge dismissed the appeal and, in doing so, wrote as follows:
"I do not accept the submission that the children are almost British. They are not British at all and have never been. It is clear from Zoumbas that the best interest test in ZH relates to British children. These children do not have the lifetime entitlement to education and health care that British children have. They are Pakistani children who have been raised in the false hope that they may be able to stay here. The fact that the parents choose not to speak to them in their mother tongue of Urdu is a failure of parental responsibility to seek to cut them off from their cultural heritage and presumably diminish the relationship they would, could, and should have with their family in Pakistan. That omission is easily rectified."
5. The Appellant sought permission to appeal on the grounds that the judge had wrongly stated that ZH (Tanzania) [2011] UKSC 4 did not apply to children in the UK. Since the judge failed to apply the correct test he had erred in law.
6. Permission to appeal was granted on that basis by Upper Tribunal Judge Jordan on 13th March 2014.
7. The Respondent served a reply on 24th November 2014 and accepted that the judge may have misunderstood whether the best interests consideration applied to non-British children in the UK. However in fact the judge did give detailed consideration to their best interests and the error was immaterial.
Submissions
8. Ms Smith relied on the grounds and said that the judge had not properly considered the best interests of the children and had he done so he would have found that removal would be a breach of their Article 8 rights. They were fully integrated into the UK, both having lived here since birth. English was their first language and the culture of Pakistan was alien to them. Although they had been to Pakistan on holiday for brief periods of time the bonds which tie them to the UK were far stronger.
9. She relied on ZH, in which the Supreme Court stated:
"It is not enough to say that a young child may readily adapt to life in another country. That may well be so, particularly if she moves with both her parents to a country which they know well and where they can easily re-integrate into their own community (as might have been the case for example in Poku, paragraph 20 above). But it is very different in the case of children who have lived here all their lives and are being expected to remove to a country which they do not know and will be separated from a parent whom they also know well."
10. Mr Diwnycz defended the decision and submitted that there was no real barrier to integration and it was entirely reasonable to expect the children to return with their parents to Pakistan.
Findings and conclusions
11. First, it has to be acknowledged that the judge was wrong to state that the best interests of the children was not a relevant consideration. Nevertheless, the conclusions which he reached are wholly sustainable.
12. This is not a case, as in ZH (Tanzania), where British children would be removed from a parent who remains in the UK. These children are Pakistani nationals and would be removed with both of their parents.
13. The test here is set out in paragraph EX.1 of Appendix FM to the Immigration Rules and applies here because the older child has lived in the UK continuously for at least seven years immediately preceding the date of application. It is whether it would be reasonable to expect the child to leave the UK.
14. The judge carefully considered all of the relevant circumstances, including the fact that the older child has friends at school and has many social activities. He also accepted that English was the children's first language but that he speaks and understands a little Urdu, and would be able to learn quickly. Suitable education was available to the children in Peshawar. They could reasonably re-settle there in school where the children's ability to speak English will be an asset to them. He was also satisfied that the parents would be able to find employment in Pakistan with their qualifications and would be able to provide for the children. The family have a network of support available to them and the children would be able to make friends in Pakistan as they have in the UK. The three surviving grandparents and other members of the immediate family are there.
15. The judge's overall conclusions on proportionality are unassailable.
Decision
16. The judge's decision stands. The Appellants appeals are dismissed.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.
Signed Date: 20th January 2015
Upper Tribunal Judge Taylor