Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/36265/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13th September 2016
On 14th September 2016

Before

UPPER TRIBUNAL JUDGE COKER

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ADETOLA [L]
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Ms A Fijiwala, Senior Home Office Presenting Officer
For the Respondent: In person

DETERMINATION AND REASONS
1. Mrs [L] applied on 6 March 2014 for leave to remain in the UK on the basis of her private and family life. Her husband and three children are her dependants. Her application was refused and her appeal was heard and allowed by the First-tier Tribunal in a decision promulgated on 23 March 2016. The First-tier Tribunal found (such finding not being challenged) that she does not meet the Immigration Rules and thus her appeal was to be considered under the 'wider' Article 8 considerations. The SSHD does not challenge the underlying factual findings by the First-tier Tribunal but rather their application (or non-application) in the context of the human rights appeal.
2. The SSHD sought and was granted permission to appeal on the grounds that although the First-tier Tribunal judge had self-directed her approach by reference to MK (India) [2011] UKUT 475 and E-A (Nigeria) [2011] UKUT 315 and ZH (Tanzania) [2011] UKSC 4, the assessment of proportionality was flawed. The SSHD relied upon EV (Philippines) & Ors v SSHD [2014] EWCA Civ 874 in her grounds seeking permission.
3. Before me Ms Fijiwala relied in addition upon MA (Pakistan) [2016] EWCA Civ 705 which sets out the correct analysis to be applied as follows:
"45. However, the approach I favour is inconsistent with the very recent decision of the Court of Appeal in MM (Uganda) where the court came down firmly in favour of the approach urged upon us by Ms Giovannetti, and I do not think that we ought to depart from it. In my judgment, if the court should have regard to the conduct of the applicant and any other matters relevant to the public interest when applying the "unduly harsh" concept under section 117C(5), so should it when considering the question of reasonableness under section 117B(6). I recognise that the provisions in section 117C are directed towards the particular considerations which have to be borne in mind in the case of foreign criminals, and it is true that the court placed some weight on section 117C(2) which states that the more serious the offence, the greater is the interest in deportation of the prisoner. But the critical point is that section 117C(5) is in substance a free-standing provision in the same way as section 117B(6), and even so the court in MM (Uganda) held that wider public interest considerations must be taken into account when applying the "unduly harsh" criterion. It seems to me that it must be equally so with respect to the reasonableness criterion in section 117B(6). It would not be appropriate to distinguish that decision simply because I have reservations whether it is correct. Accordingly, in line with the approach in that case, I will analyse the appeals on the basis that the Secretary of State's submission on this point is correct and that the only significance of section 117B(6) is that where the seven year rule is satisfied, it is a factor of some weight leaning in favour of leave to remain being granted.
Applying the reasonableness test
46. Even on the approach of the Secretary of State, the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise. Indeed, the Secretary of State published guidance in August 2015 in the form of Immigration Directorate Instructions entitled "Family Life (as a partner or parent) and Private Life: 10 Year Routes" in which it is expressly stated that once the seven years' residence requirement is satisfied, there need to be "strong reasons" for refusing leave (para. 11.2.4). These instructions were not in force when the cases now subject to appeal were determined, but in my view they merely confirm what is implicit in adopting a policy of this nature. After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK. That may be less so when the children are very young because the focus of their lives will be on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child's best interests will be to remain in the UK with his parents as part of a family unit, and that must rank as a primary consideration in the proportionality assessment.
47. Even if we were applying the narrow reasonableness test where the focus is on the child alone, it would not in my view follow that leave must be granted whenever the child's best interests are in favour of remaining. I reject Mr Gill's submission that the best interests assessment automatically resolves the reasonableness question. If Parliament had wanted the child's best interests to dictate the outcome of the leave application, it would have said so. The concept of "best interests" is after all a well established one. Even where the child's best interests are to stay, it may still be not unreasonable to require the child to leave. That will depend upon 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. What could not be considered, however, would be the conduct and immigration history of the parents.
48. In EV (Phillipines) Lord Justice Christopher Clarke explained how a tribunal should apply the proportionality test where wider public interest considerations are in play, in circumstances where the best interests of the child dictate that he should remain in the UK (paras. 34-37):
"34. In determining whether or not, in a case such as the present, the need for immigration control outweighs the best interests of the children, it is necessary to determine the relative strength of the factors which make it in their best interests to remain here; and also to take account of any factors that point the other way.
35. A decision as to what is in the best interests of children will depend on a number of factors such as (a) their age; (b) the length of time that they have been here; (c) how long they have been in education; (c) what stage their education has reached; (d) to what extent they have become distanced from the country to which it is proposed that they return; (e) how renewable their connection with it may be; (f) to what extent they will have linguistic, medical or other difficulties in adapting to life in that country; and (g) the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens.
36. In a sense the tribunal is concerned with how emphatic an answer falls to be given to the question: is it in the best interests of the child to remain? The longer the child has been here, the more advanced (or critical) the stage of his education, the looser his ties with the country in question, and the more deleterious the consequences of his return, the greater the weight that falls into one side of the scales. If it is overwhelmingly in the child's best interests that he should not return, the need to maintain immigration control may well not tip the balance. By contrast if it is in the child's best interests to remain, but only on balance (with some factors pointing the other way), the result may be the opposite.
37. In the balance on the other side there falls to be taken into account the strong weight to be given to the need to maintain immigration control in pursuit of the economic well-being of the country and the fact that, ex hypothesi, the applicants have no entitlement to remain. The immigration history of the parents may also be relevant e.g. if they are overstayers, or have acted deceitfully."
49. Although this was not in fact a seven year case, on the wider construction of section 117B(6), the same principles would apply in such a case. However, the fact that the child has been in the UK for seven years would need to be given significant weight in the proportionality exercise for two related reasons: first, because of its relevance to determining the nature and strength of the child's best interests; and second, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary."
4. The First-tier Tribunal took as its starting point the question of what was in the best interests of the children and found that it was in their best interests to remain in the UK ([43] of the First-tier Tribunal decision). The judge did not thereafter consider, even though it was in the children's best interests to remain in the UK, whether in all of the circumstances, taking into account s117B Nationality Immigration and Asylum Act 2002, it was reasonable for them to remain and thus that the decision of the respondent disproportionate. The First-tier Tribunal stopped its analysis at determining the best interest of the children and failed to consider the totality of the evidence in its assessment.
5. The First-tier Tribunal failed to weigh in its assessment, for example, the public interest, the precarious immigration status of Mrs [L], her husband's criminal conviction, the utilisation of public funds with regards education, health and accommodation as well as the children's length of residence and their and their parents ties with Nigeria.
6. The decision of the First-tier Tribunal discloses material errors of law such that I set the decision aside to be remade.
7. When I have set aside a decision of the First-tier Tribunal, s.12(2) of the TCEA 2007 requires me to remit the case to the First tier with directions or remake it for myself. I conclude in this case the application of the factual matrix of this appeal requires an assessment by the First-tier Tribunal to be undertaken applying the correct legal framework, a matter which in the context of this appeal should not be undertaken by the Upper Tribunal. I therefore remit the appeal to the First-tier Tribunal.
Conclusions:
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision
I remit the appeal to the First-tier Tribunal

Date 13th September 2016

Upper Tribunal Judge Coker